History Happened
As we are all too aware, as soon as — and perhaps even before — President Barack Obama announced his nominee for the Supreme Court, some mischief-maker had the brilliant idea to isolate and circulate a single, easily misconstrued sentence from a speech Judge Sonia Sotomayor delivered in 2001. Immediately after that, people like Newt Gingrich took the bait and made themselves look ridiculous by calling Sonia Sotomayor a racist. More careful representatives for the opposition eschewed such inflammatory excesses, saying instead that they were troubled by what such a statement revealed about Sotomayor’s “philosophy.” Gingrich is doing something similar now, walking back his original insult ever-so-slightly (and disingenuously) and claiming, instead, that he wants to focus on his serious concerns about Sotomayor’s fitness for the bench.
The word “racist” should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable (a fact which both President Obama and his Press Secretary, Robert Gibbs, have since admitted).
So it is to her words — the ones quoted above and others — to which we should turn, for they show that the issue here is not racial identity politics. Sotomayor’s words reveal a betrayal of a fundamental principle of the American system — that everyone is equal before the law.
The problem with this approach, of course, is that — as Eduardo Penalver has already argued — it’s nearly as absurd to infer a comprehensive, and controversial, judicial philosophy from the famous quoted-out-of-context sentence about “a wise Latina woman” as it is to infer racist intent.
Part of the reason this is true is that, in saying “…I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” Sotomayor was not offering her response to the question, “What is your judicial philosophy?” She was exploring the ramifications of her own belief that personal experiences do affect individuals’ thoughts and decisions. She says as much right there in the transcript: “The focus of my speech tonight… [is] to discuss with you what it all will mean to have more women and people of color on the bench.” She was ruminating on that topic not because she denies that “everyone is equal before the law,” and not because she is given to obsessing about her minority credentials whenever she has the chance, but because she was delivering the keynote address at a symposium entitled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.” It’s no surprise she found herself talking about her background in that context, and no rational person should interpret it to mean that — as Roll Call reported the concerns of Sen. Lindsey Graham — “she may not treat white males fairly.”
I know we’ve been over this before, and at this point rational people are probably not confused. But I bring it up because there’s an article at Slate by Monica Youn that I think provides some useful context, if (like me) you’re still thinking about this kerfuffle: “The Invitation You Can’t Refuse: Why Sonia Sotomayor was talking about race in the first place.”
Recent years have seen a depressing pattern in which notable “ethnic” political figures–from President Barack Obama and first lady Michelle Obama on down–end up having to extricate themselves from the tangles of racial politics, defending themselves from charges of “reverse racism,” “identity politics,” or the like. This may have much to do with the fact that, unlike their “nonethnic” counterparts, such “minority role models” are regularly asked to put on the public record — at lunches, award ceremonies, community events — lengthy statements of their views on America’s most explosive topic: race.
Imagine Chief Justice John Roberts being invited by members of his own cultural network to deliver remarks for the Honorable William H. Rehnquist Law & Cultural Diversity Memorial Lecture on what special qualities white men bring to the bench: “What makes your approach, as a white male, different from that of your black judicial colleagues?” “Does being a white man give you special insight into the perspective of white male defendants in discrimination cases?” “Has the presence of white men on the bench made any difference in American law?” Odds are he wouldn’t last two minutes before treading on someone’s sensibilities. But this political high-wire act is expected from minority figures as a matter of course.
Of course, the risks of that “high-wire act” aren’t precisely the same for minorities as they would be for white males… And it’s also true, I think, that non-minorities generally face greater pressure to avoid identity-politics controversies in situations where they haven’t been invited to address those issues directly. But that goes back to the main point here, which is that, when we talk about power, government, or the law, we are dealing with a situation where there are minority groups — many of them, sometimes overlapping, with long histories — and pretending that’s not the case, even for noble reasons, isn’t especially helpful. As Julian Sanchez put it:
I find the “what if a white man said that?” move incredibly grating about 99 percent of the time it’s used, because it’s almost always a way of blotting out all the reasons that it would, in fact, be different. In the instance, it would be weird for a white man to say it because it’s probably not true that the experience of growing up as a white male in the United States specifically enhances one’s understanding of what it means to be a disfavored minority. In other words, it just wouldn’t be true or reasonable in this case—though it might be for a white male who grew up as a religious or ethnic minority somewhere else in the world. So yes, sometimes formally grammatically equivalent statements will have different connotations depending on whether it’s a white person speaking about whites or a Latino speaking about Latinos, because history happened.
Kathleen Parker was pithier:
Could a white man get away with saying something comparable about a Latina? Of course not. After Latinas have run the world for 2,000 years, they won’t be able to say it ever again either.
I posted this last week & it’s worth posting again.
http://www.scotusblog.com/wp/judge-sotomayor-and-race-results-from-the-full-data-set/
I’ve now completed the study of every one of Judge Sotomayor’s race-related cases that I mention in the post below. I’ll write more in the morning about particular cases, but here is what the data shows in sum. Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals…
…
In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.
