Defending Sonia Sotomayor

Future Supreme Court justice Sonia Sotomayor is getting alot of criticism for this comment she made at the Cultural Diversity Lecture at the UC Berkeley School of Law:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

For example, Stuart Taylor writes, “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.”

An obvious explanation and one that seems to fit well with Sotomayor’s overall speech at Berkeley, yet one that I have not seen presented in other blogs, is that “a wise Latina woman with the richness of her experiences” is in a better position to understand the difficulties faced by a minority in a way that a white man cannot. One of the primary roles (reiterated by, if memory serves me correctly, John Roberts during his confirmation process) of the Supreme court is to defend the rights of the minority (used in general terms here) from being trampled by the majority. All Sotomayor is saying, it seems to me, is that being a particular minority should help one appreciate that responsibility better than say, not being a minority.

Seen in this light her statement sounds innocuous and certainly not racist, as some have implied.

97 Responses to “Defending Sonia Sotomayor”


  • I understand it the same way exactly.

    It seems many on the right are really geared up to play the race card (e.g Newt Gingrich, Tom Tancredo) this seems to be the main thrust of their arguments against her in the early stages of this process. It seems that a lot of people who feel cheated that McCain would not let them discuss Jeremiah Wright during the presidential campaign, feel that this is their chance to grab the 3rd rail of American politics and have a full discussion of the subject. This can get really ugly.

  • I agree – the GOP is in such tatters, its disappointing really. I’m waiting on our next Reagan!

  • Yes, only a Democrat can attack the suitability of a nominee without being branded a racist. Just how it is in this tattered state.

  • “All Sotomayor is saying, it seems to me, is that being a particular minority should help one appreciate that responsibility better than say, not being a minority.”

    But that’s not what she said. She said that is would help her come to better “conclusions.” For a potential Supreme Court Justice to say something like this in a premeditated way presents a real problem. Personally, I think her public statement should disqualify from the seat.

  • Empathy and racism are two different animals. Sotomayor claimed that her ethnic experiences provide her with the ability to make better conclusions than white men. If roles were reversed, and a white man had claimed that being white equipped him with better conclusions, there would be a widespread uproar. It’s a double standard, and we shouldn’t tolerate it at the supreme court level.

  • Aaron,

    Empathy and cold-blooded murder are also two different animals. But, thankfully, Ms. Sotomayor is guilty of neither racism or murder.

    You see, to be a murderer she would have to have killed someone, and to be a racist she would have to believe in the innate superiority of one race over another.

    But that’s not what she believes.

    What she believes is that the life experiences that come from being a minority may give her a more advantageous perspective for judging certain cases. Coincidentally, that is exactly what Alito believes. And exactly what I believe. And exactly what any reasonable person believes.

    Now, if you want to make the case that Sotomayor expressed that sentiment badly in the one sentence that has repeatedly been lifted out of the context of once speech eight years ago, than, frankly, I agree with you. What’s more – I suspect Sotomayor agrees with you. I know Obama does.

    But let’s not pretend Sotomayor is a racist. That’s ridiculous.

  • Laurence,

    Admittedly, it’s difficult to ascertain if a person is a racist based upon a single line from a single speech. But if a conclusion were to be forced from a single example, one would have to conclude that her comment smacks of racism (and possibly sexism if you read her speech) because she asserted that Latinas are better equipped to make better conclusions than white men.

    Now granted, her stated reason is because of “rich experiences” rather than “innate characteristics” which softens the blow, but doesn’t absolve her comment either. It may or may not be a racist comment, but it wasn’t a wise one to make, and quite possibly not a logical one either.

    Alito made a similar mistake, but his wasn’t racist, just unwise. He simply added that he could not help that empathy would play a role in his conscious decisions. The only role empathy has in making logical decisions in court cases is when it serves as a stern external motivator to encourage one to make careful and open-minded decisions. However, it’s important to note that Alito’s mistake doesn’t justify Sotomayor’s.

    And finally, the case she adjudicated with the New Haven Firefighters could bolster the racist claim even more. Suddenly, the racist claim isn’t as ridiculous as you may think. It should be debated thoroughly. She needs to clarify her statement in the 2002 speech at Berkeley, and she needs to give the rationale behind her New Haven decision to toss a promotional exam because blacks didn’t weather the promotional process.

