Sotomayor
I’ve had the pleasure of meeting Judge Sotomayor and hearing her speak on several occasions. When I clerked at the Second Circuit, our chambers went out to lunch with her chambers. A few years later (I believe it was 2006), she was the recipient of the Yale Latino Alumni Association’s public service award. And then last fall she came up to Cornell to speak with the Latino Law Students Association and I had the privilege of having dinner with her.
Judge Sotomayor is every bit as inspiring in person as her life story suggests. She’s modest, plain-spoken, down-to-earth and insightful. During her visit to Cornell, she spent hours with the law students in the student lounge. Her Q&A session went nearly an hour over its scheduled time. She never looked at her watch. She just kept answering the students’ questions and even asking them a few questions of her own. In the end, we had to pry her away from them to keep from losing our dinner reservation.
Watching her on the bench during my clerkship, what was particularly impressive to me was that, after years of working as a lawyer and then as a district judge, she had retained the ability to be offended by injustice. It’s all too rare a feat in our profession.
Republicans will attack this extraordinary woman at their own peril. Early attempts to paint her as a “liberal activist” (whatever that means) will not stick. Those who take the time to read her opinions will find them to be straight-forward, thorough, and well written. She’s a tempermentally moderate judge from a tempermentally moderate court.
Perhaps the most offensive criticism to arise to date has been the charge that she is somehow not intellectually up to snuff. I find this mind boggling. This is a woman who graduated summa (and phi beta kappa) from Princeton, and then went on to do extremely well at the Yale Law School (where she made the Law Journal). She excelled in practice and then as a federal judge. Some have suggested that the criticism is so off-base that it must be rooted in racism. That’s not a charge that I throw around lightly, but in this case it may have some merit. Although it originated with some anonymous smears in a Jeff Rosen article, the criticism has been picked up by the right and was repeatedly most recently last night by that unrepentant racialist and openly anti-Latino bigot Pat Buchanan (he of the “scrub stock” comment about Daniel Ortega a few weeks back). And it certainly draws its power from the standard stereotypes Latinos have to live with day in and day out, no matter how much we have accomplished.
Perhaps, though, the smear is rooted as much in class bias as in racism. Like many of us who came to the Ivy League from more modest backgrounds, Sotomayor speaks normal English in normal sentences, as opposed to the baroque, paragraph-long orations I frequently heard from my prep-schooled colleagues at Yale Law. Those who like to speak in well-formed paragraphs frequently confuse their strange way of talking for intelligence, and often make the mistake of assuming that those who don’t share their rarified style of oral communication are simply dull. This usually ends up working to the advantage of those who are so maligned, since people are constantly underestimating them. And I think the same will ultimately prove true in Sotomayor’s case. As they get to know her throughout the confirmation process, the American people will see that Judge Sotomayor is more than up to the task of being a Supreme Court justice. And Republicans who make the mistake of believing she is unintelligent will find her running circles around them at her confirmation hearings — and she’ll do it in her typical, plain-spoken, down-to-earth way.
UPDATE: The suggestion that the right is going to use racial appeals in their opposition to Sotomayor got a boost from several recent posts. First, Mark Krikorian complains about the propriety of Sotomayor pronouncing her name correctly. Curt Levy says she was picked because of her race and gender. Tom Tancredo (!) accuses her of being “a racist.” Michael Goldfarb then chimes in with this post, which digs into Sotomayor’s college activism in the 1970s (I’m not kidding) to simultaneously try to paint her as a radical and as the lifelong beneficiary of affirmative action. This will, of course, backfire, and simply serve to bring more Latinos around to the conclusion that the modern Republican party is no place for them.
