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Sotomayor's "Latina Judge's Voice" Speech Revisited:

After some consideration, I have decided that Sonia Sotomayor's 2001 speech, "A Latina Judge's Voice" deserves more extensive analysis than I gave it in a previous post. I still believe that the speech shows that Sotomayor thinks that judges can often legitimately base decisions in part on their racial or ethnic backgrounds. I especially think that that interpretation is by far the most plausible reading of Sotomayor's statement that she hopes 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."

However, it would be foolish to overlook the fact that many people, including serious commentators such as University of Texas lawprof Frank Cross and Reason's Kerry Howley believe that the relevant part of the speech is actually innocuous. I can't ignore the possibility that the speech is unclear, or that I just got it wrong. At this point, however, I still think that my initial interpretation was largely correct, and in this post I will try to explain why. For convenience, here is the entirety of the paragraph where the "wise Latina woman" sentence occurs:

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.

I. Is Sotomayor's Claim Limited to Discrimination Cases?

Some of my critics, including Cross, argue that this passage merely means that a Latina judge will, on average, do better than white males in deciding discrimination cases (perhaps because of her greater personal experience with discrimination). The first sentence of the next paragraph does in fact state that we should "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." However, it seems unlikely that Sotomayor's claim really is limited to such cases. After all, she made it in explicit response to Justice O'Connor's far more general statement that "a wise old man and wise old woman will reach the same conclusion in deciding cases." If Sotomayor meant to say that O'Connor's argument is correct the vast majority of the time with the exception of discrimination cases, it is strange that she gives no hint of that. Moreover, in an earlier part of the speech, Sotomayor denies that the goal of transcending one's race in judicial decisionmaking "is possible in all or even in most cases." That suggests that she believes her argument to have much broader application than merely to discrimination cases.

Even if Sotomayor's claim really is limited to discrimination claims, it is still deeply problematic. It is wrong to assume that a judge belonging to a group that is often victimized by a particular type of injustice will be generally superior in deciding cases that address it. Are white male judges generally superior in hearing reverse discrimination cases such as the one Sotomayor decided in Ricci v. DeStefano? Are judges who own real estate better qualified to hear takings claims? Perhaps judges who own businesses are the ones best qualified to hear claims asserting that an economic regulation is unconstitutional or otherwise illegal. A judge belonging to a group victimized by a particular type of injustice might be less likely to reject similar claims that have merit. On the other hand, she might also be excessively prone to accept claims that should be rejected or to ignore important interests on the other side of the case. Which effect dominates the other will probably vary from judge to judge and from case to case. In any event, we will likely be better off if judges assess discrimination cases and other claims as objectively as possible, while seeking to minimize the impact of their own personal racial or ethnic backgrounds.

II. Did Sotomayor Merely intend to Recognize the Impact of Judges' Racial Backgrounds on their Decisions, Without Embracing it?

Other critics, including Howley, argue that Sotomayor merely meant to recognize the commmon sense point that judges' decisions are sometime affected by their racial backgrounds, without claiming that this is a good thing. In one part of the speech, Sotomayor does indeed state the following:

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. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

However, in the very next sentence Sotomayor said that "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." This suggests that it isn't necessarily a good idea for judges to strive to "transcend . . . personal sympathies and prejudices." In combination with the above-quoted statement about the supposed superiority of Latina judges over white male ones in deciding many cases, it seems that Sotomayor believes that judges not only take account of their racial background in making decisions, but are often justified in doing so. Perhaps Sotomayor also believes that judicial transcendance of personal sympathies and prejudices is a desirable goal; but since in her view it is probably impossible to achieve in a large number of cases, it will often be a "disservice" to pursue it at the expense of denying the special insights that might sometimes be had by relying on those "prejudices" after all. That doesn't mean that Sotomayor believes that a judge's race or gender is a useful resource in all cases or that impartiality is completely worthless. After all, she said that the "wise Latina" judge is likely to do better "more often than not," not that she will have an advantage across the board. However, it's clear that she does believe that race and gender are useful guides to judicial decisionmaking in at least a large number of situations.

In addition, if Sotomayor really did merely mean to say that judges sometimes wrongly take account of their personal background in deciding cases, there would have been no need to dwell on such an obvious point at great length - one that hardly any serious commentator disagrees with. The real question - the one she actually tried to address - is how we should react to this state of affairs. One approach - the one I think best - is to try to appoint judges who will ignore their own racial backgrounds as much as possible and to strive to promote that as a norm for all judges to follow. Sotomayor's approach, by contrast, is to endorse reliance on personal background in at least some cases, and to urge minority judges to offset the "personal sympathies and prejudices" of their white colleagues with their own.

Finally, I think it's telling that hardly any one would defend a similar statement made by a white male judge. As legal columnist Stuart Taylor puts it:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences" [as Sotomayor did later in her speech].

I don't think that Sotomayor is a "racist and a sexist," nor do I think she should be "banished from polite society." However, her statement does show that she believes that judges should often base decisions in part on their personal racial and gender backgrounds. If a white male judge had said something similar, few would deny that such (or something much worse) was the import of his words. Sotomayor's speech should be judged by the same standards.

I would have cut Sotomayor more slack if the statements in question had been off the cuff remarks rather than part of a prepared speech delivered as a keynote address at a conference; the speech was also published in a law journal in 2002, at which point Sotomayor could have removed or clarified any part of her remarks that didn't really reflect her considered views. I would also be willing to ignore the speech if she had repudiated it at any time in the past eight years. I will even give her the benefit of the doubt if she repudiates the more problematic parts of the speech now (perhaps at her confirmation hearings). We have all sometimes made mistaken statements that we admit to be wrong in retrospect. But until that happens, I can't avoid the conclusion that the speech reveals a troubling element of Sotomayor's view of judging.

UPDATE: Frank Cross authorized me to post the following from e-mails he sent me clarifying his position:

I didn't mean the statement was innocuous. Just that it was limited to the discrimination context. I think it is objectionable in that context as well. Though not outrageously so, as I suspect it is a common psychological feeling for anyone that they are right and others wrong . . .

I think she was talking about the discrimination context, I think it's wrong to say that a Latina woman would make a "better" decision than a white male in this context, but I think it is right to think that a panel including diversity would make a better decision in this context.

Melancton Smith:
Ilya...what is 'reverse descrimination'? Sorry, just a pet peeve of mine. I find the term a bit offensive.
5.28.2009 12:30am
John Humboldt (mail):

If a white male judge had said something similar, few would deny that such (or something much worse) was the import of his words.



John Roberts said judges should call balls and strikes. But baseball is an American and historically an Anglo sport. Not to mention the assumption there is perfect even-handedness is possible. That Roberts discounts his whiteness and maleness is perhaps a bias of its own sort. But no one criticized it.
5.28.2009 12:37am
Matt_T:
Melancton Smith, you'll be even less pleased to discover that I initially read your commenting handle as "Melatonin" Smith and thought for a moment that you had missed a post-appropriate joke by two letters.

Speaking of melatonin, my circadian rhythms are summoning me away from the computer. Great post as usual, Prof. Somin.
5.28.2009 12:40am
Anton Sirius (mail) (www):
I can't help but see the "wise Latina" line as something of a self-deprecating joke in context, given what precedes it. "There's no real definition of wise, but a wise Latina like me is better than any white guy!"

It'd be nice to have video of the actual lecture.
5.28.2009 12:44am
Constitutional Crisis (mail):
You are reading far too much into the statement, perhaps as a result of your own bias (i.e., desire to impugn Sotomayor's credentials and qualifications because you disagree with her on certain fundamental issues). A wise Latina will reach a better result than a white man without the same experience? Big deal. The context of the statement is the indeterminate - but desirable - condition of wisdom. Insofar as wisdom leads to "correct" determinations, then the statement is essentially a tautology. Similarly, a wise old white man will reach a better result than a Latina without the same experience.
5.28.2009 12:48am
Ilya Somin:
John Roberts said judges should call balls and strikes. But baseball is an American and historically an Anglo sport. Not to mention the assumption there is perfect even-handedness is possible. That Roberts discounts his whiteness and maleness is perhaps a bias of its own sort. But no one criticized it.

Actually, African-Americans and Hispanics have been disproportionately represented among top major league palyers for several decades now. Judge Sotomayor, an avid baseball fan, might dispute your claim that it is an "Anglo" sport.
5.28.2009 12:49am
Ilya Somin:
The context of the statement is the indeterminate - but desirable - condition of wisdom. Insofar as wisdom leads to "correct" determinations, then the statement is essentially a tautology. Similarly, a wise old white man will reach a better result than a Latina without the same experience.

I think it's pretty obvious she didn't mean to make the completely trivial point that a wise person (of whatever race) is likely to make better decisions than one lacking in wisdom. It makes no sense in context.
5.28.2009 12:53am
Constantin:
Question, Ilya, on your conclusion that she's not a racist (or a sexist): Were Stuart Taylor's hypo true, would not the obvious conclusion be that the white speaker certainly was a racist, regardless of whatever else the guy had done in his life?
5.28.2009 12:57am
Arnostocles:
Ilya,

He said baseball is historically an "Anglo" sport, not that baseball is an "Anglo" sport.

Anyway, I wish baseball were an "Anglo" sport - that way all the talent in the UK, West Indies and India/Pakistan that gets wasted in cricket could be put to use in baseball

Baseball is better than cricket, and Sotomayor is better than jealous law professors.
5.28.2009 12:57am
Constitutional Crisis (mail):
"It's obvious" is not an argument. I'm just reading the plain meaning of the text. You're the one contriving all kinds of other motivations to ascribe to the judge. It is your burden to show why the text does not mean what it says. Not simply speculate and indict woth innuendom
5.28.2009 12:57am
Constitutional Crisis (mail):
innuendo.
5.28.2009 12:59am
miss p (mail):
Prof. Somin, how do you respond to, and differentiate, Alito's statements at his confirmation hearing, quoted here?
5.28.2009 1:00am
JakeCollins:
While I often find Professor Volokh's writings insightful, I think his attachment to winning the argument has led him to distort Sotomayor's perspective (a common risk for a lawyer). In particular, he says
"In combination with the above-quoted statement about the supposed superiority of Latina judges over white male ones in deciding many cases, it seems that Sotomayor believes that judges not only take account of their racial background in making decisions, but are often justified in doing so."

V seems to be implying that Sotomayor has a neutral perspective (her inner white male), and that she she is making a deliberately pernicious decision to inject her race into her decision-making. Sotomayor's whole point is that it's impossible to separate one's life experience from one's perspective on the world, and this perspective will impact one's judging. In fact, Sotomayor in that same speech says judges should strive for neutrality, but she also recognizes the limitations of human frailty--an anti-utopianism that any conservative should appreciate.
The fact that so many white males have difficulty wrapping their head around the fact that there is no zero-point of absolute neutrality proves Sotomayor's point. If you're white in America, it's quite easy not to think about one's race. But when you're a Puerto Rican woman who will be always face accusations of being a quota queen no matter how great one's achievements, it's a bit more difficult.
5.28.2009 1:01am
Steve:
Actually, African-Americans and Hispanics have been disproportionately represented among top major league palyers for several decades now.

Not even close. African-Americans comprise about 8% of MLB players, as opposed to their 12% representation in the public at large.
5.28.2009 1:06am
Arnostocles:

I think it's pretty obvious she didn't mean to make the completely trivial point that a wise person (of whatever race) is likely to make better decisions than one lacking in wisdom. It makes no sense in context.


Perhaps she was making the simpler point that a Latina judge could be wise.

That point appears obvious and trivial, but in light of the fact that there has never been a Latina nominated to the high court, and that many have already derided her appointment as "racially motivated," as an example of "affirmative action," and as a political tactic to appease "special interests," it seems like there are still doubts as to whether there is such a thing as a capable, wise Latina judge.
5.28.2009 1:10am
Arnostocles:

Not even close. African-Americans comprise about 8% of MLB players, as opposed to their 12% representation in the public at large.


Africa-Americans historically used to have a much greater representation in baseball.

CC Sabathia took a lot of criticism [mostly from white commentators] when he voiced his concerns about the steady decline in Africa-American players.
5.28.2009 1:15am
BGates:
I'm just reading the plain meaning of the text.

Now, that's an argument.
5.28.2009 1:15am
James Moylan (mail) (www):
Constitutional Crisis:
innuendo

Isn't innuendo some sort of a Latino suppository?
5.28.2009 1:16am
JakeCollins:
Oops. I realized in my above post I attributed the article to Volokh rather than it's actual author, Ilya Somin. This board really needs an edit function.
5.28.2009 1:21am
James Moylan (mail) (www):
Miss P beat me to the punch however I will post Alito's words so as to provide some context for the ludicrous idea that the nominee is a racist:

Judiciary Committee Hearing on Judge Samuel Alito's Nomination

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
5.28.2009 1:21am
Anynonyno:
Although the sentence is hard to understand (and may not have been that well thought out in the first place), it seems to me that Sotomayor probably meant to suggest that on the whole, wise Latina judges are likely to have had a richer array of life experience than wise white male judges have had.

If you accept the fairly banal claim that judging is inevitably influenced by the judge's life experiences, then you might also agree that a judge whose life has included a greater variety of experience will make better decisions more often than not. It seems to me, at least, that that's probably true. A person with varied life experience has more to draw on than someone who doesn't.

What's arguably problematic, then, is the generalization that a Latina judge is likely to have had a richer array of life experiences than a white male judge. And I can see why some folks would take offense at this seeming belittlement of the many and various experiences of white men. But I think the generalization isn't entirely indefensible.

I'm a white male myself. Having recently attended an elite law school, I'm the kind of white male who might one day become a judge, and I've known plenty of other people who fall into that category. Some of them have had fascinating lives. Others, not so much -- there are plenty of white men who become elite lawyers and judges, who have lived their whole lives in a sort of middle-class or upper-class bubble. They have not had the interesting, challenging, complex, formative experience of being in one of the more downtrodden groups in society, whether it be poor people, immigrants, blacks, Mexican-Americans, or whatever else.

