Debunking the Latina-Supremacist Charge
I have a guest post up over at one of Slate’s companion blogs, explaining why Sotomayor’s comment about “wise Latinas” was not only not racist, but also almost undeniably true. Here’s a taste:
[C]onsidered in the context the rest of her speech, it is clear that Sotomayor merely meant that appointing “a wise Latina woman with the richness of her experiences” to the bench would (on average) do more to improve judicial decision-making than appointing a(nother) comparably wise white male judge. Understood in this way, the comment is benign and, more importantly, almost certainly true.
Crucial to understanding Judge Sotomayor’s argument is the way in which decisions are made in appellate courts. Both the court on which she sits and the court to which she aspires decide cases collectively. This context is crucial because a large body of social science evidence confirms Judge Sotomayor’s contention that ensuring that a group includes people with a variety of viewpoints and life experiences increases the reliability of the group’s decision-making process. Diverse groups are more likely to reach the right conclusion because the different members of the group complement each other’s blind-spots and reduce the likelihood that commonly held, but incorrect, assumptions will carry the day.
Eduardo
I don’t think many people actually are accusing her of supremacist thinking. The objection is, appropriately, that she places far more importance on her background and ethnicity than is appropriate for a judge. She was responding to comments made by Justice O’Connor that indicated that such differences weren’t important.
Even if she menat what you are saying – which I don’t get from the actual words – is it even true? She, along with half of the judges in her circuit went to Yale Law School. Is there really all that much diversity of thought and approach just because of the color of their skin or sex? Moreover, is the kind of collective decision-making advantage even applicable in a judicial setting? Shoukld parties be thinking the Black judge sees the law this way, the Latina judge sees it this way, the male sees the law this way, the female another?
If by not “many people,” you want to rule out Rush Limbaugh, Gingrich, Tancredo, and a number of others, then you’re right. But I’m not sure why the don’t count.
As for the charge that she puts too much emphasis on her ethnicity, I assume you were equally critical of Alito when he said the following at his confirmation hearing:
“I tried to in my opening statement, I tried to provide a little picture of
who I am as a human being and how my background and my experiences have
shaped me and brought me to this point. . And that’s why I went into that
in my opening statement. Because 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. [...]
And that goes down the line. 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.”
As to whether the cognitive benefits of diversity apply in the judicial setting, the Vermuele article I cite in the post argues that it does. In fact, his article is exactly an attempt to apply this literature to the Supreme Court setting.
Shoukld parties be thinking the Black judge sees the law this way, the Latina judge sees it this way, the male sees the law this way, the female another?
It doesn’t seem to me that people expect there to be a Black view of the law, a Latina view of the law, an Italian-American view of the law, a male view of the law, a female view of the law, and so on. That doesn’t mean that it is not desirable to have some kind of diversity in the House, the Senate, and the Supreme Court, and other areas of government.
I think that maintaining “diversity” on the court used to be a matter of making sure the various regions of the country were represented. I don’t think anyone objected to that on the grounds that there was just one law — not southern law, or northern law, or east coast law, or west coast law, or middle-western law.
Oh, it was in an article, then it must be right.
As for the Alito comment – don’t recall it. I don’t even object to the idea that a person’s experiences influnce their thinking – that’s simply true. I do object to the idea that to have good judicial decisions you need some sort of racial, ethnic, or sex balance.
Frankly, the reason for a lot of this diversity makes better decisions talk is that no one wants to admit that sometimes the reason for appointing a judge is to satisfy political expediency. Don’t get me wrong, Judge Sotomayor is qualified, I don’t dispute that. But the idea that she is better qualified because of her sex and ethnicity is nonsense. People don’t want to admit that the appointment has political overtones, so they make race a substantive qualification. It doesn’t offend me that Obama picked her in part because of her ethnicity, any more than it would bather me that he picked an otherwise qualified candidate because she’s from California. He’s the one who gets to make that call.
Well, Sean, if I can’t point to an article by a conservative Harvard law professor in the Stanford Law Review to support my argument, I’m not sure what I can point to. You seem to have made up your mind, and I doubt any evidence would persuade you.
I largely agree with Eduardo’s comment. That said, I’m not sure that he’s defending the full extent of what Sotomayor actually said. For example, she didn’t just make the usual statement about the value of diversity. Instead, she went further (in my opinion) by:
1) suggesting that “national origin” might matter to judging as a result of “inherent physiological . . . differences” — a possibility that she “abhor[s] less or discount less than my colleague”;
2) suggesting that diversity might be not just a matter of “cultural experiences” but perhaps “basic differences in logic and reasoning” (what might those be?).
