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Wednesday, May 27, 2009

The casual viciousness with which the leading lights of the Republican Party (Limbaugh, Gingrich, Beck, Buchanan and Coulter, even second-stringers like Tom Tancredo) have declared Sonia Sotomayor a "racist" is startling and deeply disturbing, even putting aside the irony that these individuals of all people would wave this particular bloody shirt. I'm not really sure what their long-term goal is. Do they think this is a remotely plausible strategy for Senatorial opposition? Are they trying to make "racism" itself a toxic, he-said-she-said subject that is outside the bounds of reasoned discourse? Are they so narrow-minded and short-sighted as to somehow believe she really is a racist? I don't get it.

This is all predicated on a single out-of-context quote from a 2001 speech she made to Berkeley law students:

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.
Taken out-of-context this is a statement about which reasonable people might disagree, though it surely doesn't rise to the level of racism outside right wing histrionics. She's not, after all, making some empirical claim about the relative intrinsic qualities of various races; she's claiming that her life experiences inform the decisions she makes and may sometimes lead to better judgments that "a white male who hasn't lived that life." That's controversial, maybe, but it's not racist. It doesn't speak to race; it speaks to life experience, to empathy.

But when Ta-Nehisi Coates and Spencer Ackerman direct us to the full context, the controversy vanishes for anyone with reading comprehension and a basic understanding of rhetorical irony.
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.
(1) She's responding (quite humbly) to a quote attributed to Justice O'Connor that suggests that judicial reasoning is somehow universal and objective, "that a wise old man and wise old woman" will tend to reach the same conclusion on any given subject. There's very good reason to think that isn't so -- precisely because there is no universal, objective definition of wise, however much we might wish there were -- and I tend to agree with her.

In context, in any event, the correct hysterical accusation is plainly "She's a sexist!", not "She's a racist!"

2) Even more importantly, in context her introduction of "a wise Latina woman" is plainly a sly, self-mocking reference to herself. It's an ironic wink to her own position as exactly the sort of judge about which she is speaking—it's not a truth claim about race, and no one listening to her that day would have thought it was.