Now, I'm not saying that experiences like that are the only type that's important to have. But I do think it's easier for a judge who hasn'tlived their whole life as part of the dominant group in society to put him-or-herself in the shoes of a white upper-middle-class straight Christian business executive, than the other way around. That's because of the way the culture operates: if you aren't part of the dominant group, then the pop culture, mass media, and high culture you encounter throughout your life are likely to give you a reasonable idea of how the dominant group sees the world. (For example, I'm not Christian, but by living in the USA one ends up absorbing a reasonable general idea of what some mainstream Christian perspectives are like; but I have very little idea of what a Hindu perspective is like.)

Again, to be clear: no one's suggesting that all white male judges are shallow or inexperienced or clueless. But I do think it's a not-ridiculous idea that living life as something other than a white male makes it easier to understand certain other people's experiences, perspectives, motivations, etc. -- and that the reverse is not equally true.

To summarize: I think Sotomayor was making the generalization that, all other things being equal, a wise Latina judge has access to a richer array of life experiences than a wise white male judge has, and these life experiences are likely to help her make sounder decisions. You can disagree about whether that generalization is true, but I submit that it would be unfair to call it "racist," and it would be unfair to reduce it to a claim that Latina judges should be especially friendly towards Hispanic plaintiffs or anything like that.
5.28.2009 1:24am
catchy:

In any event, we will likely be better off if judges assess discrimination cases and other claims as objectively as possible, while seeking to minimize the impact of their own personal racial or ethnic backgrounds.


You're conflating two issues that Sotomayor isn't particularly clear in distinguishing either.

1. Problematic cases of bias based on racial/gender backgrounds. Sotomayor's position seems to be that this undesirable tho inevitable to some extent. Given that no one is ideally rational, it's desirable that the bias doesn't tilt mainly in one direction. i.e. it's good that a homogeneous bias might be mitigated by more diversity.

2. Non-problematic cases where justices draw on their own personal experiences to inform a ruling. Sotomayor seems to take these as a given as well. Given (1) a person's gender and ethnicity typically influence her personal experiences, and (2) a variety of experiences are more desirable than a uniformity, ethnic + gender informed rulings are a plus for these situations as well.
5.28.2009 1:25am
Suzy (mail):
Two comments, on each of the two main points above:
1. First, O'Connor's claim itself (even if she is not the original source, she has since repeated it) occurs in the context of discussing the impact of female judges and specifically having women on the Supreme Court. So the fact that Sotomayor is responding to O'Connor is in no way evidence that her claim is not limited to discrimination cases. As you point out, not only does the following passage discuss such cases, but this issue recurs throughout the entire speech. Here's the speech.

Halfway through the speech, Sotomayor cites evidence that, "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." Apparently, it's not so "wrong to assume" that on the whole, members of different groups show such differences in their judgments. However, she also vigorously affirms that judges should decide questions as objectively as possible. Her point is that we cannot erase the life experiences we rely on in making choices, so the goal is not to ignore them, but to constantly check and reevaluate (her words) our assumptions. This takes work, which is not going to be done if we assume that such experiences have no impact on our decision making, or if we simply don't bother and don't care.

2. The second section above misreads her comments about the significance of racial background in judging. Her observation that it is not always possible or desirable to ignore our differences is fully compatible with her claim that we should always strive to transcend personal sympathies and prejudices. Attending to differences does not mean "relying on those "prejudices" after all". On the contrary, it is impossible to eradicate our own prejudices while pretending that personal experience does not exist or matter. As she observes, judges are forced to choose, and if they do not ask themselves questions about how their own experiences and sympathies might impact their judgment, they are never going to achieve that ideal of fairness. Though she says it's an ideal to which we aspire, rather than ever perfectly achieving, she still asserts that we must continue to strive for it. I do not see any suggestion that minorities are supposed to offer a counterbalancing prejudice. Instead, she notes that there is no one perspective from which members of a minority will view the world. Seems quite realistic and sensible.
5.28.2009 1:29am
BGates:
Perhaps she was making the simpler point that a Latina judge could be wise.

During a speech in front of an audience of Hispanics in the legal field? Did you think that audience had doubts on the subject?

many have already derided her appointment as "racially motivated,"

Not as many as have celebrated the racial significance of it. Do you think there was no racial motivation?

a political tactic to appease "special interests,"

Again, you can't possibly dispute that.

it seems like there are still doubts as to whether there is such a thing as a capable, wise Latina judge.

Only to people who see the world in strictly racial terms, like Democrats.
5.28.2009 1:29am
24AheadDotCom (mail) (www):
1. I don't think Howley really counts as "serious".

2. Perhaps the second paragraph of this 1974 document might give us a bit of a clue to her thoughts.

3. Here's my roundup. If anyone has more information, leave a comment there.
5.28.2009 1:31am
Psalm91 (mail):
"Prof. Somin, how do you respond to, and differentiate, Alito's statements at his confirmation hearing, quoted here?"

Alito is a conservative Republican guy. That's why his ethnic identification and empathy is admirable.
5.28.2009 1:32am
BGates:
I'm not Christian, but by living in the USA one ends up absorbing a reasonable general idea of what some mainstream Christian perspectives are like

Which influenced these reasonable general ideas more, "Boston Legal" or "The Daily Show"?
5.28.2009 1:33am
catchy:
The Stuart Taylor quote was dippy the last time you used it:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.


The claim isn't that Latinos or women are superior per se.

It's that a diversity of experiences -- shaped by a justice's gender and ethnicity -- are superior to a homogeneity.

If and when we lived in a society where more white males in the judiciary would add heterogeneity to the background experiences of the justices, Sotomayor's arguments would militate in their favor.
5.28.2009 1:36am
Psalm91 (mail):
24ahead, we are waiting for your post on the connection between SS and Bill Ayers.
5.28.2009 1:37am
Ilya Somin:
I will post Alito's words so as to provide some context for the ludicrous idea that the nominee is a racist:

Judiciary Committee Hearing on Judge Samuel Alito's Nomination

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.


I never said that Sotomayor is a "racist." Indeed, I explicitly said the opposite. As for Alito, what he said was that discrimination cases make him think of his relatives and cases involving children make him think of children. He did not, however say that those thoughts should influence his determination of the legal outcome. To the contrary, he emphasized that "it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result." Sotomayor, by contrast, argued that a sense of racial or ethnic identification is often a legitimate factor in judicial decisionmaking.
5.28.2009 1:48am
Jay:
Of course, the Alito quote works both ways--if the liberals invoking it now think it's the same thought being expressed by Sotomayor, why didn't it make them support Alito at the time?
5.28.2009 2:02am
Ilya Somin:
The claim isn't that Latinos or women are superior per se.

It's that a diversity of experiences -- shaped by a justice's gender and ethnicity -- are superior to a homogeneity.


That may be a true claim, but it's not the one that Sotomayor made.
5.28.2009 2:03am
24AheadDotCom (mail) (www):
She just got much, much worse. At least as of 2000, Sotomayor was a member of the NCLR, a far-left racial power group that continually supports illegal activity. Dozens of posts about their activities going back several years at the link.
5.28.2009 2:06am
miss p (mail):
Prof. Somin said:

[Alito] did not, however say that those thoughts should influence his determination of the legal outcome. To the contrary, he emphasized that "it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result." Sotomayor, by contrast, argued that a sense of racial or ethnic identification is often a legitimate factor in judicial decisionmaking.


Where and how did she make this argument? I didn't see anything about "a sense of racial or ethnic identification" (she referred to experience and wisdom), "often," or "legitimate factor." Is this your honest intellectual assessment of this speech? I think you ought to read it again.

Justice Alito, opened his confirmation hearings, where he was speaking directly on the subject of his qualifications for service, with his life story. He said during Sen. Coburn's questioning:


Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement.


To me, it sure looks a lot as if Justice Alito believed that his life experiences, particularly the obstacles his parents' faced, gave him some wisdom that was relevant to his judicial decisionmaking and qualifications to serve on the Supreme Court.

Moreover, he didn't just say that those cases that remind him of his life or the lives of his loved ones made him "think of his relatives" and "think of children" in some sentimental way. He said explicitly, "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."
5.28.2009 2:12am
Constitutional Crisis (mail):
The judge for whom I clerked often told us that the result depended upon whether you came to the issue with a question or an answer. Here, the faux outrage (as is often mustered by partisans, whomever the nominee) results from people coming to the issue with an answer. They want to see Sotomayor as advocating biased judging, while Alito is just reflecting on his past and Roberts is just calling a baseball game impartially. Tempest in a teapot. But I guess if you ring the bell enough, eventually everyone will blame the bell for their headache.
5.28.2009 2:13am
miss p (mail):
Please excuse the typos in the above post, particularly the apostrophe following "parents" in the second-to-last paragraph.
5.28.2009 2:14am
Asher (mail):
What's arguably problematic, then, is the generalization that a Latina judge is likely to have had a richer array of life experiences than a white male judge. And I can see why some folks would take offense at this seeming belittlement of the many and various experiences of white men. But I think the generalization isn't entirely indefensible.

I'm a white male myself.... there are plenty of white men who become elite lawyers and judges, who have lived their whole lives in a sort of middle-class or upper-class bubble. They have not had the interesting, challenging, complex, formative experience of being in one of the more downtrodden groups in society, whether it be poor people, immigrants, blacks, Mexican-Americans, or whatever else.


I agree that this is what she's saying, and I take issue with it and your defense. The assumption seems to be that living in "a sort of middle-class or upper-class bubble" is a sort of non-experience, or a dull experience, while being a member of a racial minority, particularly a poor one, gives you access to an "interesting, challenging, complex, formative experience." No doubt that the latter is a complex, challenging and interesting experience. But being a wealthy white person is a formative experience of a sort too, and it comes with its own challenges, complexities, and points of interests, all of which may be just as inaccessible to a poor Latina as the experiences obtained growing up a Latina in the Bronx weren't accessible to the young John Roberts. Why should the one experience lead you to better conclusions than the other?
5.28.2009 2:18am
Asher (mail):
And note too that she doesn't say, as some wish she did, that a Court with one wise Latina on it will jointly make more informed decisions than a Court with nine wise white men, or that conversely a Court with a few white men would be preferable to an all-Latina Court. She says that the individual wise Latina will reach better conclusions than the individual white male. From which it seems to follow that an all-Latina Court would make, if not the best Court of all, at least a better Court than any Court that includes white men. It's a very odd limb for her to have put herself out on.
5.28.2009 2:24am
Arnostocles:
Ilya,


I still believe that the speech shows that Sotomayor thinks that judges can often legitimately base decisions in part on their racial or ethnic backgrounds.



it seems that Sotomayor believes that judges not only take account of their racial background in making decisions, but are often justified in doing so.



Sotomayor, by contrast, argued that a sense of racial or ethnic identification is often a legitimate factor in judicial decisionmaking.


"She's always going to involve race in her decisions, because she's all racial and all that! But in order to appear like I'm not calling her a racist, I'm going to also add that I don't think she's a racist."
5.28.2009 2:26am
miss p:
Asher, I think the point is that we already benefit from the experiences of wealthy white men who, after all, dominate our courts; judges with other life experiences contribute to the collective wisdom of the judiciary. Moreover, there's something to be said about the benefit of an outsider's perspective. See, e.g., de Tocqueville.
5.28.2009 2:27am
catchy:
it's not the one that Sotomayor made.

Sotomayor made many claims in that speech one of which I think I glossed accurately. In support:


I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. ...

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.


Another gloss: You sort the good from the bad ways in which ethnic/gender-informed background experiences may influence rulings. The good ways contribute heterogeneity to the total set of background experiences drawn on by the judiciary.
5.28.2009 2:27am
Suzy (mail):

Why should the one experience lead you to better conclusions than the other?


Asher, I agree with your observation about different kinds of experience being equally informative in their ways. However, I don't think she is saying that one is inherently better than the other. Rather, in the context of claims about discrimination, one of them might provide a perspective that has often been lacking. And a discussion of the impacts of women and minority judges on discrimination is indeed the specific context of this statement, as is apparent from the immediately surrounding statements, the speech as a whole, and the context of the O'Connor quote to which the claim responds.
5.28.2009 2:58am
Steve:
Somehow the phrase "I would hope" has been transformed into the most emphatic declaration of all time.
5.28.2009 3:01am
Anynonyno:
BGates: Which influenced these reasonable general ideas more, "Boston Legal" or "The Daily Show"?

Talking with friends and reading books and blogs. I'm an educated person, not your silly stereotype of a non-Christian.

Asher: I'm glad we agree about what Sotomayor was saying, and I think it's worthwhile to debate whether it's defensible.

Can you describe anything about the experience of growing up white, male, and rich, that is (1) likely to improve a judge's decisionmaking and (2) inaccessible to someone who grew up poor, female, and Hispanic (but got an excellent university education)?
5.28.2009 3:15am
A. Zarkov (mail):
What does this "richness" in the life of a randomly selected Latina consist of? Seeing her children join gangs? Being a single mother? Dropping out of school early? I'm assuming that Sotomayor is not talking about her own life, which was rich, but she's exceptional. Of course it's common among humans to act tribal and that's exactly what's she's doing. But we can all get tribal if we want to.
5.28.2009 3:40am
Anynonyno:
Seeing my children join gangs (or struggling to prevent this), being a single mother, and dropping out of school early are all intense, complex experiences that are difficult for me to really vividly and accurately imagine. I think someone who'd been through those experiences, or who'd grown up around people who were going through such things, might have something valuable to bring to the task of judging -- particularly since the justice system very often acts upon people whose lives involve such difficult experiences.

Again I have to ask, what is there in the life of the typical privileged white male that is of equal value in shaping a judge's decisionmaking, and that is not accessible to a well-educated poor Latina?
5.28.2009 3:58am
JakeCollins:
Asher, Zarkov,
The idea that racial minorities have a richer understanding of race in America is not ridiculous. That was the whole "double consciousness" thesis of Dubois. Whites don't have to think very much about being white. But blacks need to think about their race and about how whites perceive race, or else they'll eventually find themselves in a world of hurt.
Likewise for those growing up poor or a woman. If a woman ignores her womanhood when going into a dark parking garage, she's more likely to be raped. But that's not something I have to worry very much about.
This phenomenon is neither deterministic nor monolithic. I'm pretty sure neither Sotomayor nor myself are arguing that privileged white males are helpless dolts incapable of empathy. And there are plenty of oblivious Latinas out there.
5.28.2009 4:09am
A. Zarkov (mail):
"The idea that racial minorities have a richer understanding of race in America is not ridiculous. That was the whole "double consciousness" thesis of Dubois. Whites don't have to think very much about being white."