  • There are 3 branches of govt.,judicial,legislative, and executive. Each has specific and separate responsibilities. They are not interchangeable. The judicial branch interprets and deals with laws based on our Constitution, laws already made. The requirements to be judge must include knowledge of and experience with laws and the Constitution and the ability to ignore one’s life experiences in order to be objective.
    Judges do not legislate. The last time judges legislated, we got Roe v. Wade and the abortion approval.Actually Roe v. Wade should be thrown out as not done by Congress, but no elected official has the guts to try to do this. It would be political suicide.

  • Why didn’t my response get published?

  • Aaron,

    Sorry about the comment – my spam filter confused it for spam. It must have been the repeated comments in a short period of time, hopefully it is fixed now. I had to dig deep into the spam pile to find it. Let me know if that is not the one you were referring to.

    Regarding the comment, even with your addendum, I still find the comment overall innocent. It’s really just a logical extension from what I had interpreted, namely, “being a particular minority should help one appreciate that responsibility better than say, not being a minority”…and because of that extra depth, with everything being equal, she can, “more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

    What is wrong with that interpretation? Do you doubt that “One of the primary roles of the Supreme court is to defend the rights of the minority (used in general terms here) from being trampled by the majority”? If you don’t, then do you deny that Sonia Sotomayor, being of Puerto Rican decent, uniquely understands how a particular minority group feels? Do you doubt that this would give her, on the margin, atleast slightly more judicial understanding than other, non-minorities?

    Sure, maybe she was too glib for a justice, but I find her overall statement both factually true and overall innocent.

  • “Regarding the comment, even with your addendum, I still find the comment overall innocent. It’s really just a logical extension from what I had interpreted, namely, “being a particular minority should help one appreciate that responsibility better than say, not being a minority”…and because of that extra depth, with everything being equal, she can, “more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

    It doesn’t really matter what the rationale is, her conclusion is racist because it generically elevates Hispanics over whites. Her deeper understanding of the minority lifestyle does not lend itself to better conclusions. It means she sees things a little differently – that’s it, nothing more.

    “What is wrong with that interpretation? Do you doubt that “One of the primary roles of the Supreme court is to defend the rights of the minority (used in general terms here) from being trampled by the majority”?”

    No, I don’t. The primary role of a Supreme Court Justice is to interpret the law, not to assume the role of righting past wrongs or fighting for the underdog – unless of course, that can be specifically found to be in our Constitution.

    “If you don’t, then do you deny that Sonia Sotomayor, being of Puerto Rican decent, uniquely understands how a particular minority group feels?”

    What does one’s feelings have to do with interpreting the law? Emotional baggage is the last thing one needs to have when they must make a logical conclusions based upon exegesis and past precedents. Feelings can cloud judgment. Feelings cause people to act hastily and to do rash things.

    “Sure, maybe she was too glib for a justice, but I find her overall statement both factually true and overall innocent.”

    Ask yourself if a white man had said that his experiences equip him to make better conclusions than Hispanics or blacks, would you think that the comment was racist?

  • Of course I would, but that is because his comment would have no basis in constitutional jurisprudence….whereas, and here is the important point, Sotomayor’s remark does.

  • Then, my friend, you would have to explain how that is the case.

  • Re-read above…I did.

    Here is the relevant paragraph:

    “being a particular minority should help one appreciate that responsibility better than say, not being a minority”…and because of that extra depth, with everything being equal, she can, “more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

  • Right, but what does that have to do with interpreting the law?

  • Nevermind. I’ve tried explaining myself multiple times. I give up.

  • Quoting from your opening post isn’t what I had in mind. A good explanation moves beyond a simple round of repetition.

    Listen, I understand how life experiences will color the way people perceive events. We all approach things differently based upon unique experiences, but my experiences as a Latino has no bearing on interpreting the Constitution or even past legal precedents. The Constitution is supposed to be a color blind document because all men are created equal under the law. There ought to be no preference for people of color, and clearly Sotomayor rejects this notion based upon her ruling in the Ricci case in New Haven and her comments at Berkeley, which she hasn’t recanted or apologized for.

