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The relevant paragraphs from Sonia Sotomayor’s “wise Latina” speech:

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.

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.

Sotomayor is saying something designed to inspire those against whom expectations have run: In American culture, the image of a wise judge generally is that of an old white man. Sotomayor is asking her audience to embrace a different image. In fact, she says, the very life experiences that traditionally have worked to disempower people make one wiser than those who haven’t had those experiences. The unfortunate implication of Sotomayor’s rhetoric (or, at least the inference taken by some white male Senators) is that race is the differentiator, not the experiences…an inference that does not survive reading the rest of the passage. Clearly, Sotomayor is saying exactly what all Americans are taught: We are a melting pot made stronger by the diversity of our culture.

So, here’s what I’d ask the Republican Senators who are questioning her about that line in her speech:

Senator, would you be ok with an all white, all male Court?

That is, if all else were equal, Senator, would you prefer to have a Supreme Court made up of nine white men from similar backgrounds, or a Court that includes men and women, people of various hues, and people from a variety of backgrounds?

If you’re ok, Senator, with a lily-white, male Court, you may sit down. Thank you.

If, however, you think we are better now for having some diversity among our Justices, then don’t you agree that “a difference there will be by the presence of women and people of color on the bench”? Don’t you agree that diversity strengths the Court — makes it wiser — because it brings different points of view to bear? So, Senator, you agree that one’s background affects one’s judgment, and that we are better off having multiple life-experiences represented on the Court.

So, Senator, don’t you think it’s a great for the Court to have, say, a wise Latina woman in the discussions? Me, too!

In creating a Supreme Court rather than one Supreme Justice, our founders recognized that wisdom is more reliably a property of a system than of an individual. Wisdom is most likely to emerge from a network that embraces diversity.

Especially a diversity of people who are empathetic. But that’s another issue… [Tags: ]

One Response to “Senator, would you be ok with an all-white Court? Really?”

  1. on 16 Jul 2009 at 8:00 amnathan


    I am a man who is more socially conservative and enjoys reading views of those who disagree with me.

    I applaud the Republican senators for not letting the judge off too easily, and I think that you are missing the point (I would guess that they really do think that ethnic diversity on the court is not only something that looks good and makes us feel good, but is actually, really, objectively “good”, as do I), which I think can be illustrated in the following exchange I had with another here:

    “There probably is no such thing as true impartiality.”

    Me: Of course. But what does one mean when they say “there is no objective stance”? That we have different perspectives and biases that we should strive to overcome in an effort to seek a universal justice – or that such is a hopeless quest and so that it is OK to rest comfortably in those biases, so long as society does not seem overly bothered by this attitude, but rather embraces an intensely fuzzy pluralism?

    “I do wonder about the folks who have jumped on some of her statements, taking some of them out of context.”

    Me: Yes, I am afraid we all do this to some extent in our efforts to tailor our rhetoric to score points.

    “Would they be saying the same thing if the same words came out of the mouth of a white male judge?”

    Me: Are we talking about concerns regarding the statement “there is no objective stance”? If so, I would have concerns about *whoever* would say the statement, insofar as they mean something like I wrote above, i.e. “seek[ing] a universal justice…is a hopeless quest…”

    David, you are a bright guy and I appreciate your thoughtfulness. There really is something behind your jarring “transparency is the new objectivity” idea…

    And yet…

    Really David, I would just appreciate it if persons like yourself would just admit that you really do what to more or less wholly abandon the thought-patterns of those Enlightenment men who produced the U.S. Constitution those many years ago.