Perhaps not the whites who lived in Scarsdale, but I can assure you that the whites who lived in the Bronx at the time Sotomayor was growing were as conscious of race as anyone. They had to be because the blacks and Puerto Ricans were robbing and beating them up. When the Bronx went from a lower middle class Jewish and Italian borough to a predominantly Puerto Rican one everything changed for the worse, and it had nothing to do with poverty.
5.28.2009 4:32am
Ricardo (mail):
Zarkov,

What does this "richness" in the life of a randomly selected Latina consist of? ...Of course it's common among humans to act tribal and that's exactly what's she's doing. But we can all get tribal if we want to.

Of course, she didn't talk about the richness of the experiences of a "randomly selected Latina" -- she spoke of the richness of the experiences of a "wise Latina woman." Wise people tend to have richer experiences in their lives than foolish people, wouldn't you agree?

I'm not sure what you otherwise object to. From reading some of your comments, you seem to reject the Stephen Colbert I-don't-see-race view of the world and trumpet statistics on IQ differences and crime rates among different races. Given that you accept different races have different experiences, why wouldn't some of these experiences be useful in judging, say, discrimination cases?
5.28.2009 4:47am
A. Zarkov (mail):
Ricardo:

"... she spoke of the richness of the experiences of a "wise Latina woman." Wise people tend to have richer experiences in their lives than foolish people, wouldn't you agree?"

It's not the "wise" part that's the problem. It's the "wise Latina" versus wise everyone else. I don't see why being a Latina necessarily makes one wiser or capable of making better decisions than anyone else. In fact having personally experienced the Bronx Puerto Rican community about the time she grew up, I can assure you that there was little "enriching" about that place.

Hollywood makes movies like Fort Apache the Bronx, not Fort Apache Bronxville.
5.28.2009 5:26am
JakeCollins:
For a man who dislikes identity politics, Zarkov seems to be indulging pretty freely.
Those growing up in integrated neighborhoods generally have a richer understanding of race, whether they be Jewish or PR. Everyone living in the Bronx was at risk of street crime, so there is probably something valuable in the "urban" experience as well. But if the lessons that whites in the Bronx learned was "be wary of Puerto Ricans," then I'll still stick with the Latina wisdom.
5.28.2009 5:33am
David M. Nieporent (www):
Seeing my children join gangs (or struggling to prevent this), being a single mother, and dropping out of school early are all intense, complex experiences that are difficult for me to really vividly and accurately imagine. I think someone who'd been through those experiences, or who'd grown up around people who were going through such things, might have something valuable to bring to the task of judging -- particularly since the justice system very often acts upon people whose lives involve such difficult experiences.
I can see how someone who'd been through those experiences, or who'd grown up around people who were going through such things, might have something valuable to bring to the task of legislating, or enforcing the laws. But judging?
5.28.2009 6:32am
wolfefan (mail):
I appreciate the distinction David M Nieporent draws between legislating and judging. But I think miss p has a point that no one has really addressed, and that Ilya (intentionally?) avoided. Alito _said explicitly_ that he takes his background into account as a judge, much more explicitly than I think Sotomayor has. Why is this not putting his thumb on the scales of justice, as some have accused SS of doing?

Indeed, I don't think it can be otherwise for any judge or any human - our background informs who we are and how we view the world. Better to recognize it and allow for it rather than to pretend to be an automaton, able to determine the absolute correct legal answer to any question through a rigorous application of the law with no reference (either conscious or unconscious) to who we are or have been.
5.28.2009 6:59am
Fred Beloit (mail):
"Some of my critics, including Cross, argue that this passage merely means that a Latina judge will, on average, do better than white males in deciding discrimination cases (perhaps because of her greater personal experience with discrimination)."

But surely the opposite is the case. Such judges should consider recusing themselves in discrimination cases, they would not be impartial.
5.28.2009 7:21am
Winthrop:
I would hope that wise Western European men would more often than not reach a better conclusion than non-anglo saxon women, or non-anglo-saxon law professors. (Understanding, ofcourse, that wisdom is in the eye of the beholder.)

But maybe that's because I am one. Hope springs eternal.
5.28.2009 7:44am
studentactivism.net (www):
"Some of my critics, including Cross, argue that this passage merely means that a Latina judge will, on average, do better than white males in deciding discrimination cases (perhaps because of her greater personal experience with discrimination)."

But surely the opposite is the case. Such judges should consider recusing themselves in discrimination cases, they would not be impartial.


And here we are back at the myth of the raceless, genderless white man -- the idea that a woman of color who has experienced discrimination has a personal stake in discrimination cases, but a white man who has not, does not.

Kind of proves Sotomayor's point, actually.
5.28.2009 8:07am
Guest7:
Ilya,

When discussing Sotomayor's comment in the context of sex discrimination cases I have seen several people point to the paper "Untangling the Causal Effects of Sex on Judging" by Boyd, Epstein, and Martin (Google-able if you want). The survey in that paper suggested that male and female judges did not reach different conclusions (different in a statistically significant sense, and you can read the paper for methodology used and case types considered) except in cases of sex discrimination. In sex discrimination cases not only were women more likely to support the discrimination claim, but on a (gender) mixed panel of judges men were more likely to support a discrimination claim.

In other words, not only is there a discrepancy between male and female judges in this one area, but it is the male judges who seem wishy-washy (since their opinions change based on who surrounds them). Given the discrepancy it can only be the case that either the male judge only panels are right in their (statistically) biased judgments or the mixed/female only panels are right in their (statistically) biased judgments. Since the men are the irregular factor here, this study would tend to support Sotomayor's statement interpreted strictly along gender lines. Women appear to have a consistent judicial approach to sex discrimination cases that men do not.

So if men and women aren't that different except in this one area of law where women seem to judge more consistently, that would tend to favor a female candidate.

And I fully admit that my overstrong claim here is driven by the Court's recent ruling concerning school principals strip searching 13 year old girls and the fact that I have a niece. We all have the cases that make us angry.
5.28.2009 8:23am
jukeboxgrad (mail):
wolfefan:

I think miss p has a point that no one has really addressed, and that Ilya (intentionally?) avoided. Alito _said explicitly_ that he takes his background into account as a judge, much more explicitly than I think Sotomayor has. Why is this not putting his thumb on the scales of justice, as some have accused SS of doing?


I want to second you seconding miss p, who made a key point, which you have summarized, and which indeed has not been addressed, by anyone. And here she demonstrated that Prof. Somin seems to be in denial about what Alito actually said.

Somin has not posted in this thread since then. So maybe we have to wait for him to wake up.

But I think the actual answer has already been provided by Psalm91:

Alito is a conservative Republican guy. That's why his ethnic identification and empathy is admirable.


And speaking of empathy, it should be noted that Bush I praised Thomas' empathy. And psalm91 has explained why that was OK.

======================
jay:

Of course, the Alito quote works both ways--if the liberals invoking it now think it's the same thought being expressed by Sotomayor, why didn't it make them support Alito at the time?


For a bunch of reasons, but here's one: I can be a fan of empathy while also finding Alito's statement about empathy to be unconvincing and insincere, because of other things I know about him.

And it's also possible that some liberals were indeed influenced by his statement, and felt some support for him as a result. So it's good not to oversimplify too much.
5.28.2009 8:44am
jukeboxgrad (mail):
anynonyno:

what is there in the life of the typical privileged white male that is of equal value in shaping a judge's decisionmaking, and that is not accessible to a well-educated poor Latina?


There are a bunch of important things that are learned "in the life of the typical privileged white male," but they became "accessible to a well-educated poor Latina" upon the publication of this book.

And note the name of the first author, who is apparently a distant cousin.
5.28.2009 9:03am
JakeCollins:
Between Zarkov's worries that Sotomayor might be a street punk in disguise and Fred Boilot's claims that women and minorities shouldn't be allowed to judge anti-discrimination cases... It kind of puts the lie to the old canard about our "color-blind society."
And it the same people who preach high-mindedly about "color-blindness" who will shift into race-baiting mode at the earliest opportunity.
If this is how it is in 2009, it only increases my admiration for this incredibly successful Latina growing up in the '60s and '70s.
5.28.2009 9:06am
gerbilsbite:
"BASING" =/= "WEIGHING"

I think she's saying not that she'd base decisions on background, but that background will often inform the balancing or weighing of various factors. For example, as noted in a subsequent post, her experience as a trial judge (background) will likely impact how she views cases involving courtroom procedure, and will likely cause her to view those cases differently than her colleagues who lack that experience.

Sandra Day O'Connor saw cases not just as a woman, but also as a former elected official--that gave her an edge in cases having to do with election law or campaign finance (with one very obvious blemish on that record...). Does that mean she was somehow violating her obligations as a judge, or does it mean that she was better prepared to handle those obligations?
5.28.2009 9:06am
Fred Beloit (mail):
This by studentactivism.net
"And here we are back at the myth of the raceless, genderless white man -- the idea that a woman of color who has experienced discrimination has a personal stake in discrimination cases, but a white man who has not, does not.

Kind of proves Sotomayor's point, actually."

Well, ...activism, I certainly would not be surprised, based on the name of your site, by your view. But I suppose you are trying to say that a judge, who three weeks ago had found his wife brutally murdered, would make the best judge for a case involving the murder of a wife.

Or that a Madoff victim would make the best judge in the Madoff case?

Why do you have such an opinion?
5.28.2009 9:24am
areader (mail):
I think it's fairly unlikely that Sotomayor thought that line through to anywhere near the extent that it's being parsed on the Internet. Judge the woman by her record, not by one ill-advised (and it was ill-advised if only because it's so easily misinterpretable) comment in one speech. Is there anything in her record that backs up the ideas you think this line puts forth? If not, consider that maybe she was trying to say what others are suggesting, and, in fact, what the context suggests, and that it came out wrong.
5.28.2009 9:32am
Fred Beloit (mail):
So, let me see if I understand the legal logic here as presented by ...activist.net and some others:

(1) The best judges for discrimination cases are from the groups being discriminated against.
(2) Sotomayor was one of the judges judging the merits of the Ricci appeal.
(3) Ergo, she was not one of the best selections for this case since she is not, and Ricci is, white.

Does that about sum it up? Or is this just my race-baiting, Collins?
5.28.2009 9:45am
Fred Beloit (mail):
I want to add, by the way, that my view is judges should not be assigned on the basis of race or gender or sexual preferences. To concede that the great goals of objectivity, of fairness, of impartiality must be forsaken because they are hard to achieve is to mock and undermine the law.
5.28.2009 9:55am
Suzy (mail):

To concede that the great goals of objectivity, of fairness, of impartiality must be forsaken because they are hard to achieve is to mock and undermine the law.


Where does she do or say anything like this? Your view is essentially the less-watered-down version of Prof. Somin's view, and for both one has to ask: what is the evidence? She repeatedly states in this speech that we should strive to achieve those ideals, even though they are difficult, and even though we cannot achieve them perfectly.

The question is whether you can achieve those ideals by ignoring your background, or whether it might be helpful to reflect on your background, continually questioning your assumptions and using your experiences to gain insight only when it is appropriate. Otherwise, how do we know when we're being silently prejudiced by our experiences? Consciously acknowledging their impact and trying to take the positive and mitigate the negative seems like a much more sensible strategy.

Same with your hypotheticals and your suggestion that minorities shouldn't judge discrimination cases. If someone is so biased by years of suffering from discrimination that they cannot ever rule against someone who brings such a claim, then they shouldn't be judging it. However, we have no reason to think this is more true of any particular group of people, unless you feel like making the crazy parallel accusation that white people would always sympathize with those accused of racism. Obviously it's false.
5.28.2009 10:23am
Justin (mail):
I continue to believe that Ilya's failure to give charitable interpretations to people's statements is a troubling characteristic of a law professor or any other professional that relies heavily on linguistics.
5.28.2009 10:26am
Owen Hutchins (mail):
Going back to an initial assumption, why does anyone think that a "wise woman" and a "wise man" would always rule the same way? We often don't even have two "wise men" ruling the same way. Ask yourself why, and then ask if this is the same.
5.28.2009 10:30am
Guest 8:
The issue isn't about empathy, or whether personal experiences may play a role in a decision or a person's makeup. Though we can quibble about whether a person should check those impulses and how much they should be checked, let's put that aside, because if her statement had been that limited, there would be no debate.

This issue is solely and completely about her claim that she can make a "better" decision because of her gender and ethnicity. Dance around it all you want, that's what she said. Try to "context" it away and you can't. And the premise for her conclusion is that a white person doesn't have the same types of experiences. The problem with that statement that some of her apologists don't want to own up to is that she's assuming, based solely on the race and gender of another person, that her life experiences have been richer and more meaningful. And that's nonsense, unless of course you believe that one's entire identity consists of their race and gender. Assuming such a monolithic state doesn't exactly promote the idea of diversity. And there is so much overlap between persons of every race and gender in terms of life experiences that we should never assume anything about a person based on their race or gender, good or bad. And she did, unquestionably. Does that mean she shouldn't be confirmed? Not necessarily, but it certainly demands more questions and a better explanation that the ones being given here. She needs to stop rationalizing and simply reject the notion that we should make assumptions about others because of their race and/or gender. And she did make that assumption. Only one defender here (Catchy) seems to own up to that fact, but I find his defense pretty awful since he simply goes further in rationalizing why it's okay to make assumptions not just about person's life experiences but about whether those life experiences are sufficient to give them the wisdom to decide cases properly. I happen to think life experiences are very important. But I have no idea based merely on the color of one's skin or their gender whether they have had a "rich" life. And neither do you, neither does our nominee. But she pretended to in the statement she made, and that is why it should not have been said.
5.28.2009 10:34am
Fred Beloit (mail):
Suzy, look, your quote is of what I say not what Sotomayor said. I never said that Sotomayor said such a thing. If she said that fine, then she and I agree. My remarks were directed at studentactivist.net and a few others.

"Same with your hypotheticals and your suggestion that minorities shouldn't judge discrimination cases."

