Reading Sotomayor’s “Wise Latina” Speech

June 1, 2009 at 12:10 pm (By Amba)

Thanks to Maxwell in the comments on the previous post for giving me the link to the whole speech.  I’m going to “liveblog” my reading of it.
[I apologize for whatever scrunching-up disease is ailing WordPress.  It’s not reading carriage returns as paragraph breaks, and I refuse to rewrite the post or to go into the HTML.  Have neglected everything else too long already.  Cross-posting a cleaner version at AmbivaBlog.]

First of all, it’s in the Berkeley La Raza Law Journal.  That alone speaks volumes.  Berkeley is Berkeley and “La Raza” is “the race.”
What identity politics did was to turn a negative special identity into a positive one — even the bad experiences of discrimination became a kind of ennobling crucifixion (á la Karl Marx’s thinking when he somehow assumed the oppressed classes were something other than human and, having experienced injustice, would inevitably be just).  Finding the positive in precisely what has been defined as negative can be a useful step towards full participation (as I found out with my “elevator,” feminism).  Minority conservatives found advantages in skipping that step (they were rewarded for volunteering to be poster children for the idea that you could skip that step, a step that can release unseemly anger).  Identity politicians found advantages and rewards in getting stuck in it and wallowing there.
(Sorry, blogger’s disease — you can’t read a sentence or even so much as a title without blathering a Talmud on it.)
Second:  the subtitle of the symposium in which Sotomayor’s speech was delivered is “Latino and Latina Presence in the Judiciary and the Struggle for Representation.”  As someone pointed out yesterday, the judiciary is not a representative body.  That’s the legislature.  The judiciary ideally represents something that is impartial and above all particular identities:  the law.  If any part of government should be colorblind, it’s the judiciary.  The way to be “represented” in the judiciary is to produce competitively excellent legal minds.
But presumably Sotomayor didn’t run the symposium, she just took part in it.
Someone also pointed out that her parents, who came to the U.S. during World War II, were not “immigrants” in the usual sense because they were already U.S. citizens!  I’ll break my usual fact checker’s rule and quote Wikipedia:  “In 1917, the Jones-Shafroth Act granted Puerto Ricans U.S. citizenship . . .  As a result of their new U.S. citizenship, many Puerto Ricans were drafted into World War I and all subsequent wars with U.S. participation.”
Then it turns out ethnicity is all about warm memories of special foods and music.  Right, that we can all appreciate.  That’s about where it belongs.
Tension between melting pot and salad bowl?  Exactly.  And why is that a problem?  What’s wrong with being a 100% American who likes pigs’ intestines? . . . Okay, in American society it’s also “struggle” that forges a minority ethnic identity.  Hate to say I told you so.
Tsk, she doesn’t know you’re not supposed to say “Afro-American” any more.
Spanish is so cumbersome, or should I say formal and flowery?  Have you ever noticed, in a bilingual sign, how much longer it takes in Spanish to say something like “No Smoking”?  The language requires her to say “Latino or Latina” every time.
Bean counting:  “Those numbers [on the judiciary] are grossly below our proportion of the population.”  Hello, not a representative branch of government.  Naturally it will take a come-from-behind group longer to populate the highest echelons of the professions to roughly its percentage of the general population.  The concern should be for pushing, not pulling — for improving education and aspiration at the lower levels, not engineering outcomes at the top.  But maybe she’ll go ahead and say this.
Not so far.  More bean counting.  “Sort of shocking, isn’t it?”  She sounds outcomes-focused, pro-affirmative action.
Now we’re getting to the crux of it.  Paraphrasing Judge Cedarbaum:
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 . . .
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.
Judge Sotomayor wonders “whether achieving that goal is possible in all or even in most cases,” and “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.
Sloppy expression; not at all clear whether she means the two sexes might have “basic differences in logic  and reasoning,” an argument that some brain studies can be used to support, or whether she goes further and extends that same speculation to “races,” which would be a real shocker. That way lies Leonard Jeffries, former head of Black Studies at New York’s City College:
Blacks are “sun people,” Jeffries explains, and whites are “ice people.” New York Newsday quoted Jeffries as telling his students last year, “Our thesis is that the sun people, the African family of warm communal hope, meets an antithesis, the vision of ice people, Europeans, colonizers, oppressors, the cold, rigid element in world history.” Jeffries believes melanin, the dark skin pigment, gives blacks intellectual and physical superiority over whites.
You wonder if there’s a subtle strain of that kind of thinking in Sotomayor’s key remark about the “wise Latina woman.”
She acknowledges Stephen Carter’s and Judith Resnik’s point that the experiences, opinions, and voices of any group of people are not monolithic.  “No one person, judge or nominee will speak in a female or people of color voice.”
Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” 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 . . . [emphasis added]
No one would argue with the second bolded sentence, but the first — realism or relativism?  Sotomayor’s examples raise more questions than can be answered without knowing the particulars of cases:
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.
Whoa, women judges have more “empathy” for criminal defendants?  Yikes.
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.
So what?  Isn’t that exactly as it should be?  The point is that even though the judges were all white males, they heard those advocates.  Call it empathy or call it justice.
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 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.
I am not so sure that I agree with that statement.  Minnow (or Minow) is the relativist who is helping Sotomayor to wriggle out of the law’s aspiration to universality.  Some Republican senator should read Minow and then challenge Sotomayor with particular quotes.
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.
There it is in context, and I still can’t tell whether she’s talking about all cases or particularly about cases that involve “that life.”  That question of mine remains unanswered, Maxwell.  Many of her following statements, though, seem uncontroversial:
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. . . .
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.  [OK, but tricky balance to be struck — you can’t aspire if you’re too quick to accept.] 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.
There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.
That’s intelligent — it suggests that she will strive to be aware of her sympathies and biases, not to deny them but to see beyond them.  In the next breath, though, she’s back to numbers and “representation,” with its implication that only women can justly judge women, and so on.  Her argument is that it takes too long to educate and broaden everyone’s imagination, and in the indefinite meantime, affirmative action/more proportional representation is the only way to assure justice for the historically oppressed:
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.
It’s much like the argument in literature that you only have the right and ability to write about people like yourself.  There go Madame Bovary, Anna Karenina . . .
The link between imagination and justice — now there’s an interesting subject.
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15 Comments

