Tied to the mast
…but orange now and black

Sotomayor’s “Comment”

The NYT has posted a full transcript of the 2001 lecture in which Sotomayor made her supposedly racist comment. Unsurprisingly, it shows a great deal more nuance on the issue than one might think based on its decontextualized treatment in the debate heretofore.

By that I don’t only mean on the right. Media Matters claims her comment was specifically with reference to “race and sex discrimination cases.” That’s not how it read to me, and seems to be an example of the left’s reflex when confronted with opposition in issues of substance, to retreat to safer ground. The lecture was about the value of diversity on the court. Her point of view, I think, is best expressed in these two passages: apg_sotomayor_090501_main

I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor — I did graduate from there and I am not really biased except that they seem to be doing a lot of writing in that area – Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be

And…

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

This is not an uncontroversial position, but it seems intellectually dishonest to deny its merits as a reasonable position for a thoughtful person to take. That affirmative action is in all cases wrong is far from a settled conclusion.

She did say in a parenthetical point:

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.

…and the wording leaves the last sentence subject to the interpretation imposed on it by the Megyn Kellys of the world, but that interpretation is not the spirit of the speech, and it doesn’t read like any kind of Freudian slip. Treating it as if it was is just a convenient straw man.

As a final note, it may not be possible to get past the identity politics phase of this debate on Sotomayor, and certainly not if the opposing arguments are not taken seriously and addressed.  Of course not everyone will ever be brought on side, but those who want to be reasonable about it need to have the opportunity to be convinced.

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One Response to “Sotomayor’s “Comment””

  1. […] Oh the horror! Publius picked up on Whelan’s sloppy wording, wording that was incongruent with the claimed spirit of Whelan’s post, in order to launch an attack? That’s nothing like the conservative attacks, fully supported by Whelan, on Sotomayor for using, in a sidepoint paragraph in a 4,000 word speech, the phrase “more often than not” rather than something like “as often” to characterize the how often someone with her life experience would come to a better verdict than someone with the life experience of a white male (I wrote about this last week here). […]


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