Jack & Jill Politics

The nerve of these people! It’s fascinating for me to watch people whose own racism is well-documented call a non-racist racist. Sonia Sotomayor’s record is so tight that the only way for conservatives to drum up a fuss is to take her words out of context.

Conservatives are out to paint Sotomayor as a radical leftist activist. In the past, she’s been uncontroversial enough to enjoy the vigorous support of Republican Senator Al D’Amato and of course, President George Bush I. But that tack was  clearly not getting enough attention since it’s patently false.  So now people like Ann “KKKrazy” Coulter, Sean Hannity, Rush “Racist Drug Addict” Limbaugh, etc ad nauseam have resorted to calling Sotomayor “racist” or “reverse racist” with the flimsiest fluff of non-evidence. Sadly, the mainstream media like Fox, ABC and CNN are lapping it up.

At the center of the controversy (for today) is the quote attributed to Sotomayor:

“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.”

Boo! Sounds scary and even racist (GASP!), don’t it? Except it’s taken completely out of context. The quote comes from a speech at UC Berkeley where Sotomayor was specifically addressing the role of judicial diversity in determining race and sex discrimination cases. But oh, the role of diversity & experience on the court is only important to Republicans when Clarence Thomas is under attack:

As Media Matters for America has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him” and argued that Thomas’ work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

Here’s what the full text of what she actually said. And let me add that — if this is the best they can do — please, her confirmation is gonna be a breeze. From Sotomayor’s speech delivered at the University of California, Berkeley, School of Law and published in 2002 in the Berkeley La Raza Law Journal (Courtesy of Media Matters) :

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

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.