  1. Maxwell said,

    ohn Dickerson makes a good connection between Sotomayor’s assertion and a recent case heard by the court, which was also discussed on this blog.

  2. PatHMV said,

    In every divorce case, there’s a man and a woman both involved (except in Mass., Conn., Vt., Hawaii, and one or two others). A feminist of the type of Sotomayor seems to say that only women can effectively judge those cases involving a man and a woman.

    Based on watching friends go through divorces, my own “experience” tells me that sometimes the man is wrong, sometimes the woman is wrong, and sometimes they are BOTH wrong. I’ve seen women judges who had it in for men, but I’ve also seen women judges who had it in for women. The only reason I’d want a judge to be aware of their personal biases is to help them disregard those biases, certainly not to use those biases to confirm that their class reaches the “right” result in such cases.

    What all these claims by Sotomayor and her ilk have in common is that they assume the “little guy” (or girl) should always win. But in every lawsuit, there are two sides, and finding for one means finding that the other did something very bad. In criminal cases, the “sympathetic” vote is to find an excuse for the criminal’s wrong-doing. But in discrimination cases, the “sympathetic” vote is to assume (if not presume) that the defendant did do wrong.

    I was once at some conference, sitting through a talk on “diversity” in some form or other. I pointed out to the presenter that it really got tiring, as a white male, of being presumed to be a wrong-doing, discriminating SOB. She was mystified. She couldn’t understand why anybody would take offense at the entire content of the course (which was a presumption that there was and remains pernicious discrimination, actively pursued by most white people). She couldn’t even manage a claim that the stereotyping of white people in the course was a pedagogical technique designed to show the privileged how it feels to be on the other side of the discrimination.

  3. amba12 said,

    She doesn’t sound too bright.

  4. Melinda said,

    Have you ever noticed, in a bilingual sign, how much longer it takes in Spanish to say something like “No Smoking”?

    “The way of the subterranean train is dangerous.”

  5. amba12 said,

    Man, I used to translate and recite that to myself just exactly so! Or sometimes with “perilous” ’cause it sounds more medieval. It sounded like the motto or vow of a secret mystery cult.

  6. Icepick said,

    I was once at some conference, sitting through a talk on “diversity” in some form or other. I pointed out to the presenter that it really got tiring, as a white male, of being presumed to be a wrong-doing, discriminating SOB. She was mystified.

    Which reminds me of the time I and another man were sexually harrassed by the women giving the anti-sexual harrassment training on one of my former jobs, during said course. Yet another tale from corporate America that I should write about. Although the story I really need to write is the one where the Vietnamese shop keeper explained EXACTLY why we lost the Vietnam War.

  7. amba12 said,

    All ears.

  8. Randy said,

    Here are some other thoughts worth considering:

    Julian Sanchez.

    Professor Bainbridge

    Will Wilkinson

  9. Randy said,

    John McWhorter has an interesting comment on one aspect of the Sotomayor biography.

  10. jason said,

    Pat: Let us not forget that divorce cases have historically found in favor of the husband, not the wife–in the vast majority of cases. And that regardless of the circumstances. This is an unfortunate statistical truth.

    What I read from her remarks is that a “white man” can’t claim an inherent understanding for the Latino POV or the woman POV. In a broader sense, that a white man can’t always climb out of his privileged skin to see what life is like “on the other side of the tracks.” Sure, she could have stated it better, but we all play to our audiences (this is undeniable human behavior that everyone everywhere does on a regular basis, even if unconsciously).

    The judiciary is interpretation of the law. The very word ‘interpretation’ means a point of view. I think many are latching onto this as though she intends to interpret the law based on racial and gender lines. No human–EVER–can claim to have done something different. Objectivity is neither native nor natural to the human condition; therefore, all judges must accept that they will interpret the law based both on the letter of the law and on their own feelings. Believing otherwise is foolish.