Yes, I found her remark,
“I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina woman.”,
to be impressive. Oh, wait…
Bob, were you in attendance when Sotomayor delivered the Judge Mario G. Olmos Memorial Lecture at Berkeley in 2001, or did you read the published text? Either way, I am sure you noted the context of the sentence quoted above; namely, that it was part of a lengthy exploration of the roles that race and gender play in professional and judicial decisions. Here is the full paragraph — which appears on page 5 of the NYT transcript):
As is plain from the paragraphs immediately before and after this one, Sotomayor is here speaking specifically about conclusions reached in cases that touch on women’s rights and minority rights. Given that fact, and given her acknowledgment of the difficulty in defining “wise,” and given her repeated acknowledgment of the judicial ideal of impartiality earlier in the speech, I guess I would have to agree with you that that particular sentence is impressive, if only for its honesty.
Nice job, Eduardo. We do seem to be in for a treat from this marvelous woman. I bet that those negative quotes about her that got more press than her clearly solid attributes came from mediocre lazy colleagues who have not raised their game the way she does.
And are you ever so right, Eduardo, about the Repbublicans and the confirmation hearings. The astute ones will be polite and circumspect, realizing how their foolishness can backfire.
Thanks for posting that Mollie. Many conservatives (Mr. Schwartz will likely not be among them) are now backing off on that line of attack as they read the full text. Rod Dreher, e.g.:
http://blog.beliefnet.com/crunchycon/2009/05/i-was-wrong-about-sotomayor-sp.html
Still, it could get ugly, as the Times report on conservative molizing shows:
http://thecaucus.blogs.nytimes.com/2009/05/27/interest-groups-prepare-to-battle-on-sotomayor/?hp
But there’s also the backlash the GOP has to worry about.
When I heard her nomination acceptance speech, I was moved to tears. I knew nothing about this woman, and her story was just outstanding.
Then I heard about the white firemen, and read her “wise Latina” remark, and realized that she considers herself one of the “holy and wise victims” who have a thing or two to teach the despised “white males” of the world.
Mollie: Forgive me, but I see nothing in that paragraph that contextualized her statement in a manner that would contradict the point I was making. We now know how she perceives white males and Latinas. And that’s her problem.
I suspect judge Sotomayor will fairly sail through since I doubt she will be attacked as, for example, Justice Thomas was. She is clearly qualified, and not corrupt. I hope that the GOP senators will not follow the example of their Dem counterparts and politicize the process, but if they do, we all know who let that genie out of the lamp – thanks Teddy.
Mollie,
Regardless of the context, this statement is for many of us who object to her, and Pres Obama’s, philosophy troubling. Do you want to be a plaintiff in a case where the judge, because he is a man makes a “better” decision on behalf of the defendant because the defendant is a man? Remeber, there are two sides to every case, and for every “better” decision a judge makes for one party, the is a not “better” decision for the other. Liberals assume that activism will always innure to their benefit. So far, it mostly has. The objection to activism, however, is not that it is liberal but that it tends to be anti-democratic.
“Republicans will attack this extraordinary woman at their own peril.”
I am not clear of what they would be in peril of. Losing the non-Cuban Caribean-American vote? I am quite certain if there are non-Cuban Caribean-Americans still either identifying as, or voting for, Republicans, they are probably not going to leave the party on account of attacks on Judge Sotomayor.
I would hope that the Sotomayor confirmation process would frontally attack the conservative claim that their justices interpret the Constitution and that liberals are “activists.” When the conservatives disable Congressional power (contrary to many decades of judicial precedent and in some cases obviously mangling the Constitution, e.g., the eleventh amendment cases) and when they overthrow affirmative action (despite the original meaning of the 14th amendment all the while claiming that they adhere to original meaning), it is hard to understand why their decisions are not activist. They certainly interfere with democracy (if democracy is understood as legislative power). But democracy is not always legislative power; if it were there would be no room for enforceable individual rights. Staring at the word activist does not help in the process of constitutional interpretation. It is just an ideological term employed by conservatives, and it should be understood as such.