No, I didn't make that suggestion, what I said is this:
"I want to add, by the way, that my view is judges should not be assigned on the basis of race or gender or sexual preferences."
5.28.2009 10:41am
Ilya Somin:
Moreover, he didn't just say that those cases that remind him of his life or the lives of his loved ones made him "think of his relatives" and "think of children" in some sentimental way. He said explicitly, "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

Alito says here that he would "take into account" the experience of people he knows who "suffered discrimination." That is very different from relying on his own ethnicity or gender as a guide to decisions. Note that some of those family members who may have suffered gender discrimination are probably of a different gender from him (i.e. - they are women). I do think that this part of Alito's statement may overvalue the role of personal experience in guiding a judge's decisions (depending on how much he thinks it should be "taken into account"). But it is different from claiming that judges should base decisions in part on their personal racial or ethnic identity.
5.28.2009 10:43am
Fred Beloit (mail):
Justin, I think you mean "semantics" not "Linguistics", which is a very different horse:

http://en.wikipedia.org/wiki/Linguistics
5.28.2009 10:51am
A. Zarkov (mail):
"Between Zarkov's worries that Sotomayor might be a street punk in disguise and Fred Boilot's claims that women and minorities shouldn't be allowed to judge anti-discrimination cases..."

You need to read more carefully because that's not remotely like anything I wrote. Sotomayor became successful despite having grown up the Bronx Puerto Rican ghetto. There is nothing particularly enriching about that experience. As far as I can see the survival skills one learns from such an experience, while useful, would not make one a better judge. It might make one a better social worker or even a legislator, but not a judge.

From what I've heard, Sotomayor has a temperament more appropriate for the legislative branch or the executive branch. A judge decides cases not causes.
5.28.2009 11:02am
Carl the EconGuy (mail):
Here's the oath of office of a Supreme Court Justice:

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

If any judge thinks that his/her ethnic, religious, geographic, national, political or any other affiliations are valid reasons for making *conscious* judicial decisions, that would amount to impeachable perjury.

Of course, the problem lies in distinguishing unconscious influences from conscious ones. But the oath of office is clear: a justice must strive to avoid personal bias, of any kind, in making judicial decisions.

If that's the case, what do Sotomayor's words mean except a deliberate intent to violate the oath of office immediately and every day on the job? I think she has disqualified herself completely, and has already uttered impeachable words.
5.28.2009 11:03am
Tugh (mail):
Ilya said:

<blockquote>
Alito says here that he would "take into account" the experience of people he knows who "suffered discrimination." That is very different from relying on his own ethnicity or gender as a guide to decisions. Note that some of those family members who may have suffered gender discrimination are probably of a different gender from him (i.e. - they are women). I do think that this part of Alito's statement may overvalue the role of personal experience in guiding a judge's decisions (depending on how much he thinks it should be "taken into account"). But it is different from claiming that judges should base decisions in part on their personal racial or ethnic identity.
</blockquote>

Ilya, I hope you realize how incredibly weak your argument is. You are splitting hairs by claiming that there is a difference between taking your own experience into account and the experience of your family members. The point is that because of who we are as people, we can't simply abstract from the real world and pretend that our reasoning is not in any way shaped by our lives.
5.28.2009 11:04am
Justin (mail):
I meant Linguistics, upon which semantics is part of linguistics, but not all of it, Fred. Stop trying to be a know-it-all, if you are going to correct someone, make sure you know what you are talking about. Syntax, which is part of grammar, is also part of the study of law.
5.28.2009 11:10am
ShelbyC:
It's funny how people want so badly to believe that she didn't say what she said. Her words are perfectly clear: She believes that people of her ethnic background, because of their experience, can decide at least some cases "better" than folks with different backgrounds.
5.28.2009 11:12am
Ilya Somin:
Ilya, I hope you realize how incredibly weak your argument is. You are splitting hairs by claiming that there is a difference between taking your own experience into account and the experience of your family members.

No, I am making a distinction between taking account of "experience" (both personal and that of others, including family members) and taking account of one's personal racial or gender identity.
5.28.2009 11:12am
Tugh (mail):
Ilya, you said:

No, I am making a distinction between taking account of "experience" (both personal and that of others, including family members) and taking account of one's personal racial or gender identity.


Thank you for responding, but, again, it is splitting the hairs. Your "experience" is shaped by your identity, whether gender, national, ethnic, or otherwise. In fact, Alito was talking about exactly the discrimination based on one's identity (ethnic, religion, and gender).
5.28.2009 11:18am
Steve:
No, I am making a distinction between taking account of "experience" (both personal and that of others, including family members) and taking account of one's personal racial or gender identity.

If only Sotomayor had referred to something like "the richness of her experiences" instead of just citing her racial or gender identity.
5.28.2009 11:19am
BZ (mail):
Just F.Y.I.: an Alito decision: Pemberthy v. Beyer, 19 F.3d 857, 862, 868-69 (3d Cir. 1994)(Alito, J.)("Here, the State concedes that Spanish-speaking jurors were excluded, but not on the basis of ethnicity. Thus, if a juror of Spanish ancestry who did not speak Spanish was on the panel, he would not have been excused. However, Spanish-speaking jurors without Spanish ancestry (such as the Spanish teacher) were excluded."), ("an equal protection violation cannot be established simply by showing that Latinos are disproportionately affected by peremptory challenges of jurors who can speak and understand Spanish. On this point, both the plurality and concurring opinions in Hernandez [v. New York, 500 U.S. 352 (1991)] are in agreement.").

In Pemberthy, New Jersey contended that prosecutors struck prospective jurors on the basis of their language ability, not on the basis of their ethnicity, but the District Court held that strikes on language grounds were racial. 19 F.3d at 859, 863 ("The court held, as we understand its opinion, that striking Latino jurors simply because they can speak Spanish is tantamount to striking them based on race."). The District Court argued that "the one characteristic that links and, in essence, defines [the Latino] community/'race' and exposes it to irrational discrimination is their status as native Spanish speakers." Id., citations omitted. "The court then reasoned: 'Thus, the decision to strike all Spanish-speaking persons -- especially native speakers who speak it 'perfectly' -- is, by definition, a decision to strike all Latino jurors. In this sense, the prosecutor in this case . . . offered a race-based reason for excluding jurors." Id., citations omitted. After its own analysis, as shown above, the Third Circuit disagreed with these characterizations by the lower court.
Although the District Court said that this was a "race-based reason", the Third Circuit treated it as a national origin claim. 19 F.3d at 865. The Third Circuit first recognized that the New Jersey courts had rejected the equation of language and national origin. Id. The Third Circuit expressly rejected the equation of language and national origin. 19 F.3d at 869 ("no simple equation can be drawn between ethnicity and language.").
The Third Circuit also held that the standard for review of language-based classifications is "rational basis," not the "strict" or intermediate scrutiny used for race or national origin. 19 F.3d at 870 ("Classifications based on the ability to speak or understand a foreign language do not meet the requirements for either 'strict' or 'heightened' scrutiny."). Thus, the Third Circuit does not equate language and national origin.
The same is true in other circuits. A leading case is Frontera v. Sindell, 522 F.2d 1215 (6th Cir. 1975), a class-action challenge in which non-English-speaking applicants for civil service positions challenged as discriminatory the giving of civil service examinations only in English.

Note, btw, this is not an issue on which white male Alito has a different view than, say, a MALDEF Man of the Year, such as Judge Ferdinand F. Fernandez. Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995, en banc), 954 (Fernandez, dissenting). And a white male may have a different view, in this case favoring the minority group member, than an immigrant white male, and may express that view in harsh, personal terms. 69 F.3d at 952, 953 (Reinhardt, specially concurring with his own majority opinion)("The end result of Judge Kozinski's legal approach would be to punish people who are not as fortunate or as well educated as he-people who are neither able to write for nor read the Wall Street Journal, and indeed would have little cause to do either."), 960 (Kozinski, dissenting).

Not sure how all this plays out in the terms of this debate, but clearly differing life experiences do not guarantee a particular point of view. And having empathy doesn't preclude a talented judge from taking a view contrary to personal feelings.
5.28.2009 11:33am
ShelbyC:

If only Sotomayor had referred to something like "the richness of her experiences" instead of just citing her racial or gender identity


Yeah. It's funny how people react differently when I say, "I can make good decisions because of the richness of my experience" than when I say, "I can make good decisions because I'm white". Go figure.
5.28.2009 11:38am
A.C.:
Whatever the merits of Sotomayor's speech, I think we have learned something. We all already knew why it was a bad idea to go around saying that you're purer than everybody else. Everyone else will get on your case for that, and rightly so.

But it would seem that claiming to be wiser than everybody else is waving the same red flag. As is claiming that your experiences are richer (or in some other cases more "authentic") than those of other people.

Nothing good comes of using these forms of expression. They just wind people up -- people like you get too excited, and people not like you get too angry.

It's better to say what you mean. Or perhaps avoid this kind of presentation entirely and concentrate on the job.
5.28.2009 11:41am
Steve:
t's funny how people react differently when I say, "I can make good decisions because of the richness of my experience" than when I say, "I can make good decisions because I'm white".

What's funny is how people choose to emphasize the latter interpretation rather than the former so they can participate in an embarrassing freak-out. Oh no, she said Latinas are better judges because of their race and gender identity! Let's just read that part about "experiences" right out of the quote so we can argue that it's much, much different from what Alito said!
5.28.2009 11:42am
Fred Beloit (mail):
I will try to stop trying to be a know-it-all, Justin, but it is an uphill struggle. Perhaps you can help me learn a little more though. Is Linguistics a part of most law school curricula these days? If so, how many semester hours, very roughly?
5.28.2009 11:45am
ShelbyC:

people choose to emphasize the latter interpretation rather than the former so they can participate in an embarrassing freak-out.


Well, based on the words she used, there's a lot fewer gymnastics involved in the latter interpretation. And I'm too fat for gymnastics.
5.28.2009 11:49am
Ilya Somin:
Ilya, you said:


No, I am making a distinction between taking account of "experience" (both personal and that of others, including family members) and taking account of one's personal racial or gender identity.



Thank you for responding, but, again, it is splitting the hairs. Your "experience" is shaped by your identity, whether gender, national, ethnic, or otherwise. In fact, Alito was talking about exactly the discrimination based on one's identity (ethnic, religion, and gender).


Not necessarily. Having a particular identity doesn't guarantee that you will have a particular experience. Not everyone who shares a given identity has experienced, e.g., discrimination on the basis of it. Sotomayor did not say that "a person who has experienced discrimination" can better judge discrimination cases than one who hasn't. That would be a questionable statement, but one that is far less objectionable than what she actually said (that a "wise Latina woman" can better judge various cases simply because of "experiences" that apparently inhere in all people who share that identity).
5.28.2009 11:53am
Festooned with Christmas tree ornaments:
Guest 8 has it right. I'm not concerned about whether she will use her life experience in making decisions; I'm concerned about the statement itself, which, unless it was a joke, was racist and sexist.
5.28.2009 11:54am
PubliusFL:
Constitutional Crisis: "It's obvious" is not an argument. I'm just reading the plain meaning of the text. You're the one contriving all kinds of other motivations to ascribe to the judge. It is your burden to show why the text does not mean what it says.

It's obvious from the fact that she was specifically disagreeing with the claim that a wise old man and wise old woman would reach the same conclusion. She says "I am not so sure I agree with that statement," and goes on to explain why. Wisdom is clearly not the decisive condition, it's what's being held equal. Ethnicity and gender are the variables that result in Sotomayor's optimism that the Latina will make generally better decisions. If her point was that the Latina is wise but the white man is not, it would do nothing to refute the statement she is challenging.
5.28.2009 12:00pm
ShelbyC:

I continue to believe that Ilya's failure to give charitable interpretations to people's statements is a troubling characteristic of a law professor or any other professional that relies heavily on linguistics.


Can't agree with you more, Justin. When I was in school I was often troubled by my prof's inability to interpret my statements more charitably.
5.28.2009 12:06pm
Arnostocles:

She believes that people of her ethnic background, because of their experience, can decide at least some cases "better" than folks with different backgrounds.


No she didn't. "hope" does not equal "believe."

I hope I win the Powerball on Saturday, but I don't believe I will.

I hope people of my race will make good decisions, but that doesn't mean I believe they will.

I said:


Perhaps she was making the simpler point that a Latina judge could be wise.


BGates responded:

During a speech in front of an audience of Hispanics in the legal field? Did you think that audience had doubts on the subject?


Are you saying that speakers don't preach to the choir? I think that's the clear description of what she was doing - making the audience feel good about themselves and feel good about Sotomayor, as one of them, being on the bench. Have you ever heard a Marcus Garvey speech? Or a Malcolm X speech? Or a Martin Luther King speech?

Moreover, her speech was intended to reach further than the "Hispanic" audience in front of her. You suggest that they were the only intended listeners, but that's clearly not true [the speech was slated for publication, right?].

I think it's both true that she was expounding on how a Latina judge could be wise [at least on certain topics], and that many people still doubt that a Latina judge could be wise. Just look at all the comments here expressing such doubts!
5.28.2009 12:08pm
Tugh (mail):
Ilya said:


Not necessarily. Having a particular identity doesn't guarantee that you will have a particular experience. Not everyone who shares a given identity has experienced, e.g., discrimination on the basis of it. Sotomayor did not say that "a person who has experienced discrimination" can better judge discrimination cases than one who hasn't. That would be a questionable statement, but one that is far less objectionable than what she actually said (that a "wise Latina woman" can better judge various cases simply because of "experiences" that apparently inhere in all people who share that identity).


Ilya, Sotomayor never said that experiences of "a wise Latina woman" inhere in all people who share that identity.
There is nothing different here from Alito's statement that in deciding cases, he takes into account the experiences of his family members that suffered from discrimination.
5.28.2009 12:10pm
ShelbyC:

There is nothing different here from Alito's statement that in deciding cases


Except for the fact that she said that she hopes members of here race would make better decisions than members of another race, and Alito didn't.
5.28.2009 12:12pm
Blue:
What does "better" mean, BTW?

1) Better able to determine the true answer to a legal question or;
2) Better able to ensure that members of a favored ethnic group receive protection under the laws?
5.28.2009 12:13pm
Arnostocles:

No, I am making a distinction between taking account of "experience" (both personal and that of others, including family members) and taking account of one's personal racial or gender identity.


But Ilya, Sotomayor was talking precisely about "experience." Not "identity," but the experiences that may have resulting from living a life with that identity.

Here's the quote:


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.


This is clearly about taking account of "experience." She did not say "Latina judges will take into account their racial identity and thus make better decisions than white judges." She clearly said that they would take account of their experience.
5.28.2009 12:14pm
Tugh (mail):

Except for the fact that she said that she hopes members of here race would make better decisions than members of another race, and Alito didn't.



