“Wise Woman/Wise Latina” . . .

June 5, 2009 at 2:57 am (By Amba)

. . . is a trope it turns out Sonia Sotomayor likes so much she’s used it repeatedly, virtually verbatim.  In fact, it could be called her signature line in public speeches.

I’m going to tell you a) why I don’t like it, and b) why I nonetheless think it may be irrelevant.

My dislike is directed particularly at this kind of feminism.  The coupled ethnic chauvinism takes the same payback form (“the last shall be first,” the long-thought-inferior are really superior), but is necessarily less essentialist; only crazies like this guy think brains differ predictably by “race,” whatever that is, although such thinking may be making a creeping, and creepy, comeback.  (That’s really not a trend minorities want to encourage, by the way, because it’s not going to break their way.  I happen to believe that the evidence is biased, but it’s biased towards Euro-Americans.)

And, it’s not primarily men I want to defend from “this kind of feminism,” although I get that men are both demonized and denigrated by it — but I find I believe (perhaps wrongly) that it’s too stupid to stick, to men.  No, I think it’s bad for women.  The assumption that women are nicer, more caring, more compassionate than men strikes me as both dangerously wrong and nauseatingly cloying.  Women are human, and can be mean, nasty, cruel, criminal, physically brutal, and psychologically maiming.  In fact they’ve — we’ve — refined that last to a torturer’s art because the cruder physical means of domination are less available to us.  Women can also be emotional hacks and manipulators, who’ve worn such overtrodden paths across the terrain of “feelings,” our specialty, that they’ve become muddy ruts where nothing grows, only to be prettied up with toxic therapeutic AstroTurf.  Men’s emotions, when not successfully suppressed, can be much more touching, raw, and real.

Ask anyone who’s had a less than cuddly mother how warm and compassionate and empathetic and nurturing women are.  I’ll even go so far as to say that the human mean streak in women, used properly, is what enables us to discipline our children, defend ourselves and them, and accomplish things.  The notion that we’re these nobly egalitarian, collective, empathetic nurturers is called “difference feminism,” and accepting it, even taking pride in it, is a trap for women because in fact there are many important things you can’t do with those “soft” qualities alone.

Like, judge.

And that brings me to why I think these statements of Sotomayor’s may be irrelevant.

What matters is to examine how she has judged.

Why don’t her public statements, declarations of identity and beliefs, carry the same weight as her decisions?  Because people’s personalities are not the same as their working function.  Think of how many movie actors are banal a-holes in their personal lives and in interviews, and then they take on a character and deliver a powerful performance.  How can such a superficial twit be possessed by a character of such depth and complexity that we are shatteringly moved?  I don’t know, but it happens all the time, and it happens to all of us.  Writers whine and complain and drink and cheat on their mates and in general behave badly until they settle down to write.  Then something else, deeper and impersonal, possesses them and comes through them.  Good judges, I suspect, are possessed, when they are working, by an archetype of the law, by the seriousness and impersonality that it calls them to.  When they’re off work, they could say any damn thing.  There’s not necessarily a connection between a person’s identity and beliefs and his or her work performance.

I’ve had a line in my head for a while that I like:  “‘I’ is the noise of an idling engine.”

So what is important is not what Sonia Sotomayor says when she’s off duty.  What matters is what she has said and done when she’s “on.”

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13 Comments

  1. PatHMV said,

    Very good points.

    On the second one, I think you’re right to one extent, at least. I agree that there can be a vast difference between, basically, what a person says they think, how they would act, and what a person really thinks or would act. The difference is not, generally, due to conscious deception. It’s just a recognition of the difference between, say, the percentage of people who SAY they would jump in the river to save somebody, and the percentage who actually do. A lot of disparities between poll results and actual elections can be explained in this manner, I think.

    So I agree that the most important factor is to look at how Judge Sotomayor has actually judged, rather than her public speeches.