Sean, I think it’s a mistake to identify that sentence, even with regard for its context, as Sotomayor’s “philosophy.” She was asked to deliver an address specifically about being a Latina judge, and she did — engaging several different viewpoints about how (and whether) things like gender, race, and background affect a person’s approach to the law. She noted that some have argued that a background like hers would make a judge less “wise” — whatever “wise” means — and others have argued that background should make no difference. Her view is that it’s silly to pretend backgrounds are irrelevant, and, knowing that she would be affected in some way by her personal background, she said she “would hope” that it would increase her judicial wisdom, in a case where it would be relevant. (She goes on to note that an important part of a judge’s job is discerning when such things are relevant.)
And Bob, that’s a very, very far cry from what you are claiming she has said.
“As is plain from the paragraphs immediately before and after this one, Sotomayor is here speaking specifically about conclusions reached in cases that touch on women’s rights and minority rights.”
Mollie–I don’t think you realized the full implications of your statement when you made it. If Sotomayor is more qualified to rule on cases involving women and minorities, it must logically follow that she is less qualified (and less wise) when it comes to ruling on cases involving white males. In fact, we should only have white males rule on cases involving white males, since they must be wiser in this regard based on their lived experiences. You sure you want to go down that road? I know I don’t. IF she is more qualified to rule on certain cases, that will become apparent in her opinions. It has nothing to do with her being a woman or a minority. The proof is (or isn’t) in the pudding. Now, about her ruling on the case of the firefighters…
1. There are no news & analysis outlets that are completely “objective.” But http://www.politico.com would be among those closest. I invite you to check out the articles on Sotomayor there since yesterday. Its feature “The Arena,” whose participants are a fair mix of different political stripes, ain’t bad either.
2. Even the NYT has got a little better. Not its editorials which are predictable, but its “roundtable” format in which, with mixed success, it invites conservatives and liberals for short takes. Below is one from yesterday, which includes the libertarian Richard Epstein who considers Sotomayor’s nomination a disappointment in terms of, yes, intellect. He favors Diane Wood, his colleague at Chicago Law: not because they are ideologically similar – Wood is liberal, Epstein is libertarian – but because he considers Wood a far superior intellect than Sotomayor.
http://roomfordebate.blogs.nytimes.com/2009/05/26/obamas-first-choice-for-the-supreme-court/
3. Eduador Penalver’s post above is clearly a homer opinion. For me, the verdict on her intellectual remains wide open. Guess we’ll learn more about her in the weeks to come. That said, from what I’ve read so far I’d agree with Sean Hannaway’s take on the likelihood that she’ll sail through this confirmation (barring disclosure of ethical violations.) As suggested by the author below, the Republicans will likely take a page from the Democrats vis-a-vis Roberst and Alito & save their salvo for Obama’s next nomination
http://www.scotusblog.com/wp/the-dynamic-of-the-nomination-of-sonia-sotomayor/
“Eduador Penalver’s post above is clearly a homer opinion.”
To clarify: I meant “homer” in terms of ideology, not ethnicity. (And it should be “a homer’s opinion,” right?)
The Reviews Are In: http://firstread.msnbc.msn.com/archive/2009/05/27/1944668.aspx
—
Excerpts:
The New York Daily News’ cover: “Pride of The Bronx” with an accompanying eight-page “special report.”
The New York Post’s cover: “Suprema” over a photo of Sotomayor.
The Boston Globe’s Canellos raises this point: “The Supreme Court nomination of Judge Sonia Sotomayor, a candidate more likely than some on President Obama’s short list to arouse Republican opposition, could complicate the president’s task on another major agenda item — healthcare.”
And New York sports-writer-turned-occasional-political-columnist Mike Lupica throws cold water on the assertion that Sotomayor saved baseball. “There is a difference between saving a season — and a union — and saving a sport…
I’m sure there are smarter people out there. There always are. Is Diane Wood one of them? I don’t know. Clearly Epstein knows her better than he knows Sotomayor, so while I trust his views on Wood’s intellect, I don’t think he’s as knowledgeable about the nominee. In any event, my point is not that she’s the smartest person (or even judge) in the entire universe, just that she is plenty smart enough. She would, in my opinion, be among the smarter justices on the Court, though no one is as smart as my former boss, Justice Stevens.