First, "latina" is not a race, it's ethnicity. Second, she was talking about the experiences of a wise Latina woman. You choose to concentrate on "Latina" because you want to portray the statement in the worst possible light.
5.28.2009 12:17pm
ShelbyC:

This is clearly about taking account of "experience."


Yes. She said Latina judges have experience that will allow them to make better decisions than white judges.
5.28.2009 12:18pm
Tugh (mail):

Yes. She said Latina judges have experience that will allow them to make better decisions than white judges.


No, she did not. It's just a false statement.
5.28.2009 12:20pm
Justin (mail):
Another point, professor,

You're saying you are willing to give her the chance to elaborate on her view in front of Congress (which is good - good for you!). Do you really believe when given that chance she's going to interpret her own words the way you are interpreting them? If not, then why are you continuing this fight? Why not table the fight until the unlikely event that she confirms your interpretation, since she certainly is going to be asked about this quote by ONE of the Republican Senators during her confirmation hearings.
5.28.2009 12:22pm
Arnostocles:
Thanks Ilya for responding so much to comments! I appreciate it, and I'm sure others do too.


She said Latina judges have experience that will allow them to make better decisions than white judges.


No she didn't. That's your interpretation of what she said - paraphrased in the most uncharitable way.
5.28.2009 12:23pm
ShelbyC:

First, "latina" is not a race, it's ethnicity.

Fine.


she was talking about the experiences of a wise Latina woman.


And that they enabled her and other Latina women to make better decisions than white men with different experiences, right?
5.28.2009 12:23pm
Justin (mail):
I think a lot of you are missing even the internal context of her quote. Sotomayor says not that a Latina will have better experience than a white person, but that she "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.

Presuambly, she would also say that a corporate attorney's experience would help someone make decision than someone who hasn't lived that life, that an organizer's experience would help someone make decision than someone who hasn't lived that life, etc. And although the phrasing might be imperfect, the context confirms that approach.
5.28.2009 12:25pm
Justin (mail):
Shelby, no, not "with different experiences."
5.28.2009 12:27pm
ShelbyC:

No she didn't. That's your interpretation of what she said - paraphrased in the most uncharitable way.


Well, unfortunately given her words it's impossible to be both charitable and accurate. She said what she said.
5.28.2009 12:29pm
Blue:
Justin, observe the change in language you've used.

Sotomayor talked about "better." In your supposed similar examples you talk about "help."
5.28.2009 12:29pm
ShelbyC:

Shelby, no, not "with different experiences."


Explain. Of course they'd have different experiences. You're not saying that she meant with the same experiences.
5.28.2009 12:30pm
David Welker (www):
Just to nitpick a little at Somin's characterization of Sotomayor, I think it should be pointed out that the following statement is probably not an accurate reflection of what Sotomayor said:


Moreover, in an earlier part of the speech, Sotomayor denies that the goal of transcending one's race in judicial decisionmaking "is possible in all or even in most cases."


Here is where that quote comes from:


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. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.


That one may not be able to transcend their personal sympathies and prejudices "in all or even in most cases" does not imply that one cannot transcend race "in all or even in most cases." Obviously, race is merely one possible source of bias and it is not in any way an applicable factor in many cases.
5.28.2009 12:34pm
Cato The Elder (mail):
Sotomayor's statement is stupid, but I can better explain its stupidity by analogizing to a group I am more familiar with.

African-American academics go about promoting all sorts of factually incorrect statistics about institutionalization within the federal penitentiary system, the promulgation of AIDS within their population, and the pervasiveness of affirmative action preferences at elite universities, because these ideas of victimization are always popular in the group psyche of self-perceived aggrieved minorities. If I capitulate to the notion that "empathy" has some proper role in jurisprudence for the sake of argument, someone please explain how this "richness of experience" would help an African-American Supreme Court justice come to the "proper" conclusion in say, an Equal Protection case arguing that the federal death penalty is unconstitutional because it is applied in a racially discriminatory manner?

The idea that African-Americans understand racial issues or the reality of race better because they are African-American is mostly a crock. The gulf in cultural experiences between a New York City Jew and a Southern Baptist is just as vast as the difference between a Black person and White person in the US. African-American "experience", as a statistical description, will certainly predispose a member to different conclusions, different viewpoints, but who wants to defend the idea that those viewpoints are laudable or well-founded philosophies? Sotomayor may have had a tough childhood, but speaking with authority as a former one, the talented minority student has one of the most pampered paths set before him because all kinds of folk-liberals are willing to prostrate themselves to serve him to salve some sort of fetishistic guilt. Her experience probably includes some people advocating on her behalf and whispering into her ear that she is "deserving", simply based on the fact that she is Latina - does this diversity of experience help her piercing racial farsightedness too?
5.28.2009 12:37pm
Tugh (mail):
Shelby, Sotomayor may hope that the experiences of a "wise Latina woman" may, more often than not, be richer than the experiences of a "white male who hasn't lived that life". But it doesn't exclude at all that "wise white males" may have rich experiences equal to those, or richer than, experiences of a "wise Latina woman." In other words, I don't see why your interpretation where the word "Latina" is the key is more appropriate than the interpretation that "richness of her experiences" (not necessarily due to the fact that she is a Latina)is the key.
5.28.2009 12:38pm
Justin (mail):
Shelby, I explained above. Every type of experience adds to the judge's identity and ability to judge. Her experience with her race is some contributing factor, but she isn't saying that a white person couldn't have different, also useful experiences. She was making a logical comparison to a null set - I guess, she was making the classic mistake of the genderless, raceless white male. But do you think she was saying that a guy like Jack Greenberg, with the wealth of his experiences, would have made a poor judge (on race issues)? No, because Jack Greenberg has had a wealth of experience regarding race issues given his organizing and lawyering.
5.28.2009 12:38pm
catchy:
Ilya has been making a distinction w/out a difference for several days now re: taking into account personal experiences vs. taking into account one's personal racial or gender identity.

of course one's gender and ethnicity typically affect one's personal experiences, so you typically can't separate the two. Certainly Alito did not.

Having a particular identity doesn't guarantee that you will have a particular experience. Not everyone who shares a given identity has experienced, e.g., discrimination on the basis of it.

Who besides you is now saddling Sotomayor with the strong claim that all Latinos or women invariably have the same experiences?

In your post you were careful to attribute a weaker position:

"It is wrong to assume that a judge belonging to a group that is often victimized by a particular type of injustice will be generally superior in deciding cases that address it. "

And indeed a weaker premise is all that's needed to support her conclusion that 'more often than not' a Latina will bring desirable diversity to the table when making a ruling not typically brought by a white male.

The weaker premise is in fact innocuous: diversity of ethnic/gender background is a proxy for diversity of experience.
5.28.2009 12:40pm
ShelbyC:

Presuambly, she would also say that a corporate attorney's experience would help someone make decision than someone who hasn't lived that life, that an organizer's experience would help someone make decision than someone who hasn't lived that life, etc. And although the phrasing might be imperfect, the context confirms that approach.



And if she said that, she'd be making the inane point that a corporate attorney's experience is better that some hypotetical "other experience" but she wouldn't be injecting race, ethnicity, or gender into the subject. But she said a Latina woman, with the richness of her expierence, would make decisions better than a white man, with his piddley little insignifant experience.
5.28.2009 12:42pm
DangerMouse:
Libs should embrace Sotomayor's racism, because racism and sexism is inherent to modern liberalism. Clarence Thomas is repeatedly attacked for not being a "real" black man because he has his own thoughts and ideas. Sarah Palin is not a woman because she's pro-life. All men are rapists, all whites are racists, etc, etc. This crap is routinely shoveled down people's throats in universities across the nation every fricking day.

Sotomayor is just the normal routine liberal racist who thinks that blacks and hispanics should hold certain opinions. Nobody should be surprised by that.
5.28.2009 12:47pm
Justin (mail):
Well, ShelbyC, she wasn't speaking at a conference for Corporate Attorneys regarding Corporate Attorneys and the Judiciary.
5.28.2009 12:48pm
Tugh (mail):
DangerMouse,

Why do you need to cheapen and lower the level of conversation here? If you are incapable of a decent level discourse, can't you find other sites, and leave this one for commenters who respect each other?

Thanks!
5.28.2009 12:50pm
ShelbyC:

Ilya has been making a distinction w/out a difference for several days now re: taking into account personal experiences vs. taking into account one's personal racial or gender identity.


Not just taking them into account. Comparing them favorably to another racial and gender identity. For a variety of reasons, we react differently when someone says, "my personal experience makes me more qualified to do X than him" vs. "the personal experience of people of my race make me more qualified to do X than people of a different race.
5.28.2009 12:52pm
Tugh (mail):
ShelbyC,

Again, Sotomayor never said that the personal experience of people of her race (more accurately, her ethnicity), makes her more qualified to do X than people of a different race. You are seeing what you want to see, rather than objectively evaluating her comment.
5.28.2009 12:55pm
DangerMouse:
Tugh,

I don't think I showed any personal disrespect to anyone in my post, particularly since I didn't mention anyone at all. If you take offense to my opinion that modern liberals are routine racists, that's your problem. Affirmative action is racism in my opinion.
5.28.2009 12:55pm
Tugh (mail):
DangerMouse,

You may not have shown any personal disrespect, but you certainly showed your general disrespect to people with whose position you disagree with. This was evident from your use of the term "libs", and your mischaracterization of liberals as racists. If I say that your position is racist, would you take any offense?


All men are rapists, all whites are racists, etc, etc. This crap is routinely shoveled down people's throats in universities across the nation every fricking day.


This is, using your terminology, crap. If you don't see that the level of discourse on this site is way beyond this, it's disappointing.
5.28.2009 12:59pm
Blue:
That's not true, Tugh. She said a Latina woman would be better.
5.28.2009 12:59pm
ShelbyC:

her race (more accurately, her ethnicity)


Well, she compared the Latina ethincity to the white race.

And that's exactly what she said. You're being confounded by her words.
5.28.2009 1:01pm
Cato The Elder (mail):
So if Sotomayor was just comparing to some convenient null set, a faceless identity, not necessarily white, not necessarily male, and not necessarily having no cultural insights of his own to impart, why does she think that her racial identity the most salient characteristic of life experience that would best inform her jurisprudence? Why is that "Latina" quality, an ill-defined and very political categorization, so intimately tied to the methodology of legal interpretation?

Myself, I would prefer someone with a mathematical background who has garnered some insight from a formative experience of being a slight discriminated-against nerd. Analyzing the constitutionality of the language within the Title VII of the Civil Rights Act in relation to the Ricci case, for example, could certainly be helped with a slight background in some cursory statistics, since a given racially-neutral test taken by White and Black random guessers would still violate the EEOC's "disparate impact" guidelines some n% percentage of the time.
5.28.2009 1:01pm
Christopher Cooke (mail):
I think you are all missing the point of her remarks.

The key phrase is "I would hope." She was expressing an aspiration, not a statement of fact.

One way of interpreting her remarks is:

I would hope that someone who has experienced racial or ethnic discrimination would do a better job of deciding discrimination cases than someone who has not.

Another way is: I would hope that a latina judge would not turn into another Clarence Thomas.

I think Sotomayor's comments are reflective of the view that a judge should not turn her back on her ethnicity or gender when judging, because it may not be possible to do so, anyway, and may be relevant, i.e., something that, to use Alito's words, may be taken "into account". She didn't say it should be the determinative factor. Neither did Alito.

One can argue that judges should strive to be black boxes/computers that neutrally decide all issues without regard to their own or the parties' backgrounds, but it may be more realistic to hope that the judge and parties' backgrounds do not factor very much into a decision. Any trial lawyer will tell you that of course a judge's background/ethnicity matters, especially in a discrimination case.

A white male judge who has lived a privileged life, has never personally experienced discrimination, and who has never represented persons who were discriminated against is less likely, on average, to think discrimination is a problem, and more likely to accept a defendant's non-discrimination explanations, than a judge who either has personally experienced such discrimination, or known people who have. That is why Sandra Day O'Connor's appointment was so huge, and made such an impact on the Supreme Court, and why Obama's election as president is so significant.
5.28.2009 1:01pm
Tugh (mail):
Blue,

No, she didn't. Read what she said. There are many qualifiers there: "I would hope," "more often than not," "wise." She did not say that a Latina woman would be better.

Shelby,

While she may have been inarticulate in comparing ethnicity to race, it is clear to me that she was talking about diversity of experiences. A rich Latina woman born in this country and living an elite lifestyle may have not as rich experience as a poor white male who immigrated from, say, Russia or Italy. I think Sotomayor would agree with this.
5.28.2009 1:04pm
Suzy (mail):
First, what does it actually mean for judges to "base decisions in part on their personal racial or ethnic identity" if not to take account of their own life experiences in trying to understand the circumstances of a case? What else could it possibly mean? This is also something that everyone does, not just members of certain groups.

Second, it is flatly false that Sotomayor said some of the things that Prof. Somin attributes to her. She explicitly, clearly agreed with the claim that "having a particular identity doesn't guarantee that you will have a particular experience." Her words were literally, "No one person, judge or nominee will speak in a female or people of color voice." There is no such voice, no such thing as The Female Perspective. I find it reassuringly sensible that she acknowledges this. It is the exact opposite thesis of an identity politics view.

It is false that, "she actually said (that a "wise Latina woman" can better judge various cases simply because of "experiences" that apparently inhere in all people who share that identity)." No. She denies that all people who share a certain identity will have the same experiences. Did you read the speech? This is really dishonest.
5.28.2009 1:06pm
ShelbyC:
@Christopher Cooke, I think what you're saying boils down to is that you think minorities make better judges that non-minorities.
5.28.2009 1:07pm
DangerMouse:
but you certainly showed your general disrespect to people with whose position you disagree with. This was evident from your use of the term "libs", and your mischaracterization of liberals as racists.

Meh. I'm trying to decide if I should care about this.

If I say that your position is racist, would you take any offense?

Not really, because it happens so fricking often. Libs have been crying wolf on that for years now. Why should I care about the feelings of libs when such language is routinely used to attack conservatives?