    Feel free to keep defending her as other Hispanic conservatives like Linda Chavez and myself call it as they see it. Her comments were racist because it elevated one ethnic group above another. This is a sufficient reason to oppose her nomination, and trust me, Democrats needed far less reason when they viciously opposed and filibustered Miguel Estrada.

  • Aaron,
    First, why do you keep bringing up Ricci as if it proves something? It simply does not. Are you aware of the Pappas case – where Sotomayor defended the right of a white supremacist employee of the NY Police Department to distribute racist literature on his own time? To cherry-pick a case, as you have, and pretend is makes her a racist is not a compelling argument.

    Second,
    This hypothetical argument, that you’ve also made, is pretty silly:

    Ask yourself if a white man had said that his experiences equip him to make better conclusions than Hispanics or blacks, would you think that the comment was racist?

    You see, if there existed a world in which white men had been historically discriminated against, and if then laws were passed to specifically end that discrimination, and if then there was a conference to discuss the effect of that discrimination, and in the process of that conference a discussion was held in which a white man (one of the first to be allowed to rise to the level of federal judge) was asked whether or not his status as a white man might positively affect his understanding of this past racism – then I would have very little objection to a white man saying what Sotomayor said.

    But none of those things are true. That world doesn’t exist.

    So, yes, a white man could not, and should not, be allowed to say what Sotomayor said. Because we live in the world we live in, not some hypothetical parallel world where white men have suffered discrimination. Why is that so hard to understand?

    Third,
    Why bring up Miguel Estrada? HP is not a Democrat and neither am I. I, frankly don’t remember much about Miguel Estrada, and I don’t really care how or why the Democrats opposed him. And I’m certainly not going to participate in some tit-for-tat over him. Each candidate should be judged on their own merits.

    Fourth,
    You say that Sotomayor hasn’t apologized. But, of course, her hearings haven’t even started. During those hearings, I fully expect she will backtrack the comment she made. Will you accept her apology? I expect you won’t. So why do you even bring it up? Be honest – you don’t want an apology, and you won’t accept one.

  • Lawrence,

    First, why do you keep bringing up Ricci as if it proves something? It simply does not. Are you aware of the Pappas case – where Sotomayor defended the right of a white supremacist employee of the NY Police Department to distribute racist literature on his own time? To cherry-pick a case, as you have, and pretend is makes her a racist is not a compelling argument.

    I don’t really care about the Pappas case. I’m sure she has done a good job adjudicating cases in the past, but unfortunately, the measure of a judge is more often determined by her lapses in judgment and how significant those lapses were.

    I bring up the Ricci case for a few reasons. First, she didn’t reveal her reasoning for upholding the city’s decision to discard the test, which isn’t wise. Second, she should have at least let the case go to court because A, it would have been a good pilot case for civil rights, and B, those firefighters who prepared extensively for a shot at a promotion deserve a reward for the fruits of their labor – especially the firefighter who had dyslexia. And third, her ruling suggests a racial component – especially considering her consistency in making speeches utilizing the “wise Latina” comments. By confirming New Haven’s decision to toss the exam, she effectively blocked those firefighters from presenting their case that the test didn’t not discriminate against blacks. It would appear that she didn’t care if the firefighters could present a good case, she stopped it from happening on the basis of racial recompense.

    Second,
    This hypothetical argument, that you’ve also made, is pretty silly:

    Ask yourself if a white man had said that his experiences equip him to make better conclusions than Hispanics or blacks, would you think that the comment was racist?

    You see, if there existed a world in which white men had been historically discriminated against, and if then laws were passed to specifically end that discrimination, and if then there was a conference to discuss the effect of that discrimination, and in the process of that conference a discussion was held in which a white man (one of the first to be allowed to rise to the level of federal judge) was asked whether or not his status as a white man might positively affect his understanding of this past racism – then I would have very little objection to a white man saying what Sotomayor said.

    But none of those things are true. That world doesn’t exist.