Mollie–I don’t think you realized the full implications of your statement when you made it. If Sotomayor is more qualified to rule on cases involving women and minorities, it must logically follow that she is less qualified (and less wise) when it comes to ruling on cases involving white males.
That’s not a statement I made — and Sotomayor didn’t say that either. She didn’t say Latinas are wiser than white men. And she didn’t say Latinas are better suited to judging cases involving minorities than are white men. Once again, she said, given that her background will undoubtedly affect her somehow — something she admits is inevitable, which admission was the main point of her speech — she would hope that it would make her wiser (and not less wise) than someone without that background in cases where it was relevant.
“This will, of course, backfire, and simply serve to bring more Latinos around to the conclusion that the modern Republican party is no place for them.”
Assuming, ad arguendo, (1) the “right” will make an appeal to racism in their opposition to Judge Sotomayor and (2) the “right” is synonymous with the “modern Republican party”, how is that “backfire[ing]“? It could only “backfire” if the aim of using “racial appeals in their opposition” was to “bring more Latinos around” to the “modern” GOP. I do not have much insight into the “modern” GOP – admittedly, I actually do not even know the distinction between the “modern” GOP and non-”modern” forms of the party – but I reckon if, again, assuming ad argeundo the allegations being made are correct, the aim of those racist appeals would not be to “bring more Latinos around” but perhaps have some other goal. Mr. Krikorian, for example, mentioned “…[m]ost e-mailers were with [him]…”, which seems to imply to me his “racial appeal” was perhaps directed at that audience, whoever they may have been composed of.
I wonder what happened to William Buckley’s old saw about the Boston telephone book.
Now I can’t remember where I read it — I think it might have been a U of C publication (hubby is an alum) but I’m not sure — but we laughed a lot when we read Epstein’s little diatribe about Obama and how he left U of C without “allowing” the luminaries there too “really” influence his thinking in any profoundly challenging way. Epstein hasn’t met ANYBODY in the last 20 who is as smart as his office neighbors. What he is really voicing is a preference for raw intellect over all other positive attributes.
I used to think that intellect was the most important thing for a judge, but it’s really not. You know what really matters? The ability to pay attention closely to what’s going on, sort through a lot of dreck and find the most important facts and tune out the ones that don’t matter, and then decide things with a clear head.
Judges have to be smart enough, clearly. But think of judges like coaches: the best coaches aren’t necessarily drawn from the best athletes — they are those who can lead others to where they need to go. I don’t mean this in any activist sense. I mean this in the sense that an effective judge is not just one who makes “the right” decision but one who does so persuasively.
One of the real problems with overly intellectual judges, or too many of them, like Scalia, a luminary who presumably passes Epstein’s test because he taught inside the Ivy covered walls of the U of C — is that they aren’t persuasive. This may be for a number of different reasons — they may be too persuaded by a theoretical view and don’t seem to be willing to examine it in the light of circumstances. But usually, they are so smart they don’t see how other people could disagree with them, and therefore, don’t necessarily challenge — even if to reconfirm — their own views by testing them against those held by others. Reading a Scalia opinion all too often is like reading the Book of Genesis (not on all subjects, but a lot of them).
So you can spare me the talk about how Sotomayor isn’t smart enough. There are a lot of people smart enough to be a Supreme Court Justice and I am virtually positive she’s one of them. As is Judge Wood, of course. But it’s not an IQ contest and only people like Epstein who pegs his self-worth to his sense of intellectual superiority could really think it is.
Always amazing how white males are so sensitive about being criticized. One can say that to a certain extent about black and hispanic males despite their history of being in the minority. Shirley Chisolm anyone? Limbaugh, O’Reilly, Rumsfeld, JFK, Chaney, W, Hyde…..
One could see where women might want to say something about that kind of acting out…
When I start a statement with “I like to think,” or “I would hope” as Sotomayor did, I am setting it up for a conclusion that would receive a subjunctive dependent clause, which is to say, it is an expression of DOUBT not unqualified affirmation.
