Politico, Wash. Post omit context of Sotomayor remark about "Latina," "white male" judges
In May 27 articles about the politics surrounding Judge Sonia Sotomayor's Supreme Court nomination, both the Politico and The Washington Post omitted the context of her 2001 remark that "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." In fact, when Sotomayor made that statement, she was specifically discussing the importance of judicial diversity in determining "race and sex discrimination cases."
Suggesting that Sotomayor's comments contradict President Obama's stated distaste for "identity politics," the Politico reported that, in 2001, Sotomayor said "that 'a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion' than a 'white male' judge." The Post reported that "[l]eading conservatives" are targeting the 2001 speech "in which she said a Latina would often 'reach a better conclusion than a white male who hasn't lived that life.' " The Post also reported that "White House officials argued that the comments in the speeches were taken out of context," but did not explain or provide that context.
As Media Matters for America has noted, Fox News host Megyn Kelly, among others, claimed that in that 2001 speech, Sotomayor suggested "that Latina judges are obviously better than white male judges."
In fact, contrary to the suggestion that Sotomayor was commenting on the general judicial ability of Latinas and white men, Sotomayor was talking specifically about "race and sex discrimination cases." From Sotomayor's speech, delivered at the University of California-Berkeley School of Law and published in 2002 in the Berkeley La Raza Law Journal:
In our private conversations, Judge [Miriam] Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice [Ruth Bader] Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
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 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.
Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] 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.
Moreover, as Media Matters has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.