“…if I can’t point to an article by a conservative Harvard law professor in the Stanford Law Review to support my argument…”
Are you referring to Adrian Vermeule? I would not agree that he is a conservative – certainly not in the sense you are trying to imply. I am also certain he afirmatively rejects that label himself and has said so in interviews.
I’m not sure what sense of conservative you think I’m trying to imply. In any event, Wendy Long disagrees with you:
http://bench.nationalreview.com/post/?q=OTExYjdiYTFjYjM3ZGZhYjJmODFhODRiMWVlYTU0YzM=
“Don’t get me wrong, Judge Sotomayor is qualified, I don’t dispute that. But the idea that she is better qualified because of her sex and ethnicity is nonsense.”
Mr. Hannaway ==
If there were already some Latinas on the SC, then indeed Judge Sotomayor would add nothing by way of special experience, special expertise, to the /court. I agree with you totally that all things being equal a Latina justice would not add more than a Wasp male. But she could add something special, just as a male wasp would also bring *his* special experiences. his special expertise. (Indeed I’m concerned that the Court is currently short of wasps. (Is “wasp” a politically incorrect word? I often think it should be.)
The issue is a matter of adding someone who can *understand certain facts better* than a wasp or whatever because she has lived similar facts herself. The same would be true of a wasp judge — he too would bring special understandings which she could not bring due to his *different* lived experiences.
Who knows more about hurricanes — someone who has lived through one or someone who has only one on tv? And which of those two persons understand the factual *consequencers* of hurricanes better?
So long as facts are relevant to a just decisions (and who but a mad person would doubt this), then the plain *lack of experience* of individual judges needs to be augmented by the insights of judges with other kinds of experience. Both are important. Why is it, do you think, that there are nine justices on the Court and not just one — a legal king, so to speak?
Thanks, Eduardo. Your explanation is very clear; I hope it does some good.
Sean, it seems to me you keep changing the subject.
Frankly, the reason for a lot of this diversity makes better decisions talk is that no one wants to admit that sometimes the reason for appointing a judge is to satisfy political expediency.
I’ll be glad to “admit” that, though I don’t see how “political expediency” and the interests of justice are mutually exclusive; sometimes, though not often enough, they do overlap. But more important: The topic of diversity didn’t come up because someone was arguing that Sotomayor is a better candidate than someone else by virtue of her minority status. It came up because, after she was nominated, people like the ones Eduardo named above started tossing around the ridiculous charge that Sotomayor was a “reverse racist.” No honest conversation about the importance or unimportance of diversity can grow from that seed.
“…Wendy Long disagrees with you…”
Indeed. I think she definitely needs to re-read “Judging Under Uncertainty”.
The idea that white males don’t bring predispositions and biases based on their life experiences, cultural backgrounds, family situations, place of education, etc. would be hilarious if it wasn’t so ludicrous.
Most white males never give second thought to the leg up just being white and male has given them! There was an assumptions that they would be right for a job, a posting, membership in a social organization, leadership in a church …. and, of course, those who didn’t fit that mold had to walk the extra mile and go out of their way to prove themselves worthy of joining the club.
If any of you think Clarence Thomas and Ruth Bader Ginsburg don’t bring a whole range of experiences to bear and how they look at cases, make their decisiona and frame their opinions they you need to stop deludinb yourselves.
* Yesterday’s opinion:
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… Judge Sotomayor would be wise not to tap dance around this. Don’t just ‘clarify’ the statement, take it back….
http://www.politico.com/arena/archive/wiselatinawoman.html#9DC4C5D3-055F-447C-AB1A-C5D59D663E7F
Today’s development:
White House Press Secretary Robert Gibbs in his daily press briefing on Friday said that Sotomayor would now consider her choice of words for the 2001 speech “poor.”
“I think if she had the speech to do all over again, I think she’d change that word,” Gibbs said, referring specifically to Sotomayor’s remark that a Latina should reach a “better” conclusion than a white male.
Gibbs said he had not spoken to Sotomayor specifically about those remarks and was basing his comments on discussions he has had with other people.
http://www.cbsnews.com/blogs/2009/05/29/politics/politicalhotsheet/entry5049690.shtml
Having asked that question in two different threads, I’m wondering why no one is willing to venture an answer?
“Raised that point,” I should say, not “asked that question.”