For an example, finish the following sentence: “I would hope that Catholic nuns and priests would be more humane teachers than their lay counterparts . . .”
But it’s not necessarily the case, is it?
I am all for debate about Sotomayor but this kind of word parsing not only out of context but without the merest application of common sense is not real debate. It’s back into a rationale from a conclusion that has already been reached.
MAT, regarding your point (the counterpart to a “better” decision by a Latina on some things is a “better” decision by white males on others).
1. I think it’s important to recognize the principle that Ralph Ellison pegged as being “The Invisible Man,” which is to say, that ON AVERAGE a minority such as Sotomayor is much more knowledgeable about majority culture than vice versa. After all, she went to majority institutions, works alongside white men, etc. So the reverse is not necessarily true at all, or not to the same degree.
2. I don’t think she would necessarily disagree with your analogy if it pertains to things that are truly outside her sphere of knowledge. Learning it to come to a judgment isn’t the same as knowing it. So let me give you an example with a funny story.
One of the first cases I had as a clerk pertained to a title search that failed to unearth a defect, which led to the loss of property and a lawsuit against the title company. The issue was the reasonableness of the title search. I was completely flummoxed: what constitutes a reasonable title search? So I talked to my judge, who asked me who the judge below was, and I told him, and he said, “Oh, in that case, I’ll affirm — Judge R worked his way through law school doing title searches and if there’s anyone who knows what a reasonable title search is, it’s him.”
That’s not much of a standard is it? But it does point out the fact that I would have needed to do hours and hours of research and learning to feel halfway educated on something like that, and not everyone, not every judge is willing to do that, especially if they have convinced themselves that their legal philosophy gets them 90% of the way there anyway.
Barbara: It seems to me that the spinning and parsing and searching for nuance is coming from those who are desperate to neutralize the impact of Sotomayor’s “wise Latina” remark. I’m a straightforward kind of guy, so what I hear her saying is what I hear her saying.
Bill:
And your point is…? Let’s say you are right about white guys being sensitive. So what? That has no bearing on the true interpretation of “wise Latina”.
Im not spinning. I hear people make all kinds of similar statements: “Because I’m from a small town . . .”; “Because I worked my way through school doing menial labor . . .”; Because I lived abroad for a lot of my childhood”; “Because I served in the army”; and so on.
People like to think that their particular circumstances and identity will give them a kind of credibility and insight into particular types of situations. This is controversial? I have no problem admitting that Antonin Scalia knows more about the social ties of Italian Americans in an organized crime ring than I do and that knowledge could be helpful in evaluating certain types of defenses in a RICO case.
And, indeed, I do think that “someone who served in the army” does have more credibility and insight into lawsuits involving the army.
That’s not a problem.
The real problem is whether background and identity translate into bias — in favor of some groups or against others — for instance, if one was in the army one might be overly persuaded by the arguments made on behalf of the army why it’s important to morale not to permit gays to serve, or whatever.
This is a concern — but to say “I might be better at deciding cases with these kinds of facts” isn’t the same as “and oh by the way I’m always going to rule in a way that advantages the Latina involved in the case.” That’s the leap I don’t make and for which I doubt you have much if any evidence.
“MAT, regarding your point (the counterpart to a “better” decision by a Latina on some things is a “better” decision by white males on others).”
I believe you meant to address Mark Proska, correct?
Sorry MAT, Just remembered it started with M . . .
No need to apologize – just wanted to to clarify as it took me some time to back-into what the original post you were referring to was.
Bob, it isn’t “straightforward” to ignore the context of the remark you’re trying to interpret. The fact is, what you “hear her saying” doesn’t square with what she actually said.
I, for one, would be intrigued to hear more about what she meant by referring to the “inherent physiological . . . differences” that might be relevant to “our gender and national origins.”