I just realized I keep saying "libs." Oops. Oh well. Maybe next time I'll fix it.
5.28.2009 1:08pm
Festooned with Christmas tree ornaments:
Christopher Cooke,


The key phrase is "I would hope."


Is it OK to hope that Latina women would reach better decisions than white guys? "I would hope" instead that Justice O'Connor's statement is correct.
5.28.2009 1:18pm
mattski:
Why should I care about the feelings of libs when such language is routinely used to attack conservatives?

Are you trying to say that even though you see no reason to respect your political opponents, still, it would be wrong to accuse you of disrespect?

Honestly, you're one of the least disciplined commenters here, imo. From your mouth insults flow freely. Maybe man-up and admit it?
5.28.2009 1:19pm
Cato The Elder (mail):
If someone produces a study that claims that African-Americans have a higher rate of criminality than Whites, leftist bulldogs instantly spring up to patiently explain that in reality, it is socio-economic status that is the causal variable, and that race in this instance is a proxy to be abhorred. Indeed, let's pretend that this claim is actually true.

Why is race the preferred instrumental variable now, when it comes to justifying positive theories of the law in the liberal fashion? We went through our national catharsis in the '60s supposedly to expunge the idea that race or ethnic identity was the most salient category to identify oneself by. Why is her use of it any different? Perhaps people of disadvantaged backgrounds truly do have a 'better' "richness of experience" to advantage their legal analysis - why don't we witness the same fierce 'scientific' advocacy against racism in this case?

By God, it's the primary law of politics - her objectively distasteful statements further Democratic ends.
5.28.2009 1:21pm
Suzy (mail):
The argument that Sotomayor's claim is not limited to discrimination issues is a total failure, and I think people are operating under the assumption that it's sound. Let's examine it again point by point:


1. However, it seems unlikely that Sotomayor's claim really is limited to such cases. After all, she made it in explicit response to Justice O'Connor's far more general statement that "a wise old man and wise old woman will reach the same conclusion in deciding cases." If Sotomayor meant to say that O'Connor's argument is correct the vast majority of the time with the exception of discrimination cases, it is strange that she gives no hint of that.

It is not strange, because O'Connor's quote (or the quote started by someone else that she's repeating) is offered specifically in the context of determining what benefit or difference in such matters comes from having women on the bench. I find three instances where she uses this quote, and there may be others. In every case, this is the context. In addition, Sotomayor's comment follows her citation of evidence that women judges really do reach different decisions on discrimination cases, in particular. So when she calls O'Connor's claim into question, this is the specific evidence that supports her argument.


2. Moreover, in an earlier part of the speech, Sotomayor denies that the goal of transcending one's race in judicial decisionmaking "is possible in all or even in most cases." That suggests that she believes her argument to have much broader application than merely to discrimination cases.

These words come directly after she says "I agree with and attempt to work toward" the goal 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." There is no suggestion here that being one sort of person or another or having some kind of experience makes you a better judge, and thus no reason to think that this passage extends her claims about "better" perspective beyond discrimination issues.
5.28.2009 1:22pm
Christopher Cooke (mail):
Shelby, no that is not what I meant. Sorry if you think that.

Each human being is unique. We cannot stereotype broadly by race or ethnicity to assume that a person of one ethnicity or race or gender will behave a certain way. But, part of our problem as a society is the refusal to acknowledge that gender or ethnicity influences who we are, how we interact with others, and whether we "empathize" with others, and why not. The people who study our differences the most are marketing and advertising firms. I think they have created mini-categories of some 166 types of persons, to predict what works with each person in the audience. Trial lawyers and jury consultants do the same thing.
5.28.2009 1:23pm
ShelbyC:

The argument that Sotomayor's claim is not limited to discrimination issues is a total failure



I don't know if it's a total failure, but I'm willing to give her the benifit of the doubt there. But I'm not sure how much better that makes it.
5.28.2009 1:29pm
Snaphappy:
What is wrong with the following aspiration?

I have experienced much difficulty and joy in my life, and I hope that my experiences have made me wise, and I also hope that those experiences and the wisdom they have engendered would lead me to make better decisions as a judge than someone who has not had those experiences.

Now replace "judge" with "parent," "manager," "counsellor," "lawyer," etc. Who would not hope, becoming older, that his or her experiences would lead to better decisions? The statement is an aspiration that validates the speaker's experiences. I find the opposite aspiration much more troubling:

I have experienced much in life, and I hope that those experiences have not affected my ability as a judge/parent/manager/counsellor/lawyer in the slightest, and that someone who has not had my experiences could make equally sound decisions.
5.28.2009 1:37pm
Tony Tutins (mail):
I would hope that a wise ex-Soviet man with the richness of his experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
5.28.2009 1:39pm
tom swift (mail):
My, my. As fine a display of singing, dancing, and sophistry as I've seen in a while, all devoted to the contention that what Sotomayor said was not in fact what she said.

But her statement isn't cloaked in syntax of Miltonian convolution; it's very straightforward. She has asserted the hope (a rhetorical device, meaning that she believes) that she is better qualified to judge due to her ancestry and chromosomes. This is, on the face of it, an absurd statement. And in today's atmosphere it is a despicable statement as well. It is certainly a blatantly sexist statement. It is only a "racist" statement to the extent that "latins" are a race, which they are not. Neither are they an "ethnicity" in the sense that, say, "western European" could be considered an ethnicity. So I don't know what the proper word would be. But it is definitely not the sort of talk I want to hear from a competent judge.
5.28.2009 1:39pm
ShelbyC:
@Snaphappy:

Not troubling:

I have experienced much difficulty and joy in my life, and I hope that my experiences have made me wise, and I also hope that those experiences and the wisdom they have engendered would lead me to make better decisions as a judge than someone who has not had those experiences.


Troubling:

I have experienced much difficulty and joy in my life, and I hope that my experiences have made me wise, and I also hope that those experiences and the wisdom they have engendered would lead me to make better decisions as a judge than a black woman who has not had those experiences.


Get it?
5.28.2009 1:44pm
Putting Two and Two...:
I'm curious. Perhaps someone who has read much of Prof. Somin's work could answer.

Would I have to look very hard to find in his speeches or papers an suggestion that immigrants from the Soviet Union have a perhaps deeper and fuller appreciation of America's freedoms than those born here?

Mind you, I'm not suggesting it would be nationalist or racist to think that.
5.28.2009 1:44pm
Tugh (mail):

She has asserted the hope (a rhetorical device, meaning that she believes) that she is better qualified to judge due to her ancestry and chromosomes. This is, on the face of it, an absurd statement.


Of course, she never made this absurd statement. But feel free to argue with a straw man.
5.28.2009 1:46pm
Tony Tutins (mail):

She has asserted the hope (a rhetorical device, meaning that she believes) that she is better qualified to judge due to her ancestry and chromosomes. This is, on the face of it, an absurd statement.

This statement is absurd only if you believe that white men and Hispanic women have the same life experiences in our country, which is the actual absurd statement here.

Where I live, the well-off people are white males, and the people who clean their houses are Hispanic females. Someone who comes from the house cleaner class and moves into the Circuit judge class has had richer life experiences than the white male who comes from the upper middle class and stays in it.
5.28.2009 1:48pm
Cato The Elder (mail):
@Tugh

He probably comes to a "better" interpretation of unwittingly reverse-racist statements than you do, due to his life experience of routinely being called a racist for neutral assertions by intemperate liberals, and of course also being a member of the classic group of no-culture, discriminated-against white males. You of all people should know how people can inadvertently assert their privilege without even realizing it.
5.28.2009 1:55pm
ShelbyC:
@Tony Tutins, and would those "richer" life experiences make them "better" able to judge some types of cases?
5.28.2009 1:55pm
Snaphappy:
I apologize for posting without having read the whole speech. Judge Sotomayor clearly covered this in the speech itself. I wonder whether Prof. Somin read this:


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. 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.

I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

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.

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. We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.
5.28.2009 2:06pm
Tugh (mail):
Putting Two and Two:

I haven't read much of Prof. Somin's work, but being an immigrant from the Soviet Union myself I would like to think that I have a deeper and fuller appreciation of America's freedoms than many people who are born. It is not nationalist or racist; it is simply a reflection of the fact that freedoms are best known in comparison. Being able to compare first hand America's freedoms with those in the Soviet Union, I believe one better appreciates them.
For example, most Americans take freedom of speech as given; as well as freedom to criticize government without adverse consequences. No person born in the Soviet Union would take these freedoms for granted.
5.28.2009 2:09pm
Putting Two and Two...:
It appears, Tugh, that Prof. Somin would worry that you have racist or nationalist prejudices.

I wouldn't. I think you're right.
5.28.2009 2:13pm
mcwilson1976 (mail):
This is a complete joke. Wow. The fact that this post was even written, not to mention that it received well over a 100 comments, is such a stress to my system that it induced exceptional laughter.

Let's see here. She's drafted HOW MANY freakin' opinions as a judge on the District Court and 2nd Circuit? No, no, no. Let's ignore all of this, all of what actually freakin' matters, for some sentence that she said in 2001, so that we can infuse some accusations of racial discrimination. Oh wait, should we not just read Ricci? No, no, no, this one sells better. Let's dissect it into a three-pronged IRAC discussion that anaylzes whether this constitutes further evidence that she is a closet racist.

Pathetic. Freakin' pathetic.

And if I hear one more time about CJ Roberts' use of baseball as a metaphor for the role of a judge, I am going to vomit. Not only is the "balls and strikes" comment possibly the worst metaphor of all-time, but as any person who watches baseball knows, that while the letter of the law on the "strike zone" may be clear, it changes for every single person at the plate. And I am sure that CJ Roberts didn't seem to suggest that the law should be applied differently to every single person. But what is even more remarkable is that so many people fell for a simple-minded explanation to a complex problem. And for that reason alone, I give CJ Roberts immense credit for coming up with such a street-smart response.

If that is the case, then I hope that everyone will ignore everything else and support her nomination if Judge Sotomayor can reply with a similarly ingenious yet alarmingly innocuous statement... hmmm... any suggestions?
5.28.2009 2:14pm
Tugh (mail):
Putting Two and Two:

Thanks. I am not sure if Professor Somin would worry about this. It seems to me that he is a bit uncomfortable with his position re Sotomayor, as appears from his splitting hairs (in my view) in this thread.
5.28.2009 2:22pm
ShelbyC:
@mcwilson1976
Well, I hope the stress to your system didn't make you pee yourself. Now why don't you go read a post that's worthy of your attention?
5.28.2009 2:22pm
Asher (mail):
Few comments:

One defense of Sotomayor's statement is that naturally a Latina has a more nuanced understanding of race than a white and therefore (one would hope) might make better decisions in discrimination cases. For instance:

The idea that racial minorities have a richer understanding of race in America is not ridiculous. That was the whole "double consciousness" thesis of Dubois. Whites don't have to think very much about being white. But blacks need to think about their race and about how whites perceive race, or else they'll eventually find themselves in a world of hurt.

But this assumes a few things. 1, that richer understandings of race lead to better decisions. 2, that being a racial minority doesn't lead to other things that can cause worse decisions, like, say, a sensitivity to discrimination that's greater than what the law can bear. I don't think it's terribly controversial, for instance, to posit that a Latina or black judge, on average, is surely a little more likely to hold that the Voting Rights Act is constitutional, largely out of a heightened sensitivity to the grievous history of past discrimination that necessitated the VRA, and the vestiges of that past discrimination that still exist. But is that necessarily a good thing? I'd say it can be good and can be bad. It certainly isn't necessarily good to always start from a position of sympathy to claims of discrimination.

Another defense of Sotomayor's statement is something I might call the additive thesis - a wise Latina woman (who came from the Bronx) has Bronx experiences plus upper-class experiences, whereas (some) whites just have upper-class experiences. For instance:

Someone who comes from the house cleaner class and moves into the Circuit judge class has had richer life experiences than the white male who comes from the upper middle class and stays in it.

However, becoming a Circuit judge doesn't give Sotomayor access to those experiences and perspectives that are the sole province of being white,* anymore than my going bankrupt and having to take up house-cleaning would give me a perspective on what it's like to be Hispanic or female.

* For instance, the outrage that some whites feel about preferences in university admissions is simply going to be difficult for a minority to sympathize with, no matter how privileged she is or becomes.
5.28.2009 2:24pm
ShelbyC:

One defense of Sotomayor's statement is that naturally a Latina has a more nuanced understanding of race than a white and therefore (one would hope) might make better decisions in discrimination cases. For instance:


Certainly. But many folks don't want to fess up and admit that that's what she's saying.
5.28.2009 2:33pm
Cato The Elder (mail):
What about Sotomayor's speech suggests that she would look unfavorably upon a racial quota system in public education so all children could putatively benefit from the objectively superior lessons which could be taught by those who have a "richer" life experience solely because of their ethnic background? Obviously, nothing at all. That is but one example of reasons people are worried about her nomination, aside from all the other differences in legal philosophy between liberals, conservatives, and libertarians. If you think my hypothetical is hyperbolic, the unrectified outcome of the Ricci case as is similarly offends my sensibilities. I have little doubt that she regards favorably this injustice that goes against everything most Americans believe the Civil Rights Era to have fought for, which is why the Left wants to pepper over the case in the public interrogation.

As an aside, why is it that whenever I wander over to predominately liberal blogs, I am always assaulted and insulted with epithets like "wingnut" and "racist" - even within his domain, Somin is referred to by partisans as "dishonest" and "pathetic". There is a real difference in the standards of civility accorded to those with differing views between liberal blogs and conservative ones.
5.28.2009 2:34pm
Suzy (mail):
I don't think he is a dishonest person, but when he is commenting on an article and claims that the author says A when the author specifically, explicitly said not-A, well... that's dishonest. Either you didn't read the article and shouldn't be commenting, or you should acknowledge that at least the author claims not to agree with the words you're putting in her mouth. You may think she believes them anyway, but it requires minimally acknowledging that she said otherwise. I.e. if she says (in more than one place) that someone's background doesn't automatically translate into certain judgments or experiences, then don't claim she said the opposite.
5.28.2009 2:57pm
einhverfr (mail) (www):
The basic issue is that background and experience, of which ethnicity, race, and gender are contributing factors is inseparable from any exercise of judgement or search for truth. Sotomayor's statements are, rigorously parsed, quite accurate.

