Much attention is being paid to the following statement made by Sonia Sotomayor in a 2001 speech in Berkeley, California:
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 [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.
To summarize: Sotomayor is saying that she is not especially bothered by the fact that judges may be using their own ethicity and/or gender to come to different decisions. Justice is not blind and impartial, and apparently this is okay with her. In fact, she celebrates the phenomenon, saying that she hopes a wise latina woman would dispense better decisions than a white man because of her “rich” life experiences; she embraces this sort of judicial inequality.
In doing so, Sotomayor stands Sandra Day O’Connor’s much wiser formulation about wisdom—O’Connor believes it can be possessed equally by people of either gender, and no doubt she would have included “of any race”—on its head. Sotomayor is instead saying that she wishes for such differences, and hopes that the superior judgments would be rendered by someone of her own particular gender and ethnicity.
This statement alone ought to disqualify her from any consideration for a position on the Supreme Court, including clerk (although it won’t). Why do I say this? It’s not just the racism inherent in it, although that is bad enough. It is not even her idea that people’s life experiences and even their ethnicity and gender sometimes do color their judgments; that observation is true. It is her idea that this sort of differential justice and judgment based on gender and ethnicity would be something to celebrate in a judge rather than to guard against and minimize.
Sotomayor has abandoned the idea that the possession of judicial wisdom is something that is—or should be—color and gender blind, that it ought to have a certain reality that transcends a judge’s own personal history. In other words, she does not believe that those who dispense justice can be impartially and equally wise, and that wisdom is something separate from one’s gender and ethnic identity.
Impartiality may be difficult or even impossible to achieve, and reasonable men (and women!) can differ about when it is being displayed, but one of the most sacred and important foundations of our legal system is that it is nevertheless something for which we must strive. In a very different context, I recently observed:
That’s why justice wears that blindfold. It’s not that she’s unaware, it’s that she’s supposed to be impartial.
In that post I was criticizing Obama for overriding the impartial rule of law in order to get a result he thought was right and fair in the Chrysler restructuring. He threw out contract law to favor his buddies in the unions and to criticize and short-change the first lenders.
Therefore it’s no accident Obama chose Sotomayor as the first of what will probably be several picks for Supreme Court Justice. They are both on the same page about justice: it is what they, in their infinite wisdom and valuable life experience as members of minorities defined as underprivileged and worthy of special and favored treatment, declare it to be. Not what a bunch of less-wise white men who “haven’t lived that life” might think it is. But paradoxically, the idea that there is some superiority inherent in a person’s racial or gender makeup is an example of a pernicious type of thinking that our rule of law has evolved to combat.
Affirmative action is not tangential but rather is central to all of this. The well-intentioned but I believe fundamentally flawed policy of affirmative action went beyond its own fair and desirable original goal: that people of different ethnicities and/or races be treated equally, be subject to the same rules for admission to schools and hiring and promotion and not be discriminated against. Instead, the new requirement was that supposed equality of outcome would be forced by treating them differentially rather than the same, that the rules must be changed for groups that had previously been discriminated against, now favoring them in order to redress previous impediments to an equal playing field.
Despite its laudable aims this was a dangerous move. We all have subsequently paid dearly, including those whom affirmative action was supposed to benefit, because their achievements have forever after been tainted by the suspicion (correct or incorrect) that they might not have been able to earn them if the playing field had not been recently slanted in their favor.
I’ve thought long and hard about what would have happened without affirmative action. I’m not at all sure there was a better alternative at the time, and I applaud the integration of our society and the increased opportunities for minorities that it has brought. Justice O’Connor thought the policy should be time-limited; by 2028, there would be no need for it. But once in place, these things tend to take on a life of their own, and are extremely difficult to eradicate.
In the meantime, we have results such as Judge Sotomayor’s comments about wise latinas and white men. A more racist statement would be hard to find, as one can easily see by switching the genders and races around in the same quote. But this probably will not harm her chances at confirmation. In a troubling paradox, PC thought coupled with affirmative action has made it impossible to point out the racism of a “wise latina” without having the charge of racism hurled back thousandfold at the person making the critique.
Barack Obama used racism in a similar manner during his campaign: knowing that his own racial makeup virtually immunized him against the charge, he allowed his surrogates to call his opponents racists when any criticism of Obama was mounted. He is counting on exactly the same phenomenon to protect Judge Sotomayor.
[NOTE: I think it may be no accident that Barack Obama and Sonia Sotomayor both went to law school during the period when the approach known as critical legal studies was highly influential in American legal education. This movement rejected the idea that the law was---or, what was more important, ever could be---impartial, and asserted instead that it was inherently political and favored the powerful elites over the oppressed.]
[ADDENDUM: Thomas Sowell agrees that these words of Judge Sotomayor's represent a "poisonous doctrine." And Thomas Sowell is a black man. Does that make the "richness of his experience" less, or more, likely to lead to wisdom than that of a Latina woman? I'm so confused.]