By the way, Peggy is coming up to my neck of the woods to give a lecture tomorrow night. In a non-Catholic Greek Orthodox church no less. Sponsored by a group of nuns. What nerve. I am bringing all the White Males I can muster up.
Barbara
It is not that anyone thinks that experiences of different types don’t matter, but a judge isn’t supposed to apply unique “insights” gained by experience in judging cases. He or she is supposed to interpret and apply the law to the facts before him or her.
Unlike what Bill says, this is not about “while males” not wanting to be criticized. Most of the women I know are probably better people than me, so I don’t mind that.
The statement were it made by a white male would likely be the end of that white male’s carreer. Think about it – Scalia says – “I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.” I am perfectly willing to accept that there is a different historical context, and that the comments aren’t equal, but you have to admit that there is an underlying problem with that way of thinking regardless of the sex or race of the person making it.
This way of thinking is dangerous – it treats whole groups of people the same. What richness of experience is she talking about? I understand she was brought up by her mother, but from the age of 18 on she has been surrounded by elite institutions and elite people. Is her richness of experience the same as a Latina hotel maid’s? How does her richness of experience measure up to say, John McCain’s, or maybe the white male dyslexic fireman who never went to Princeton and who had his promotion thrown out after spending months and some of his hard earned money to overcome his disabilty and earn it?
Everyone has “richness of experience” of some kind or another, but it is dangerous to steroetype in this way. Everyone is different.
I certainly agree that the opposite risk exists: that a person could assume that they possess a depth of knowledge or insight into a situation that they don’t actually have. There is no substitute for hard work. I just don’t think that’s what she was doing — because she couched the statement in such conditional language; she wasn’t affirmatively stating that she was sure she was more likely to get it right, just that she “hoped she would.”
I actually think what she was saying was fairly balanced, and I think being cognizant about the potential for bias is a really important judicial trait. Pretending like you bring no bias to bear when you apply law to facts is one of the ways judges come up with inexplicably inconsistent decisions.
I would say that I think there are very few cases, or types of cases, in which knowledge of cultural traits should or could make much of a difference. A few, certainly, but not many, and most of those where it would are probably in family law circumstances, where majoritarian notions of parenting are often used against family structure and style that are different. It’s why Congress passed the Indian Child Welfare Act.
Sean: Everyone has “richness of experience” of some kind or another, but it is dangerous to steroetype in this way. Everyone is different.
Yes, and Sotomayor said that in her speech.
In fact, she concluded by making nearly the opposite point of what she has been accused of arguing:
It is, as I said above, simply a mistake to interpret that one sentence as a statement of Sotomayor’s judicial philosophy — even if it did say what some seem to think it says; even if it began not with “I would hope” but rather with “I am confident.” It was not her pithy answer to the question, “What makes you a good judge?” It is a single sentence plucked from a lengthy address about how she perceives her personal background as an influence on her exercise of judicial duties.
Besides, there’s no need to imagine what would happen if Justice Scalia said something that could be considered racist. There are plenty of examples of him doing just that, and his career is doing fine.
I agree with Eduardo that one needs not be among the smartest people (leave alone the smartest person, whatever that might mean) to be one of the nine. I agree with Barbara that pure intellect isn’t everything, and Epstein might have a narrow view of what intellect is supposed to be. Like intelligence, there isn’t one kind of intellect but several. Besides, people regarded as in possession of great intellect (e.g., Henry Kissinger) aren’t necessarily
A basic problem, however, is that Obama’s evocation of “empathy” before he nominated Sotomayor. Fairly or not, Sotomayor is going to be scrutinized in light of the president’s choice of word. How compatible is empathy to intellect? How would one be used in relation to the other when she decides a case? These are the kinds of questions that may come up in her confirmation hearing.
We’ll see how this debate on “empathy” will play out. I’d suspect, however, that many Democrats wish Obama hadn’t mentioned the word. Thus far, it has proven distracting. (Myself, an independent, certainly thinks it’s distracting.) In any event, I think that Sotomayor will be confirmed easily. But Obama’s next nominee may prove something else, and the president may have reason for regretting using the word in the first place.