    What does any of that have to do with my charge that Sotomayor made a racist remark? You’re assuming that any of those hypotheticals are actually germane to my comment. What does a historical setting of discrimination against minority groups have to do with reverse racism? It doesn’t matter of the white man has been in power – racist ideology is wrong no matter what color of skin a person happens to have.

    So, yes, a white man could not, and should not, be allowed to say what Sotomayor said. Because we live in the world we live in, not some hypothetical parallel world where white men have suffered discrimination. Why is that so hard to understand?

    I don’t think the problem of understanding is with me. It appears that your saying (and correct me if I have it wrong) that it’s okay when minority groups discriminate against the majority, but not okay when it’s the reverse. If that’s not what you’re saying, than I apologize, but I cannot figure out what you’re point is in objecting to my hypothetical.

    Third,
    Why bring up Miguel Estrada? HP is not a Democrat and neither am I. I, frankly don’t remember much about Miguel Estrada, and I don’t really care how or why the Democrats opposed him. And I’m certainly not going to participate in some tit-for-tat over him. Each candidate should be judged on their own merits.

    I brought up Miguel Estrada for one simple reason. Unlike Miguel Estrada, Sonia Sotomayor isn’t just being opposed because she shares a different political ideology. She is being opposed because there is strong indication that she sees color as a significant factor in determining social justice and that she also sees the judiciary as having legislative capabilities. These two concepts are dangerous when coupled together.

    Fourth,
    You say that Sotomayor hasn’t apologized. But, of course, her hearings haven’t even started. During those hearings, I fully expect she will backtrack the comment she made. Will you accept her apology? I expect you won’t. So why do you even bring it up? Be honest – you don’t want an apology, and you won’t accept one.

    One cannot apologize until hearings are taking place? Listen, she’s had multiple meetings with members of the senate, including my home state senator Herb Kohl. She did not backtrack her comments when speaking with him, but merely stated that she felt she did not say anything that merited harsh criticisms. Perhaps she will have a change of heart when a filibuster occurs, but then again, I don’t think republicans have the muscle to make her remorseful anyway.

    Honestly, an apology would be helpful if her “wise Latina” statement was a one time occurrence. But new information is surfacing that suggests that she used such phrases in more than one speech. So, I’m not exactly sure if the apology would make a significant difference.

  • Okay, the author made quote a few statements, but I only have time for this one:

    What Sotomayor has meant is that a Latina woman is better placed to render judgments because being a member of a minority group makes one especially alert to being perceived in various ways as an other, and that being a member of a minority group of disproportionate poverty lends one sensitivity to the difficulties of being poor and how our concepts of justice might be informed by that.

    There is indeed a certain smugness in the statement, as if to be a middle-class white person is to inherently lack the empathy, imagination, or just intelligence to filter one’s judgments through walking in other people’s shoes.

    However, Sotomayor rather plainly did not mean that Latina people are in some inherent way, possibly genetic, better posed to render legal judgments than white people.

    First, the author builds a small straw man argument. I say small because conservatives aren’t having a problem understanding what Sotomayor meant when she said that wise Latinas come to better conclusions than white men. It was obvious to me that she not mean that Hispanics have inherent characteristics that prove superiority to whites, but rather Hispanics have “experiences” that provide a superiority in making conclusions.

    Whether the claim is made on the basis of inherent characteristics or discriminatory experiences, generalizing that an ethnic group is better than another in regard to making decisions is racist. I’m not saying that Sotomayor is a racist, but I’m conceding that her statement was.

    Second, it’s doubtful that living the life of a minority makes one a better candidate for judging cases that deal with minority issues. Although emotions are helpful when providing a person with personal drive to achieve goals, they tend to cloud judgment. It reminds me of the new Star Trek movie where Spock had to decline being the captain of the Enterprise because he saw his planet get destroyed by a villain he would have to pursue. He acquired too much emotional baggage to make clear and logical decisions, and for the best interest of his crew, he had to step down.

    A similar argument can be made of those who experience a wide array of discrimination. At some point, the emotional baggage that comes with being downtrodden can affect the way we perceive reality and the way we react to certain situations. Would you expect a female judge who was a battered wife to think clearly and make better conclusions when adjudicating a case involving a woman who alleges spousal abuse? Would there not be a conflict of interest?

