Home -> Law Blog Directory -> Legal Commentary Blogs -> Discriminations

Legal Commentary

: Discriminations

Is Sonia Sotomayor A ?Wise Latina??

As everyone knows by now, a great deal of attention has been paid to Sonia Sotomayor?s belief (despite the fact that she call?s it a ?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.? (Some of that attention has been here, and here.)

Now the excuses, interpretations, deconstructions, etc. have started in earnest. President Obama says she?s guilty of merely ?a poor choice of words.? Now Sotomayor herself is echoing the White House?s construal of her remarks, telling Sen. Feinstein that her ?wise Latina? remarks were ?a poor choice of words.?

In another influential aw shucks attempted whitewash (or would that be brownwash?),

Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of ScotusBlog, a widely read blog on the Supreme Court, read the speech and concluded it amounted to little more than Sotomayor acknowledging that judges, like anyone, are products of where and how they grew up.

?Having that context can be valuable for a judge,? Goldstein said. ?There are some cases, like cases of discrimination, where if you have been in someone?s shoes, you can better understand it.?

Goldstein?s first point would be more persuasive if all Sotomayor had said is that a judge?s opinions are informed, and even influenced, by her experience. But, unfortunately for Goldstein?s defense, that?s not the controversial core of what she said. She said ?a wise Latina ... would more often than not reach a better conclusion than a white male.? [Emphasis added] That assertion is considerably different from Goldstein?s and presidential press secretary Robert Gibbs?s translation, as Gibbs put it, ?that she was simply making the point that personal experience are relevant for the process of the judging.?

And there?s also a problem with his second point. Although many of Sotomayor?s advocates may not agree, all ?cases of discrimination? are not actually ?cases of discrimination.? That is, often courts find claims of discrimination unfounded. In those cases a judge placing herself in the shoes of the plaintiff, and thus letting her own views of discrimination color her empathy, might actually lead to a miscarriage of justice. Moreover, all those who claim discrimination do not wear shoes that would fit ?a wise Latina? ? one thinks of Mr. Ricci and his fellow plaintiffs in the New Haven fire department. Finally, if ?cases of discrimination? can be decided better by a judge who has empathy for the plaintiff, it follows that some ?cases of discrimination? can also be decided better by judges who can put themselves in the shoes of falsely accused defendants. Rather than selecting judges on the basis of what shoes fit, maybe it would be better to select those who are best able to step out of their own shoes while not stepping into someone else?s.

In any event, there are at least a couple of problems with the ?poor word choice? defense. First, what words should she have used to make her point that female Latina-ness ? ?[w]hether born from experience or inherent physiological or cultural differences,? as she put it in her now famous speech ? equips ?a wise Latina? to make better decisions than white males?

Second, and fatal to this defense, if Sotomayor?s ?word choice? was ?poor,? it was a poor choice she has made over and over and over again throughout her career, as revealed by the questionnaire she just returned to the Senate. A CQ Politics reported last night,

Supreme Court nominee Sonia Sotomayor delivered multiple speeches between 1994 and 2003 in which she suggested ?a wise Latina woman? or ?wise woman? judge might ?reach a better conclusion? than a male judge....

Her repeated use of the phrases ?wise Latina woman? and ?wise woman? would appear to undermine the Obama administration?s assertions that the statement was simply a poor choice of words.

But consider: maybe everyone?s been barking up the wrong tree, arguing about racial and ethnic essentialism in the abstract. Why argue about whether ?experience or inherent physiological or cultural differences? would lead ?a wise Latina? to make ?better decisions? when we have an actual judge and nominee who is presented to us, and who presents herself, as that very ?wise Latina??

Why not simply ask Judge Sotomayor to point to her own opinions from her many years on the bench that are better because of her Latina physiological or cultural inheritance? Far from regarding such a question as out of order, she has virtually invited it. In The Speech (and subsequent law review article that printed it), after all, she herself said:

I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Fine. So Sotomayor should show us where those differences have actually led her to make better decisions than a white male could make.

There is, of course, another possibility. Perhaps when Sotomayor was discussing ?a wise Latina,? she did not have herself in mind. Perhaps she?s merely a Latina, and thus her claims about the influence of experience, physiology, or culture do not apply to herself.

Full post as published by Discriminations on June 05, 2009 (boomark / email).