Whether she intends to imply that her judgement is better than others' in the court is a different question which should be vetted.
5.28.2009 3:00pm
Tugh (mail):
Cato:

I guess you haven't noticed the hostility on the right-wing blogs because you haven't been paying attention. Even on this thread, it was mostly Sotomayor's critics who used the epithet "racist." I would say that in general, the level of civility and the discourse overall is somewhat higher on the liberal and libertarian blogs, as compared to conservative ones.
5.28.2009 3:06pm
geokstr (mail):

Tugh:
Putting Two and Two:

I haven't read much of Prof. Somin's work, but being an immigrant from the Soviet Union myself I would like to think that I have a deeper and fuller appreciation of America's freedoms than many people who are born. It is not nationalist or racist; it is simply a reflection of the fact that freedoms are best known in comparison. Being able to compare first hand America's freedoms with those in the Soviet Union, I believe one better appreciates them.
For example, most Americans take freedom of speech as given; as well as freedom to criticize government without adverse consequences. No person born in the Soviet Union would take these freedoms for granted.

Now this is the kind of "empathy" that is desperately needed, not only on the SCOTUS, but in the POTUS, and the congress as well, to put some badly needed perspective and context around the very real erosion of major freedoms that we so much take for granted here.

While the noose is being slipped over the neck of free speech with an FCC "Diversity Committee" stacked with every leftwing group in the known universe, proposed "hate crime" legislation, proposed legislation to begin controlling the internet, university "speech codes", state level kangaroo "human rights commissions" staffed by leftists to control "offensive speech", mandatory "diversity" training in corporations, and much more, we diddle over parsing the mysterious depths of Sotomayor's phrases from long ago over her Latinaness.

Lawyers.
5.28.2009 3:14pm
ShelbyC:

Even on this thread, it was mostly Sotomayor's critics who used the epithet "racist."


Of course, the critic's position is that Sotomayor said that members of her race judge certain issues better that members of another specific race. I'm not sure that "racist" even counts as an epithet in this context. And look how the term "bigot" gets thrown around on the prop 8 threads.
5.28.2009 3:18pm
Tony Tutins (mail):

would those "richer" life experiences make them "better" able to judge some types of cases?

All other things being equal, the person with the greater breadth of experience will be able to make better decisions, because he's used to taking more factors into consideration.

Compare a CEO who came up the marketing ranks vs. one who's worked in R&D and Manufacturing as well. The ex-Marketeer will likely fall into old habits, and make decisions that are better for marketing than they are for the company as a whole.

the unrectified outcome of the Ricci case as is similarly offends my sensibilities. I have little doubt that she regards favorably this injustice that goes against everything most Americans believe the Civil Rights Era to have fought for

The object of the Civil Rights Era was for courts to force fire departments to promote people? You must have loved court-ordered busing.
5.28.2009 3:19pm
ShelbyC:

All other things being equal, the person with the greater breadth of experience will be able to make better decisions, because he's used to taking more factors into consideration.



And does this advantage based on experience lead to the fact that Latina's, in the aggreate, will make "better" decisions than white men?
5.28.2009 3:23pm
geokstr (mail):

Cato The Elder:
As an aside, why is it that whenever I wander over to predominately liberal blogs, I am always assaulted and insulted with epithets like "wingnut" and "racist" - even within his domain, Somin is referred to by partisans as "dishonest" and "pathetic". There is a real difference in the standards of civility accorded to those with differing views between liberal blogs and conservative ones.

Civility? The left don' need no steenking civility. Or honor either for that matter. Or free speech for those who disagree with them.

So you noticed that too eh, Cato?

There are on every conservative to moderate site now left wing trolls who appear to have plenty of time to read every post and can draw on a huge database of "quote mines" to rebut every negative about the left and every positive about the right. I am beginning to wonder if there aren't salaried positions at Media Matters and Daily Kos for trolling websites that the left doesn't already control, some of whose territory includes VC. Soros has plenty of money to fund them.
5.28.2009 3:27pm
Justin (mail):
"I am beginning to wonder if there aren't salaried positions at Media Matters and Daily Kos for trolling websites that the left doesn't already control, some of whose territory includes VC. Soros has plenty of money to fund them."

Wow.
5.28.2009 3:30pm
geokstr (mail):

ShelbyC:

Even on this thread, it was mostly Sotomayor's critics who used the epithet "racist."

Of course, the critic's position is that Sotomayor said that members of her race judge certain issues better that members of another specific race. I'm not sure that "racist" even counts as an epithet in this context. And look how the term "bigot" gets thrown around on the prop 8 threads.

Oh, come on now, ShelbyC, you're distorting the true meaning of the word "racist", and you know it, too. Everyone of any intelligence or who has the remotest amount of compassion understands that "racist" means anyone who disagrees with Obama or the left.
5.28.2009 3:33pm
ShelbyC:

Of course, the critic's position is that Sotomayor said...


And that should be critics' position, to pick my own nit.
5.28.2009 3:35pm
Tony Tutins (mail):

does this advantage based on experience lead to the fact that Latina's, in the aggreate, will make "better" decisions than white men?

No.

Likely the Latina house cleaner has had less experience than her white male boss. The more so, because in many parts of America, the Spanish-speaker, or Mandarin-speaker, or Vietnamese-speaker, can lead his or her life entirely in his native tongue.

But the daughter of the house cleaner, who by education and experience is the peer of the white businessman, has had more experience than he does.
5.28.2009 3:38pm
Tony Tutins (mail):

Soros has plenty of money to fund them."

Wow.

Yeah, where's my check?
5.28.2009 3:40pm
catchy:
I recently started commenting on this site and I admit to receiving Soros funds. We were given the directive by the organization he funds to answer this question honestly when directly queried.

I can only urge you to consider the veracity of my statements as opposed to the currency speculation which funded them.
5.28.2009 3:44pm
ShelbyC:

But the daughter of the house cleaner, who by education and experience is the peer of the white businessman, has had more experience than he does.


And I believe that Sotomayer was saying that this experience gap causes Latina judges to make "better" decisions than white judges. Alot of folks don't think that.
5.28.2009 3:51pm
John Humboldt (mail):

Me: John Roberts said judges should call balls and strikes. But baseball is an American and historically an Anglo sport. Not to mention the assumption there is perfect even-handedness is possible. That Roberts discounts his whiteness and maleness is perhaps a bias of its own sort. But no one criticized it.

Ilya: Actually, African-Americans and Hispanics have been disproportionately represented among top major league palyers for several decades now. Judge Sotomayor, an avid baseball fan, might dispute your claim that it is an "Anglo" sport.




Let's parse the racism of Ilya's response here.

I said: Baseball is an American sport. Ilya's response? "Actually, African-Americans and Hispanics have been disproportionately represented among top major league palyers for several decades now." I suppose Ilya does not think African-Americans and Hispanics are Americans.

I said: Baseball is historically an Anglo sport. Ilya's response? "Judge Sotomayor, an avid baseball fan, might dispute your claim that it is an 'Anglo' sport." Apparently, Ilya believes it is a valid concept that the history of baseball necessitates that only white people may watch it.

Ilya also misses the point. I said: "That Roberts discounts his whiteness and maleness is perhaps a bias of its own sort. But no one criticized it." But Ilya has no substantive response. Perhaps that is because Ilya is a biased white male.
5.28.2009 3:52pm
Asher (mail):
But the daughter of the house cleaner, who by education and experience is the peer of the white businessman, has had more experience than he does.

So your position here is that "wise Latina woman" is just a proxy for class, and that her multiple class experiences - first poor, then wealthy - are the reason that she'd - one hopes - make better decisions than the white male who only has the one sort of class experience. So then, is it your position that when Sotomayor speaks of the "white male who hasn't lived that life," she's exclusively referring to white males who were born upper middle-class, and that, for her purposes, a white male who came up from poverty makes just as good decisions as a wise Latina woman? Or are race qua race and gender qua gender, as opposed to the socioeconomic status to which race may correlate, playing some role here as well?
5.28.2009 3:57pm
Tony Tutins (mail):

So your position here is that "wise Latina woman" is just a proxy for class

No. My position is that "Latina" is packed with a lot of meaning. She will have had to master two cultures, and likely two languages.
5.28.2009 4:03pm
Nick056:
Her statement is, crucially, aspirational. It also emphasizes the value of probable experiences derived from identity. It basically means, "I would hope that a wise Latina woman would bring more relevant understanding to bear in certain cases than other wise people, because that woman should have a rich life experience to draw on. Let's recall that many people without similar life experienced decided these cases incorrectly despite their wisdom."

This is far easier to swallow than the professor's assertion that it's appreciably different to "take into account" experiences rooted in your identity, as opposed to "taking into account" experiences rooted in the identity of people you know. Especially when you can infer that Alito would hope taking these things into account would help him render a, er, better decision, in that it involved consideration of perspectives gleaned from what was in his heart.

For Ilya to draw this distinction in the manner he chooses ... Well, I'll be frank. I have difficulty responding to that with civility. Not because it's infuriating, but because it's funny. I feel bad for Mr. Somin, saying that Alito can draw on life experiences and take them into account, but Sotormayor can't without exposing herself to this kind of anxious appraisal. In his defense, Somin likely has contigent and qualified views of Alito's response. (By the way, assuming its sincerity, I thought it was an admirable thing to say. He's not ruling from his heart, but he's taking the life stories of the people he knows into account when he does rule. As a position and as s candid admission of the inevitable, I thought it was as praiseworthy was Somin's responses here are troubling.)

Oh, and hey Zarvok! I look forward to the appointment of Kagan or (I would hope) Karlan, so you can grouse more about the gay Mafia. Hot damn! The prospect of a Latina *and* a homosexual on the Court in one presidential term must give your Californian gut some indigestion.
5.28.2009 5:25pm
bbw:
Can somebody please explain why this matters? Assume everything the right is saying about her attitudes toward ethnicity are true. So what?

Lots of Justices have a very high opinion of their wisdom and judicial acumen. Suppose Sotomayor believes she is a great judge because she is Latina. So what?

The "what would happen if a white man said this" argument is stupid. Again, so what? How much better would your life be if only you could make racialist statements without public oppobrium? Keep in mind that you can already refer to characteristics about yourself based on ethnicity or regionality. I have never heard scorn directed at people who claim X quality about them is caused by being Irish or Russian or Southern or Bostonian or Jewish or Christian or Greek or English. Just not "white."
5.28.2009 6:14pm
jukeboxgrad (mail):
ShelbyC:

Sotomayor said that members of her race judge certain issues better that members of another specific race … "the personal experience of people of my race make me more qualified to do X than people of a different race" … She said Latina judges have experience that will allow them to make better decisions than white judges


Alito's statement amounts to the same thing, and the attempts to deny this don't work. Alito said this:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.


If he's going to "take that into account," it can only be because he thinks it will help him arrive at a better decision, as compared with if he didn't "take that into account." And someone from a different background, who has not "suffered discrimination" (by proxy, via his family) will not be able to take "into account" what Alito is able to take "into account." So therefore Alito is indeed stating that "the personal experience of people of my race make me more qualified to do X than people of a different race." (I assume that no one is going to argue that "race" and "ethnic background" should not be treated as interchangeable terms, for the purpose of this discussion.)

Alito's proxy experience ("people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender") either helps him make better decisions or it doesn't. And he claimed the former (otherwise there would be no reason to "take that into account"). Which means that he obviously believes that he's in a position to make a better decision than someone who is not in a position to "take … into account" what Alito is in a position to "take … into account." Alito is obviously saying that his ethnic background puts him in a position to be a better judge. Better than whom? Better than someone who lacks his ethnic background. Racist!

The underlying meaning is the same, but there are some superficial differences that make her remark easily subject to exploitation by the people who are exploiting it. The key difference is that she named a counterpart in her comparison: "a white male." In Alito's remark, the counterpart (someone who has not "suffered discrimination" at least by proxy, via his family) is implied but not named.

The GOP is continuing its death spiral, because this strategy will work great with the base, and it will backfire with everyone else.
5.28.2009 6:18pm
Paul in Miami (mail):
At times like this I'm so ashamed to have ever been a Republican... Sonia IS going to be confirmed! Get that through their thick, angry, intolerant heads. They also LOST the election! Republican sentiments aside. That party has made me a not-republican for life. I regret to have EVER been associated with it at all. They are calling her a racist. Well, the mirror is looking straight back at them. Can't these people get a sane human being to represent them?
5.28.2009 6:45pm
Asher (mail):
If he's going to "take that into account," it can only be because he thinks it will help him arrive at a better decision, as compared with if he didn't "take that into account." And someone from a different background, who has not "suffered discrimination" (by proxy, via his family) will not be able to take "into account" what Alito is able to take "into account." So therefore Alito is indeed stating that "the personal experience of people of my race make me more qualified to do X than people of a different race." (I assume that no one is going to argue that "race" and "ethnic background" should not be treated as interchangeable terms, for the purpose of this discussion.)

That's all fairly reasonable, but I can't help but think that there's some way to resist the conclusion that Alito thinks that Italian-Americans, on average, come to better decisions than WASPs. One way I'd suggest that's more of a way around your argument than an attack on it is that I have a nagging suspicion that Alito's remarks weren't terribly sincere, but rather were just some "I'm a nice sensitive fellow" gobbledygook he said in his confirmation hearings to assure folks that he wasn't some draconian echt-conservative. Whereas Sotomayor's comments seem quite sincere.
5.28.2009 7:26pm
solipsism:
There is no reason to argue about the merits of having a rich, experienced life. Careful reading shows that her statement is qualified. She is not saying that a "wise Latina woman" will make a better decision, she is saying that a "wise Latina woman" should make a better decision if her experiences allows her to make a better decision.

If one looks at the text surrounding the statement, she essentially says that she hopes that a "wise Latina woman" will be able to recognize how and whether her own experiences are relevant in a case, and will either apply them or reject them. In such a situation, a "wise Latina woman" would actually be doing everyone a disservice if she did not take into account her experiences to make a better judgment than someone whose experiences are less relevant.

This interpretation is consistent with the rest of her speech and the context surrounding her statement.
5.28.2009 7:39pm
ShelbyC:

So therefore Alito is indeed stating that "the personal experience of people of my race make me more qualified to do X than people of a different race."


But he's not saying that. Sotomayer's saying that she can do it better than Alito. Everyone has experiences they can draw on to help them understand race discrimination. Sotomayer says that her Latina experiences are better than a white male's experiences. There's the difference.
5.28.2009 7:50pm
solipsism:
> Sotomayer's saying that she can do it better than Alito.