    Yes, there are some advantages when people have empathy, but there are just as many, if not more, disadvantages that come with it as well. We don’t need judges that read into the law using emotion as their guide, we need judges that see the law through a logical lens. Sensitivity is one thing, empathy is another.

  • I’m too tired to get into it (were nitpicking now, its just not worth the effort) so I’ll just be succinct: I still disagree that it was racist.

    But I’ll let you have the last word.

  • I’m very disappointed. Keep the blinders on. Word to the people.

  • Sorry Aaron, but logic requires emotion. Our brains are wired that way. Without emotional commitment to a goal our rational faculty becomes useless (e.g. it is impossible to choose the best course for crossing a busy street if I could care less whether I live or die).

    Wisdom has always included logic, information, understanding, experience, intuition, and God forbid, empathy.

    p.s. you might as well argue that white people (the opposite of your downtrodden) should not be allowed to preside over cases involving white people (say in a trial where a downtrodden Puerto Rican woman killed a rich white guy) because there might be a conflict of interest.

  • Cockroach,

    Sorry Aaron, but logic requires emotion. Our brains are wired that way. Without emotional commitment to a goal our rational faculty becomes useless (e.g. it is impossible to choose the best course for crossing a busy street if I could care less whether I live or die).

    I’m starting to wonder if you even read my post. Here is what I said regarding emotions: “Although emotions are helpful when providing a person with personal drive to achieve goals, they tend to cloud judgment.”

    So, your first paragraph was unnecessary.

    Wisdom has always included logic, information, understanding, experience, intuition, and God forbid, empathy.

    I agree. Wisdom includes characteristics like empathy, but this characteristic is almost entirely irrelevant to legal interpretation. For instance, a mother would be wise to cut an equal piece of pie for each of her three children as to avoid subsequent squabbles about fairness. This decision is based more upon empathy than it is logic. A logical mother would preface her decision with a lecture how unimportant it would be if one kid received a slightly larger piece than the other in the overall scheme of things.

    Keeping on theme, a Supreme Court Justice ought to be concerned about making the most logical decision based upon solid exegesis of law and examination of past practice than trying to placate certain ethnic groups.

    p.s. you might as well argue that white people (the opposite of your downtrodden) should not be allowed to preside over cases involving white people (say in a trial where a downtrodden Puerto Rican woman killed a rich white guy) because there might be a conflict of interest.

    I think you missed my point entirely. My point is that we ought not to choose candidates on the basis of ethnicity – period. This goes for whites, blacks, Asians, and yes, Puerto Ricans.

    The conflict of interest arises from those experiences that had a particular affect on a candidate. If your wife falsely accused you of spousal abuse, would you feel comfortable in front of a judge who was abused by her husband? You should probably answer this question if we are to have an open discussion about the role of empathy in legal interpretation.

  • Here is what she said: “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.”

    “inherent physiological … differences”. A possibility she “abhors less” than others. “gender and national origins”

    Are you sure you want her as a judge?

  • I am not arguing that she is ideally the perfect candidate. What I am arguing is that given the political circumstances – with one of the most liberal presidents in history, with a congress with a supermajority, and given all other more liberal justices he could have picked – she is more than we could have asked for, by far.

    Prevent her from being seated and we could get something really scary.

  • HP,

    Finally something we might be able to agree on. Sotomayor scares me, but I’m sure I could be scared even more with another candidate.

  • Sorry for the delay, I had forgotten about this comment.

    Aaron–

    My point about logic and emotion was one of actual cogitation and choice. You spoke of personal goals and the drive to achieve them–I did read this but found it irrelevant to the problem I brought up. I was emphasizing your unexamined Cartesian assumptions regarding logic and emotion. While some have viewed emotions has mostly tending to cloud the light of reason, not everyone does. Narcissists and psychopaths can be logical if you equate logic with emotion-free and empathy-free calculation–this does not make them better decision makers than those who calculate with their emotional and empathetic capacities intact. The weight of evidence coming out of evolutionary biology and social neuroscience is stacked against your simplistic understanding of logic and emotion. That was my point.