  11. amba12 said,

    Well said, Jason. In fact, you said it a lot better than she did. (If she had said it that well, there wouldn’t be a foothold for a problem.) And of course playing to her audience was a large part of it (and how could you expect her not to?).

  12. PatHMV said,

    Jason, it depends on what you mean by ‘in favor of.” If you mean monetarily, I agree. If you mean regarding child custody, I disagree. There was a bias both toward letting men keep the money and women keep the children. Both biases often were unfair to the other party.

    What is so fundamentally wrong with Judge Sotomayor’s position (and I’ll let her slide on the “better” line, though I don’t think that was intended as the joke so many are now claiming) is that she doesn’t stop to acknowledge that she also is limited by her own biases. It’s only the “white man” who can’t “climb out of his privileged skin,” to use your words. Her speech did not say “we are all limited by our experiences and perceptions, we all will fall short of the goal of objectivity in interpreting and applying the law.” No, she said that her experiences would make her “better” (ok, maybe I won’t let her slide on that after all). Can you point to me in her speech any sentence which expresses an understanding that maybe the “privileged white man” might also have legitimate experiences and perceptions which she can’t understand fully?

    Annie, you have yourself discussed in the past the extreme feminists who are, in reality, misanthropists. They believe, not that gender differences are inherent, if unfortunate, and that we should all try to be more tolerant of others and step out of our own biases, but that women are better, generally.

    I will remind everybody, of course, that Justice Thomas got no credit or celebration from the left because of his impoverished background, no acclaim for bringing some new perspective to the Court, because he wasn’t willing to toe the leftist line on interpreting the Constitution in whatever way the modern-day “elite” class wants to.

    Despite her humble beginnings, Judge Sotomayor, like President Obama, has been part of the modern American “elite” pretty much since she started college. That “elite” wants to promote group identity and demands on viewing people as inseparable from their race and ethnic background, because that’s all they talk about. Judge Sotomayor’s remarks are in furtherance of that general world-view. They assume that all people fundamentally identify first and foremost with their ethnic or racial background, and that is the primary lens through which they view the world. Assuming that a poor Hispanic kid has different interests or different experiences than a poor white kid or a poor black kid or a poor Asian kid.

  13. amba said,

    extreme feminists who are, in reality, misanthropists.

    Methinks you mean “misandrists.” The two meanings of “man” are distinguished in Greek if not in English!

    They assume that all people fundamentally identify first and foremost with their ethnic or racial background, and that is the primary lens through which they view the world. Assuming that a poor Hispanic kid has different interests or different experiences than a poor white kid or a poor black kid or a poor Asian kid.

    The assumption behind your comment here is very interesting, and I think it’s correct: that experiences based on economic class are more “real” and powerful than those based on ethnicity. I often quote Marx saying “The conditions of existence determine consciousness” (implied: material conditions) as a slight overstatement of an observable truth (always qualified by saying Marx was a better diagnostician than prescriber).

    Little discussed but very interesting, I think, is the “path to power” of people from disadvantaged groups when they are “taken up” by the powerful for the latter’s own reasons. That happens both left and right: Clarence Thomas is one example on the right, any affirmative action baby you care to name on the left. Minorities can be quite successful as conservatives in that conservative minorities are still something of a dissenting novelty and therefor make good poster children for the ostensible colorblindness of the right. (Clarence Thomas came out of his upbringing with plenty of anger, but he directed it differently than the whitey-blamers. They would probably say he displaced it.)

    We’re not there yet where nobody notices ethnicity. We are a lot further along than we were, though. Ethnicity has become secondary to character. And one of the revealers of character is how one handles one’s ethnicity. I suppose exploiting it is at least understandable — people use whatever they’ve got, after all. Men use height, women use beauty . . . White guilt and affirmative action resulted in exploiting one’s ethnicity being one path to success. Them’s powerful reinforcement in the behavioral-psychology sense. It’s the side your bread is buttered on.

    Another sly question is whether conservatives have their own subtle form of affirmative action, or whether you can only qualify for the poster-child role by being competitively excellent to begin with. People argue about Justice Thomas: he is underrated/he is overrated.

    My hero in this regard is Condi Rice — a Russian-speaking Soviet expert, of all things, in the ’80s. She behaved as if anything was possible and race didn’t even exist, and her will made it true for her. Only long afterward did she claim for herself the luxury of acknowledging that it does exist and revealing her feelings of pride in how far AAs have come.

  14. PatHMV said,

    I KNEW that wasn’t quite the right word. Thanks for the correction. Boy, you can take the girl out of the copy-editing, but you can’t take the copy-editing out of the girl… ;-)

  15. amba said,

    I know, I can’t stop . . . ask my sister, she wrote a little article about a fishing tournament for a little local paper in my parents’ Florida town, and I fact checked it . . . I’m like Charlie Chaplin with the two wrenches in “Modern Times” . . .

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