sotomayor1.thumbnail.jpgWith the nomination on May 26 of Judge Sonia Sotomayor to the Supreme Court, conservatives stepped up their attacks on her that began with Jeffrey Rosen’s smear job that appeared when she was mentioned as a top candidate.

Many of the attacks on Tuesday centered on a speech Sotomayor delivered in Berkeley in 2001 that was published in 2002 in the Berkeley La Raza Law Journal. The New York Times published the full speech on May 14. The painfully stupid and hopelessly evil Stuart Taylor was an early adopter of the misreading of this speech, publishing a screed about it on May 23.

The isolated sentence Stuart, and later, such luminaries as Fox News, lamented from Sotomayor’s speech was this:

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.

Granted, Taylor does lip service to putting the sentence into context and even dances around the message Sotomayor is seeking in the speech:

To some extent, Sotomayor’s point was an unexceptionable description of the fact that no matter how judges try to be impartial, their decisions are shaped in part by their personal backgrounds and values, especially when the law is unclear. As she detailed, for example, some studies suggest that female judges tend to have different voting patterns than males on issues including sex discrimination.

Taylor conveniently ignores the part of Sotomayor’s speech where she quotes Cedarbaum on the historical impact decisions based on presumed differences:

Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then "as not capable of reasoning or thinking logically" but instead of "acting intuitively." I am quoting adjectives that were bandied around famously during the suffragettes’ movement.

The real point which I think Sotomayor is addressing in the speech is the natural tension in our national self-image:

America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud. That tension between "the melting pot and the salad bowl" — a recently popular metaphor used to described New York’s diversity – is being hotly debated today in national discussions about affirmative action. Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with its differences.

Sotomayor goes on to point out that while landmark anti-discrimination cases were decided by Supreme Courts composed of white males, the cases were argued by attorneys who were persons of color or females. Further, she points out that such court luminaries as Holmes or Cardozo voted to uphold discrimination based on race or sex.

Sotomayor concludes with this acknowledgment of how her experiences affect her decision-making:

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. 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.

Importantly, that acknowledgment comes with a promise:

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.

Taylor’s response to this nuanced, self-aware description of the process of making decisions in a society that is diverse? He deliberately mis-states her purpose in this process:

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.

And, for good measure, Taylor adds this scary sentence in its own block in the column:

Do we want a new justice who comes close to stereotyping white males as (on average) inferior beings?

Sorry, Stuart, you missed the boat entirely, again. Your fear of Sotomayor stereotyping you (and me, as another old white guy) as inferior is simply unfounded. She is engaging in a healthy analysis of the effects of culture and personal experience on the factors which will stand out to a judge in making a decision. She is celebrating the fact that as the judicial system becomes more diverse, its decision-making process will include larger segments of our society.

Gosh, in this case, I wonder just which side of the argument is "not capable of reasoning or thinking logically"? I’ll say it very slowly for you, Stuart. Sotomayor is not saying that white males are inferior. She is saying that white males are not superior. Your column is a classic case of projection. You accuse Sotomayor of the very identity-based political games in which you are engaging, while she is taking great pains to avoid them.

With the nomination on May 26 of Judge Sonia Sotomayor to the Supreme Court, conservatives stepped up their attacks on her that began with Jeffrey Rosen’s smear job that appeared when she was mentioned as a top candidate.

Many of the attacks on Tuesday centered on a speech Sotomayor delivered in Berkeley in 2001 that was published in 2002 in the Berkeley La Raza Law Journal. The New York Times published the full speech on May 14. The painfully stupid and hopelessly evil Stuart Taylor was an early adopter of the misreading of this speech, publishing a screed about it on May 23.

The isolated sentence Stuart, and later, such luminaries as Fox News, lamented from Sotomayor’s speech was this:

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.

Granted, Taylor does lip service to putting the sentence into context and even dances around the message Sotomayor is seeking in the speech:

To some extent, Sotomayor’s point was an unexceptionable description of the fact that no matter how judges try to be impartial, their decisions are shaped in part by their personal backgrounds and values, especially when the law is unclear. As she detailed, for example, some studies suggest that female judges tend to have different voting patterns than males on issues including sex discrimination.

Taylor conveniently ignores the part of Sotomayor’s speech where she quotes Cedarbaum on the historical impact decisions based on presumed differences:

Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then "as not capable of reasoning or thinking logically" but instead of "acting intuitively." I am quoting adjectives that were bandied around famously during the suffragettes’ movement.

(more…)

Oxdown Diaries

Oxdown Diaries