    Since you feel the need to address legal interpretation, what say you about equity? That aspect of jurisprudence grew precisely out of the need to address injustice not covered by a remedy at law. Without empathy, how would a judge proceed in the absence of writ?

    In your view, what exactly is a “solid exegesis of law and examination of past practice.” Why focus on exegesis anyway when the adversarial system has never been purely statutory or governed by code. I would think you were French, if I didn’t know better. If by past practice you mean stare decisis, I’m sorry to disappoint you–that tradition has been watered down repeatedly primarily by the so-called conservatives on the court. If this romantic deference to past practice, i.e. stare decisis, were real then I would expect the decisions of the Warren court to be in full force.

    “The conflict of interest arises from those experiences that had a particular affect on a candidate. If your wife falsely accused you of spousal abuse, would you feel comfortable in front of a judge who was abused by her husband?”

    As most of your examples of emotional cloudiness and baggage implicate women, I think perhaps there is something else going on in your reasoning. Only you can answer that. For now, I will say that at the very least you are confusing bias with empathy. Some people who are the abused or downtrodden as you put it end up with the exact opposite attitude. Some of those people might say: “hey, i was abused too; that is no excuse for what you did! I know about abuse; you weren’t abused.” Being too sympathetic or too harsh based on the judge’s having “been there” is bias either way.

    But trying to step into one’s shoes to understand why a person did this or that thing is precisely what a jury does. It also what a judge must do in a bench trial. Would you remove the centrality of mens rea from criminal law because of your fear of empathy?
    Perhaps I am misunderstanding your point. That tends to happen to me when people use distinct concepts such as empathy, bias, and emotion interchangeably.

  • “The weight of evidence coming out of evolutionary biology and social neuroscience is stacked against your simplistic understanding of logic and emotion.”

    Really? I would LOVE for you to cite some of this “evidence”.

    Thanks,

    Zeus

  • Zeus–

    Glad to see someone interested in science and not mere ideology.

    Here is a book to start you off:
    Antonio Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain, Avon Books, 1994 (It'[It’s a bit dated but the fundamentals are still sound). Details here: http://serendip.brynmawr.edu/exchange/node/1963

    Here is a recent study regarding wisdom and its link to emotion and altruism:
    Thomas W. Meeks; Dilip V. Jeste. Neurobiology of Wisdom: A Literature Overview. Archives of General Psychiatry, 2009. The gist:

    “Meeks and Jeste focused primarily on functional neuroimaging studies, studies which measure changes in blood flow or metabolic alterations in the brain, as well as on neurotransmitter functions and genetics. They found, for example, that pondering a situation calling for altruism activates the medial pre-frontal cortex, while moral decision-making is a combination of rational (the dorsolateral prefrontal cortex, which plays a role in sustaining attention and working memory), emotional/social (medial pre-frontal cortex), and conflict detection (the anterior cingulate cortex, sometimes also associated with a so-called “sixth sense”) functions.”

    You may also want to consult John Cacciopo’s work which can be searched at http://wisdomresearch.org/. Most of his recent work is on empathy and mirror neurons.

    If you have any questions or require further leads, please do not hesitate to ask.

    En hora buena.

  • Cucaracha,

    I appreciate the time you took to cite those resources. However, I have enough to read already and would like to hear your thoughts and reasoning on the subject. What exactly are you implying, according to your resources, about Aaron’s understanding of logic and emotion?

    I have been debating for almost 10 years and to suggest, to well read people, to go read more books is a bit lazy and intellectually dishonest in most cases. I will assume this is not the case now.

    Please tell me your thoughts, based on your sources and please cite the information not an entire book.

    Thnaks,

    Zeus

  • Zeus–

    you specifically asked me to cite the evidence; so, i did:

    “Really? I would LOVE for you to cite some of this ‘evidence’.”

    I already laid out my argument (logic requires emotion) and I even gave you the gist of one of the studies above should you be too busy or lazy to read the citations yourself. There is not much else I can do for you.

    En hora buena…

  • OK, I read them and I think it’s conjecture. Now what?

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