Finally, Epstein has another opinion on the nominee in his Forbes column. Barbara mentions his take on Obama, and for the heck of it, here’s also the link to another take he wrote on Obama 2 weeks before Election Day.
http://www.forbes.com/2009/05/26/supreme-court-nomination-obama-opinions-columnists-sonia-sotomayor.html
http://www.forbes.com/2008/10/20/obama-chicago-election-oped-cx_re_1021epstein.html
FYI, a little debate on Sotomayor’s decision on the Ricci case & her “wise Latina woman” speech:
http://www.politico.com/arena/
Fred Barbash, Moderator:
The case of Ricci v. DeStefano, now before the Supreme Court, is an employment discrimination controversy involving New Haven firefighters that has become a point of contention in the discussion of the nomination of Judge Sotomayor because she sat on an appellate panel that dealt with it.
I asked two distinguished Arena contributors, Thomas Goldstein and Roger Pilon, to discuss the case, bringing their deep knowledge and different perspectives to bear. They generously agreed and the result is attached. We welcome comment.
Also today, please see Arena’s special Supreme Court nomination page for an excellent cross-post by Rick Hasen, of the Election Law Blog, entitled “Viewing Judge Sotamayor Through Her Election Law Decisions: Careful, Thoughtful, Mainstream Leaning Left”
Besides, there’s no need to imagine what would happen if Justice Scalia said something that could be considered racist. There are plenty of examples of him doing just that, and his career is doing fine.
Can you be more specific about these “plenty of examples” of racism?
Mollie, Sean, Mark Proska, Bob Schwartz, etc.: On “wise Latina woman” remark, check out various takes from The Arena today. Some are long & some are short. Here’s a short one:
Larry J. Sabato, Professor of Politics, University of Virginia:
“Wise Latina” speech: Sonia Sotomayor goofed. She said a stupid thing. Smart people occasionally say dumb things. We all have; I have a long list of my own mistakes. True enough, we’re not all nominated for the Supreme Court, and Judge Sotomayor would be wise not to tap dance around this. Don’t just ‘clarify’ the statement, take it back. Explain that she simply meant to say that we are all a product of our unique backgrounds and experiences, and that those backgrounds and experiences inform our decisions. But no one’s gender or ethnic background inherently leads to superior decisions. It would be refreshing to hear a Supreme Court nominee say, “I’m not perfect. I made a mistake here. Let me take this opportunity to correct it and learn from it.” This is nothing approaching a fatal error.
http://www.politico.com/arena/
Stuart, let’s be clear. I didn’t say there are plenty of examples of racism. I said there are plenty of examples of Scalia’s saying things that could be considered racist. (Whether they actually are or not is immaterial to the comparison Sean was making.) I’m not going to bother making a list, since in my opinion it sheds no light on the topic at hand. But if you’re curious, Google “Scalia + racist” for a sample.
So you didn’t have any specific examples in mind, then?
Telling me to use google isn’t that helpful, since a google search for those terms turns up mostly irrelevant webpages, along with a couple of axe-grinding sources that don’t seem terribly interested in being fair to Scalia. Maybe you could clarify whether you mean “could plausibly be considered racist,” or “could be considered racist, but only by people who had the same kneejerk partisan reaction to Scalia as some are now having towards Sotomayor.”
The latter. I did clarify that, actually — plausibility is not relevant, which is why specific examples/more disciplined searching isn’t important. The point is that, pace the “a white man could never get away with saying something so inflammatory…” complaint, Justice Scalia obviously does not feel the need to be extra-careful to avoid giving offense. (Perhaps he only let loose after he was appointed to the SCOTUS, but I doubt it.)
That’s more than enough about Scalia. And I think we’ve spent more than enough time debunking the Sotomayor-said-something-racist canard, too.