This is inaccurate. Consider the following statement:

"Suppose Alice has more information about an issue than Bob. I should hope that Alice will make a better decision than Bob, who does not have this information (if she is at least as competent as Bob!)"

Notice that I am not saying that Alice can make better decisions than Bob.

It's actually quite difficult for me to imagine that she could have meant anything else in her speech, as it would simply not make any sense. Why would someone claim outright that their ethnicity makes them better at a generic occupation, like doctor, firefighter, or judge? In order to do so, one must assume that Sotomayor is sophomoric enough to do so, and I find it difficult to make such an assumption.
5.28.2009 7:54pm
Asher (mail):
"Suppose Alice has more information about an issue than Bob. I should hope that Alice will make a better decision than Bob, who does not have this information (if she is at least as competent as Bob!)"

Seems to depend immensely on what sort of information this 'more information' is. Clarence Thomas, for instance, has more information about affirmative action than Justice Stevens. He more or less admits that he got into Yale Law because of his race, and that this knowledge made him feel that his degree was worthless. He has personal experience with the stuff. Consequently, he has a pretty unconcealed personal animus against affirmative action that shines through whenever he writes on the subject. Now, Thomas would tell you that his personal experience of affirmative action informs his decisions on the issue in a positive way - he really gets the nature of the beast, whereas other jurists only understand aff. act. in an abstract way. Others, though, might say that Thomas's experience caused him to hold a rabid bias against any and all racial preferences that really prevents him from ruling on these matters in a judicious manner. I take no side one way or the other, but just point to this example to illustrate that more information, and personal experience with matters you're ruling on, don't necessarily help you to make better decisions, and may even hurt.
5.28.2009 8:24pm
solipsism:

more information, and personal experience with matters you're ruling on, don't necessarily help you to make better decisions, and may even hurt.


Agreed. However, the claim "relevant information leads to better decisions" is far less controversial and less inflammatory than "Latino women make better decisions." Focusing on the latter amounts to the promoting a straw man argument. Of course, arguing about the former statement is a lot less exciting and would draw far fewer participants...
5.28.2009 8:29pm
Asher (mail):
I don't know even about that claim. Thomas's information about affirmative action strikes me as relevant enough, but it's probably distorted his jurisprudence to an undesirable extent all the same.
5.28.2009 9:11pm
jukeboxgrad (mail):
asher:

the conclusion that Alito thinks that Italian-Americans, on average, come to better decisions than WASPs


But that's not what he said. He's only talking about discrimination cases, not all cases. So I don't think it's a very surprising thing to say.

Aside from that, I think (as others have mentioned) that someone who overcomes adversity is indeed going to be a better judge, generally.

I have a nagging suspicion that Alito's remarks weren't terribly sincere


I have the same feeling. But it's ironic that one vice (dishonesty) shields him from criticism for another vice (bigotry).

And just to be clear, I don't think his remark is bigoted (assuming he was sincere). I just think it's the equivalent of SS's remark, and I think neither remark is bigoted.

more information, and personal experience with matters you're ruling on, don't necessarily help you to make better decisions, and may even hurt


Good point. The key word there is "necessarily." It's a qualification, and it corresponds with a qualification in SS's statement: "I would hope."

================
ShelbyC:

Everyone has experiences they can draw on to help them understand race discrimination.


You're entitled to express this opinion, but this assertion you just made is not the assertion that's embodied in Alito's statement. Because not "everyone" has people in their "own family who suffered discrimination because of their ethnic background or because of religion or because of gender." But Alito made that statement about his own family. He did that in the context of discussing how his recent ancestors were poor immigrants. So this is definitely not the story of "everyone." It's a story only certain people can tell, and SS and Alito are both members of that category. It's just that only one of them is being crucified for telling the story.

Sotomayer says that her Latina experiences are better than a white male's experiences.


Alito said that his experience of coming from poor immigrants is something he would "take … into account" when judging a discrimination case. And this is an implicit declaration that his judging of that case would be "better," as compared with someone whose own family had not "suffered discrimination because of their ethnic background or because of religion or because of gender." So he's making a claim that is essentially no different than hers.
5.28.2009 10:07pm
Guest 8:
Did Alito say that because of his experience, he would be better able to make a decision than a person of a different race, gender, or ethnicity? Or did he say that it simply informs his decision, which is acknowledging that one's life experiences may shape their thoughts.

You can agree, as Alito does, that a person's life experiences shape their throughts and inform their opinion without believing that your particular experiences give you better insight than a person who doesn't have your particular experiences. The problem with Sotomayer's statement isn't the fact that she thinks her experiences are irrelevant, it's the qualitative judgment that she believes that those experiences make her better able to render an opinion about issues, including discrimination, than a person of another race and gender. And the only way you can reach the conclusion she reaches is if you make assumptions about the life experiences of the other person BASED on their race, gender, or ethnicity. Those assumptions may even be correct in most cases -- how many white males, for instance, have actually suffered tangible discrimination? How many have been slighted because of their race or gender? Probably very few. But is that the line you really want to take on racial considerations, that so long as the assumption holds a high percentage of the time, it's okay to take race into account?
5.28.2009 10:20pm
Asher (mail):
more information, and personal experience with matters you're ruling on, don't necessarily help you to make better decisions, and may even hurt



Good point. The key word there is "necessarily." It's a qualification, and it corresponds with a qualification in SS's statement: "I would hope."


Well I'll go farther then. I don't think that personal experience with discrimination or racial classifications are at all likely to help a judge make better decisions in discrimination cases, any more than experience being a woman is likely to help a judge make better decisions on reproductive rights or experience being a white male is likely to help a judge make good decisions in "reverse discrimination" cases. I think these sorts of experiences are likely to bias judges towards those claiming discrimination, towards those claiming that their reproductive rights were violated, towards those claiming reverse discrimination, and I don't at all see why that's usually or often a good thing. It's just bias. Now of course, if you're a staunch reproductive rights supporter, you'll want more women on the Court; if racial preferences get you hopping mad, you'll want more white men, all things being equal, and if you're the NAACP, more minorities, especially more blacks, will be preferable. Each of these groups would say that a certain type of judge is likely to make better decisions. But from a neutral perspective, one that doesn't take a particular side on what types of discrimination decisions are better, I don't see how one arrives at the conclusion that wise Latina women will, or at least ought to, make better decisions than white men.
5.28.2009 10:23pm
A. Zarkov (mail):
I think Sotomayor has given us a testable theory, and we should look to the Commonwealth of Puerto Rico for the answer. In particular the Supreme Court of Puerto Rico. According to her theory, we should find it a fount of jurisprudential wisdom, or at least better than the US. The SCOPR has 7 justices and 3 of them are women. Even better than the SCOTUS because we can observe the Latina theory in actual operation.

Legal scholars should take a sampling SCOPR decisions and tell us all the ways in which they are wise. Why argue about something when you can test it?
5.28.2009 11:07pm
miss p:
I would hope that a learned law professor at a major law school, with all of the richness of his experience, would offer better readings of a an appellate judge's speech than pseudonymous commenters on his blog without that experience. But that hope would be in vain.

In particular, thanks to jukeboxgrad and Suzy for breaking down the decontextualized reading and contorted defenses Prof. Somin has offered. I really think it is a shame that he has not chosen to participate in this conversation in the intellectually honest fashion I would expect from a VC blogger, law professor, and attorney.
5.28.2009 11:48pm
jukeboxgrad (mail):
guest:

Did Alito say that because of his experience, he would be better able to make a decision than a person of a different race, gender, or ethnicity? Or did he say that it simply informs his decision, which is acknowledging that one's life experiences may shape their thoughts.


If I say "one's life experiences may shape their thoughts," I'm describing something involuntary and passive. I'm saying 'I can't not be who I am, no matter how hard I try.' I'm saying 'it's ultimately impossible to be completely objective.' I'm saying 'my life experiences made me who I am, and that's going to shape my thoughts, no matter how much I try to be impartial and objective.'

But that's not what Alito said. He said "I do take that into account." That's voluntary. It's intentional. It's a conscious, affirmative choice. He's deliberately choosing to bring "that" into the courtroom. This is very different from just "acknowledging that one's life experiences may shape [your] thoughts," despite your efforts to be objective and impartial. So by saying he chooses to "take that into account," he is indeed claiming that "he would be better able to make a decision than a person of a different race, gender, or ethnicity" who is not in a position to "take … into account" what Alito is in a position to "take … into account."

You can agree, as Alito does, that a person's life experiences shape their throughts and inform their opinion without believing that your particular experiences give you better insight than a person who doesn't have your particular experiences


If Alito didn't believe that his "particular experiences give [him] better insight than a person who doesn't have [his] particular experiences," then it would be foolish for him to "take … into account" those experiences. If those experiences don't give him "better insight," then it would be proper for him to try as hard as he can to ignore those experiences.

it's the qualitative judgment that she believes that those experiences make her better able to render an opinion about issues, including discrimination, than a person of another race and gender


But Alito is making the same "qualitative judgment." He just isn't explicitly making reference to the "person of another race and gender." Whereas SS did, by saying "white male." But this is a superficial distinction. The comparison that SS makes explicitly is implicit in Alito's statement.

If Alito didn't think his "experiences make [him] better able to render an opinion about issues, including discrimination, than a person" with a different ethnic/cultural background, then it would be foolish and inappropriate for him to consciously choose to "take … into account" those experiences.

the only way you can reach the conclusion she reaches is if you make assumptions about the life experiences of the other person BASED on their race, gender, or ethnicity.


Alito's remark does indeed embody the assumption that a person with a different ethnic/cultural background might not be in a position to "take … into account" what Alito is in a position to "take … into account."

================
asher:

I don't think that personal experience with discrimination or racial classifications are at all likely to help a judge make better decisions in discrimination cases


I respect your opinion, but I hope you can understand that many reasonable people disagree with you.

And it's important to recognize that when you give that case to a white male, you're not really giving the case to a person who lacks "personal experience with discrimination or racial classifications." You are giving the case to a person who has arguably benefited from "discrimination or racial classifications." So that's indeed a kind of experience, just from the opposite direction. When you look at this way, you realize you need to explain why a person who has benefited from discrimination will be more fair (in hearing a discrimination case), as compared with someone who has been hurt by discrimination.

I think these sorts of experiences are likely to bias judges towards those claiming discrimination


And the experience of benefiting from discrimination is likely to bias judges away from those claiming discrimination. It's interesting to notice how easily you overlook the fact that your sword cuts both ways.

from a neutral perspective, one that doesn't take a particular side on what types of discrimination decisions are better, I don't see how one arrives at the conclusion that wise Latina women will, or at least ought to, make better decisions than white men.


Various people have answered that question. Including me, here. And I don't just claim that "wise Latina women will, or at least ought to, make better decisions than white men" in discrimination cases. I make this claim regarding all cases. And I would make the opposite claim in a world that was dominated by Latina women.

================
zarkov:

According to her theory, we should find it a fount of jurisprudential wisdom, or at least better than the US.


Not if you understand "her theory" the way I do. Because what I'm talking about here is specifically about minority status. And Puerto Ricans in Puerto Rico do not have minority status.

miss p, thanks for the compliment. I have greatly enjoyed your posts on this subject.
5.29.2009 10:40am
Guest 8:
Jukebox, your contortions are stunning. Alito could have just as easily been saying "I do take that into account" as a common sense realization that it inevitably creeps into one's thought processes. And on many questions, particularly questions related to "reasonableness," that is entirely appropriate.

But he still isn't saying that it gives him a better opinion than another person of another race or gender. You can't contort your way out of the fact that Alito, unlike your preferred Democratic nominee, wasn't saying his judgment is better than another person of another gender or race because of those experiences. You can't because he didn't say it. That is, perhaps, why the White House today acknowledged what a poor choice of words the Judge made.

That is a better defense than the all-too typical rationalizations you offer. Sometimes poor word choices are just that. Stop writing two-page, twisted and contorted defenses of something even the candidate apparently doesn't want to defend. Own up to it as a poor word choice and move on. Stop acting as if the comparison wasn't made (which you have) and just admit that it was a poor way of phrasing a point that one can consider life experiences. Because if you do that, you won't get much disagreement. Admittedly, you then have to admit error by someone on your side of the aisle, but is that really so awful?
5.29.2009 8:21pm
jukeboxgrad (mail):
guest:

Alito could have just as easily been saying "I do take that into account" as a common sense realization that it inevitably creeps into one's thought processes.


Except that you have to deal with what he actually said, not what you wish he said. He didn't say 'it inevitably creeps into one's thought processes, even though I try to be impartial and keep it out.' If that's what he was trying to express, that's what he could have, should have, and would have said. But that's not what he said. On the contrary. In the context of talking proudly about his poor immigrant ancestors, he said he takes their experience "into account." He talked about their experience as a welcome influence that he embraces consciously and deliberately. Not as something that "inevitably creeps" into the process despite his best efforts to keep it out.

he still isn't saying that it gives him a better opinion than another person of another race or gender


If what he was choosing to "take … into account" did not put him in a position to reach "a better opinion than another person of another race or gender" who was not in a position to take those things into account, then it would be foolish and inappropriate for him to take those things into account.

Alito … wasn't saying his judgment is better than another person of another gender or race because of those experiences.


Alito said he was consciously choosing to "take … into account" his family history of discrimination. It would be inappropriate for him to do this unless he thought that by doing so he could reach a "better" decision, as compared with not doing so. And if he is reachng a better decision by doing so, then he is also reaching a better decision, as compared with "another person of another gender or race" who is not in a position to do so.

That is, perhaps, why the White House today acknowledged what a poor choice of words the Judge made.


It was a poor choice mostly because a Republican (i.e. Alito) could get away with saying essentially the same thing, but a Democrat can't. IOKIYAR.

Sometimes poor word choices are just that.


Except that the dogs who are barking about this aren't claiming she made a 'poor word choice.' They're claiming that it's proof she's a racist. Those two perspectives are quite different. But I think you're helpfully admitting that some disingenuous people are trying to turn the former into the latter.

It was a 'poor word choice' only in a narrow political sense. She said what Alito said, except that she was more explicit. In other words, she wasn't talking like a politician. Good for her.
5.29.2009 9:21pm

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