    BUT her public speeches are not entirely irrelevant to the process. First, much of what a judge does is write; a lot of what the judge writes about is not necessarily important to the particular case before them, but are expounded upon to provide some guidance to lower court judges for future cases. There’s not a big leap between the type of public speeches which Judge Sotomayor has made and that kind of writing. Further, appellate court judges are constrained, much more than the Supreme Court, to do their best to apply existing S.Ct. precedents, without making any really new law. So we haven’t had any opportunity to evaluate her judging as a Supreme Court justice. Her non-judicial speeches and writings might provide some assistance in evaluating that.

    But there’s a second reason that they’re not irrelevant. When we elevate an individual to an important governmental post, we are granting them an honor, a great deal of prestige goes along with the appointment. While we aren’t really endorsing every single thing they’ve ever done, we’re certainly saying “this is a person to be entrusted with some of the greatest power in the land.” And thus their entire public life is somewhat relevant.

    To use an extreme example, for the sake of clarity. Suppose that David Duke were an appellate court judge. Suppose even that in judging he faithfully applied the 13th, 14th, and 15th Amendments, and the relevant Supreme Court cases. In other words, suppose he were a good judge, and implemented and ruled in accordance with laws he personally disagree with. But suppose further that in speeches around the country, he praised his own views on the virtues of segregation and the inferiority of non-white races. Wouldn’t we be unwilling to appoint him to the Supreme Court simply because of his association with such anathema views, regardless of the quality of his judging itself? Of course, and rightfully show. We would also deny the seat to a man who regularly beats his wife (were we to know that he did), or to a kleptomaniac. To be sure, there’s a sliding scale there, but the basic point is that public views, even those irrelevant to the judging per se, are appropriately considered in deciding whether to approve of a nomination.

    I’m not at all suggesting that Judge Sotomayor is akin to David Duke. Her racialism, if you will, does not appear to be nearly as extensive or hard core as Duke’s. I just wanted to pick an extreme example to illustrate the general principle.

  2. wj said,

    I think Pat goes in the right direction, just a bit too far. I think that, to some extent, what is said in speeches is colored by the audience being addressed. That is especially true of politicians, as we all know. But it is also true of speeches by judges.

    To take an alternate view of weighing past speeches, consider this bit of history. When William Howard Taft was appointed Chief Justice of the US Supreme Court, he had already served as President (not to mention Governor of Ohio and other political offices). Did that mean that everything that he had said, in every campaign speech over a lifetime, should have been considered in detail when evaluating his nomination?

    So I wouldn’t ignore what a judge has said in the past, outside of their formal legal opinions. But I wouldn’t give it much weight, except in really extreme circumstances. Which the David Duke thought experiment would be, but Ms. Sotomayor would not.

  3. amba12 said,

    Good points, Pat, and I’m really glad you made that last qualification because, as you acknowledge, unqualified comparisons of Sotomayor to Duke are way over the top.

    It remains true, I think, that it’s her decisions that need to be scrutinized to see whether her off-duty opinions are strong and pervasive enough to make her distort the law.

  4. PatHMV said,

    Just to be clear, wj, I wasn’t taking a position on whether or not she should be confirmed, or on how much weight should be given, in her particular case, to her speeches.

    I think that those who believe in a restrained judiciary, those who believe that the first role of a judge should be to try to ascertain the meaning of the text of the Constitution and laws, regardless of their own personal opinions about the wisdom of that text, should vote against confirming Judge Sotomayor. I believe that those who believe that Supreme Court judges should follow a “living” Constitution, deciding what is and is not Constitutional based on things like “societal consensus” or “international opinion,” should vote in favor of her confirmation.

  5. wj said,

    Yes, Pat, I understood where you were going.

    For myself, I believe that someone whose personal views and opinions I frequently disagree with, but who has a track record of ruling from the bench based on following the law and the Constitution (even when it disagrees with me; or when it disagrees with her own views) should be confirmed.

    For example, I could imagine someone who believes that people ought to have a right to some privacy. And, whether as a result or not, believes that abortions ought to be legal. But who thinks that Roe v Wade was garbage as a legal ruling — because it read in things that were nowhere in the Constitution as written. (Actually, I don’t have to imagine it, because that’s pretty much my view.)