“It is not that anyone thinks that experiences of different types don’t matter, but a judge isn’t supposed to apply unique “insights” gained by experience in judging cases. He or she is supposed to interpret and apply the law to the facts before him or her.”
Hi, Sean, this seems to touch on the President’s philosophy of “empathy” in the 5% of hard cases. I have to admit I’m not sure what to make of it. I do see the advantage of Justice keeping the blindfold on. But doesn’t the notion of a preferential option for the poor demand that our judges exhibit a degree of empathy for those who are disadvantaged in some way? Or am I being too simplistic about that?
FWIW – in my own mildly wayward youth, I was once given a break by a judge, while a codefendant wasn’t. For whatever reason, the judge seemed to empathize with me and my situation. Whether that was a just decision, I can’t say, but I am grateful for the mercy.
“The statement [about a wise Latina's rich experiences] were it made by a white male would likely be the end of that white male’s carreer. ”
Probably, but I also see that the two situations aren’t perfectly symmetric. White males are the least discriminated-against demographic we’ve got. Really, I suppose I tend to agree with what she said.
Mollie
First, I never said what Sotomayor said was racist. I might call it racialist – that is placing greater importance on race or ethnicity than is reasonable. My point in comparing an analogous statement was to make that point. Importing this idea into judging is dangerous in a democracy.
All the additional context doesn’t change the underlying problem. If anything, it makes it worse. It is not the role of judges to “represent” anything.
In the purest sense, a judge is presented with facts, and applies the law. In reality, we know that there are different ways to interpret laws and different approaches that we loosely call judicial philosophy. So we already have a lot of uncertainty.
The problem with Sotomayor’s, and Pres Obama’s, philosophy is that on top of all of this there is a “personality” factor. The judge somehow infuses his or her “experience” and race, and nationality into the deicision-making process. So we have Latina judges, and Black judges, and White judges, and Gay judges, not just as descriptions but as substantive types of judges. This isn’t surprising since the idea has been floating around law schools since the 70′s, but don’t you see the danger in it? Judges aren’t supposed to represent groups, or infuse the interests or outlooks of groups into decisions. Judging just becomes another political activity.
Also, I am with Stuart. I know of absolutely no statement by Justice Scalia and you don’t seem to be able to produce one. I think that was a fair challenge to a frankly unfair accusation.
Sean, it is wrong to characterize this particular sentence as Sotomayor’s (and Obama’s) “philosophy.” Full stop. As for Scalia, you brought him up; I think your hypothetical is inapt for any number of reasons, and the fact that he’s a particularly poor choice for the “white men are held to a different standard of political correctness” argument is just one of those reasons. There’s nothing “unfair” about pointing out that Scalia has, in fact, been accused of saying racist and insensitive things many times; it’s a pretty standard part of his legend, as I understand it. And it has very little to do with Sotomayor’s nomination or the attempt to mischaracterize her speech.
But if you insist, here’s where I think the Scalia hypothetical may be illuminating: If I heard someone — a talk-radio host, a political figure, whatever — claim that Scalia, or someone like him, HAD said “White men are wiser than minorities, because of the richness of their experiences,” my first impulse would be skepticism that anyone so prominent would say something so baldly stupid. So I would look into the context, fully expecting to find — as I did in this case — that, in fact, what he had said had been completely misrepresented. So my question is, why would anyone be willing to believe something so ridiculous about Sotomayor? And why continue repeating it when the context is so easily examined?
Back to the notion of “philosophy.” As I say, it’s misguided to believe that Sotomayor’s personal approach to the law is “biography first” because she was willing to suggest that humans are not robots and impartiality is a standard of which everyone falls short. And I think you’re extrapolating far too much from that. I suppose there is a legitimate discussion to be had about how much a judge should strive to leave his or her personality out of the courtroom. But to be a legitimate discussion, it would have to acknowledge that Sotomayor is hardly saying anything radical. Especially now that we’ve been reminded of Justice Alito’s confirmation hearing, where he said, in part: “When a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position…. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” Is Alito “dangerous” too?