By Frank James

Even before she appears before the Senate Judiciary Committee for her confirmation hearings, Judge Sonia Sotomayor can expect Senate Republicans to grill her on the wise-Latina-versus-white-man line in her by now famous 2001 speech.

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In this Nov. 6, 1998 file photo, Peter White helps newly-inducted Judge Sonia Sotomayor put on her robe shortly after she took the oath of office as a judge on the U.S. Court of Appeals at the U.S. Courthouse in New York. AP Photo/Adam Nadel, file


If she's really the wise Latina she seems to think, she's probably wishing right about now that she had never uttered those words since they give her political opponents a very exploitable angle of attack they otherwise wouldn't have. And she will have the somewhat uncomfortable situation of explaining what she meant to the mostly white men in the Senate who will vote on her confirmation.

The line come from a speech Sotomayor gave during a symposium at the University of California School of Law at Berkeley. The conference's theme was: Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.

One point of Sotomayor's speech was that the life experiences of women and minorities in the law often informs their work leading to an ultimate outcome of greater overall justice.

She was taking on the views of a colleague, federal district court judge Miriam Goldman Cedarbaum who, among other things, was the judge who threw the book at Martha Stewart.

Sotomayor describes conversations she had with Cedarbaum in which her colleague had opined that judges should strive to scrupulously keep their gender and race or ethnicity from impacting their decisions.

To this, Sotomayor said:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.

That passage alone would give many conservative senators pause since some will interpret the passage as Sotomayor saying that it's all right for women and men of color to put a thumb on the scales of justice.

Sotomayor gave an example of how the presence of women judges indeed makes a difference in ways observed by legal scholars:

... I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

That seems straightforward enough, that if you get enough women or people of color on the bench, their life experiences will impact the evolution of the law.

But a few paragraphs later, she uttered one of her speech's most controversial lines. Here's the relevant passage:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Whoever first said "a wise old man and a wise old woman will reach the same conclusion in deciding cases" it's a good line. It intuitively feels right. Wisdom is wisdom, whoever it comes from.

But Sotomayor begged to differ, at least in this speech. Now she will no doubt be asked to explain why she thinks it's unlikely that a wise old male and wise old female judge couldn't reach the same constitutionally sound conclusion. Or a wise white judge and a wise black judge. Good luck with that one, Judge Sotomayor.

Her statement has prompted charges that she traffics in identity politics. How could it not? Stuart Taylor of the National Journal wrote a widely read criticism of her speech. An excerpt:

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" -- and had proceeded to speak of "inherent physiological or cultural differences."

I have been hoping that despite our deep divisions, President Obama would coax his party, and the country, to think of Americans more as united by allegiance to democratic ideals and the rule of law and less as competing ethnic and racial groups driven by grievances that are rooted more in our troubled history than in today's reality.

Because her "wise Latina" statement, along with so much else in the speech, is so controversial on its face, Sotomayor's best bet might be to try and neutralize the issue with that tried and true Senate confirmation strategy of saying that her views on the subject have "evolved."

categories: Supreme Court

12:48 - May 27, 2009