    Equally, I can imagine someone who believes that all abortions ought to be illegal. But who finds nothing in the Constitution which says when human life begins. And so does not hold that abortion is definitively unConstitutional either.

    In either case, if the person is being considered for a judicial appointment (as opposed to running for office) the question ought to be not “what do they believe” but “will they follow the law.” And if they have a track record of doing so, then that is sufficient.

    Now if Sotomayor has come out and said that she believes that “societal consensus” should determine what is and is Constitutional, that’s a different story. But I don’t quite see that.

  6. PatHMV said,

    Right, wj, but I think that Judge Sotomayor’s writings have in fact been about the role of the judge, the thinking process the judge ought to follow in reaching decisions. I agree that if she said she were pro-choice, and would proudly vote pro-choice at every opportunity, but also believed that Roe v. Wade was bad law, I’d be fine with her as a judge. But that’s not what we’re talking about with Sotomayor. She quite clearly belongs to the school of jurisprudence occupied by the “liberals” on the Court, liberal not because of their outcomes (Kelo was hardly a “liberal” result, other than to generally increase the power of government), but because of their approach to judicial interpretation of the Constitution.

    There is a significant difference between the judicial interpretation process followed by Justices Scalia and Thomas, on the one hand, and that followed by Justice Souter or Justice Breyer, on the other. The difference is not merely one of outcome, but is over the role of the Court and the primacy of the text of the Constitution. Judge Sotomayor’s decisions and speeches make it quite clear that she approaches interpretation of the Constitution and statutes the same way that Souter and Breyer and Ginsburg do. If you want that, fine. But don’t delude yourself into thinking that her approach is anything other than that.

  7. wj said,

    You know, I think that there are a lot of liberals who agree with you (and are supporting her in part for that reason). But I think that they are going to be unpleasantly surprised by some of the results. In many ways, it will be even worse for the politically correct liberals than Justice Thomas was; they knew he was a minority member who disagreed with them, but they think she is one who agrees with them.

    My impression (and I admit to not having read thru her decisions; to not even being a lawyer) is that, while she talks the liberal line on Constitutional interpretation, what she actually does when ruling is rather different. It is almost as though she feels the need to speak (perhaps even in her own mind) following one approach, but is not willing to actually act on principles that are so antithetical to the actual law.

    I may be totally wrong, of course. But if I’m even close to correct, the howls of outrage will be really impressive.

  8. PatHMV said,

    wj… if that is correct, then we will have to conclude that the Souter seat has become a jinx for the party filling it, yielding a “stealth” appointee, who winds up doing the opposite of what would be desired by the appointing president.

    I think the reality is that she’s behaved fairly properly for an appellate court judge, constrained by the precedents of the Supremes, but when elevated will practice the liberal method fairly strongly.

  9. PatHMV said,

    By the way, I’ll probably be mostly absent for the next week, everybody. I’m leaving in the morning with my dad and 3 brothers on a scuba diving trip to an island off the coast of Honduras. There’s internet access somewhere, but I anticipate being on the beach or the boat most of the time. See you when I get back!

  10. Ruth Anne said,

    Hey, Pat:
    Safe travels.

  11. amba12 said,

    Oooh, you lucky duck!! Have a fantastic time. Are you guys all veteran, certified scub-ers?

  12. wj said,

    Have fun, Pat! An occasional total change of pace is a real help in maintaining one’s sanity. Sounds like you’ve arranged a particularly nice one.

  13. PatHMV said,

    Thanks, gang!

    I’m down here now. We actually have wireless in our beach house. All thanks go to my dad, who is spending our inheritance now, to spend more time with us.

    He’s a real scuba veteran. My brothers have been on 2 or 3 or 4 trips each. This is my first time. I have my check-out/certification dive in the morning (I had lessons about a month ago). It’s gorgeous down here. If anybody wants to follow the trip, I’m posting updates on Facebook. E-mail me if you’re interested, and I’ll friend you.

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