Now, here’s a criticism of Sotomayor that seems more interesting, at least to me.
http://www.motherjones.com/politics/2009/06/sonia-sotomayors-prose-problem
The New York Times’ Adam Liptak charitably described her opinions as models of judicial craftsmanship that are “not always a pleasure to read.”
Liptak’s analysis is something of an understatement. Sotomayor’s opinions read like she’s still following a formula she learned in college and show little of the smart narratives employed by the federal judiciary’s brightest lights. Sotomayor’s impenetrable legal opus stands in striking contrast to much of the work produced by the court she aspires to…
That is more interesting, Historyman, thanks. It strikes me as a bit too coy, though, when it comes to drawing conclusions. Is Sotomayor particularly bad at writing, relative to most judges, or is she just no better than most people who went to law school (no greenhouse for good writing, as Mencimer later admits)? And how much of a “problem” is it, really, if her opinions are more workmanlike than Scalia’s? Isn’t Scalia’s style notable precisely because it’s rare?
Mencimer seems to hedge in exactly the places I want her to be more precise. Does Sotomayor’s work stand in contrast to most of the work produced by the SC, or just the most memorable opinions? And if only “the best” opinions are “words for the generations,” how much value should we be placing on how likely a given candidate is to turn out enduring quotations? For that matter, should we be looking for a candidate who’s likely to be “influential” in ways that extend beyond their vote? That sounds kind of activist to me…
Regardless, I welcome any attempt to evaluate Sotomayor’s fitness as a candidate, and likely future performance, based on her actual judicial work!
Mollie: You said,
…some mischief-maker had the brilliant idea to isolate and circulate a single, easily misconstrued sentence from a speech Judge Sonia Sotomayor delivered in 2001.
unfortunately, there are fresh reports out there this morning (I leave it to you to search them out) that the wise Latina remark was not an isolated case, but rather part of a pattern indicating a possibly distorted mentality when it comes to race and gender.
Mollie: I agree that evaluating her writing skills is only one part of overall evaluation – and perhaps a small part at that.
On Bob Schwartz’s point, no doubt we’ll here a lot more about her comments on race/gender, starting with the latest.
http://www.latimes.com/news/nationworld/nation/la-na-sotomayor-questionaire5-2009jun05,0,3270055.story
Re: the reference to a single line from a speech in 2001, I’m still fascinated by Sotomayor’s suggestion that ethnicity might be a matter of “inherent physiological . . . differences,” or that there might be “basic differences in logic and reasoning” at work. (She copied and pasted these phrases from a 1994 rendition of the same speech).
No one here seems to have a theory that might explain these phrases (I’ve asked twice now, with no response), but they are intriguing nonetheless, no?
From the web page supplied by Historyman is this nugget:
In a speech at Princeton in 1996, she said: “I began a lifelong commitment to identifying myself as a Latina” while at Princeton, “taking pride in being Hispanic, and in recognizing my obligation to help my community reach its fullest potential in this society.”
Is it OK then for me to make a lifelong commitment to “identifying myself as a white male”, and to “take pride in being white and in recognizing my obligation to help my [white] community reach its fullest potential in this society.?” Or is all that a one way street?
Stuart, do you contest the idea that there are inherent physiological differences between, for example, men and women? That seems pretty uncontroversial to me. Which I’d guess is why why no one’s bothering to respond.
Bob, if you’re really looking for evidence of a “distorted mentality,” you are going to have to do better than that.
Historyman — my favorite part of that L.A. Times article is the “deeply confused image” section they quote from something she reportedly said at Yale Law in 2006. They don’t seem to have noticed the same words appear in the 2001 Berkeley speech (which is itself a reworking of an earlier address, as Stuart notes). I find that amusing, since I’m positive the careful reporters at the LAT read the Berkeley speech in its entirety before they drew conclusions about what it “reveals”…
Well, she indicated that “national origin” — not just gender — might involve inherent physiological differences. Even as to gender, it isn’t clear how much inherent physiological differences would be all that relevant to the overwhelming majority of what a federal judge does.
And too, there’s the “basic differences in logic and reasoning” line. In the earlier version of the speech, she credits this to Carol Gilligan. So is Sotomayor a fan of difference theory? It might be intriguing to explore whether she does indeed think that logic itself differs depending on the sex of the speaker.
Stuart Buck –
There are in fact many different sorts of logic, e.g., categorical, propositional, modal, many-valued logic. But I’ve never heard of men or women favoring one sort over another. Maybe the Judge is giving the word “logic” a somewhat different meaning. But what? I might agree that there are sometimes differences is styes of rhetoric, male or female, and you learn about rhetoric in freshman logic. But is that what she means? Hmmm.
In a society where “white” is the accepted standard identification, why shouldn’t she spend her life identifying herself as what she is, which is equal to but different form that assumed standard?
Lots of groups do exactly that. Us gay folk have learned that they only way we will get what we want is to do that.
More power to Sotomayor.