In Defense of Sotomayor’s Critics

Supreme Court nominee Sonia Sotomayor has been getting a lot of criticism for a speech she gave at the UC Berkeley, School of Law in which she said “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.”

Lots of Judge Sotomayor’s defenders have been accusing here conservative critics of taking her comments out of context. Many of them are predictably accusing her critics of racism as well.

You should read the whole text of her speech as published in the Berkeley La Raza Law Journal if you really want to understand the context.  The problem is that the context doesn’t make the comments any better.  If anything it makes them worse.  With respect to that particular controversial comment, I can see only two possible ways of reading it:

The first is that she’s saying decisions should be guided by “empathy” — not simply the letter of the law — and empathy is something she has more of because, as a non-white male, she has faced more of life’s hardships.  She has a “richer experience”, in her words.  As a result, her increased empathy will lead her to better decisions, in general.  That seems to be a reasonable interpretation of her comments, even reading them in context.  Most of her defenders are claiming that’s not what she meant, but it does seem to be a plausible interpretation, given the statement’s lack of qualifiers.  And I’m sorry, but if that’s what she meant, it is indeed stupid, shallow and yes, racist.  Saying Latina women are more empathic because of their experience is no less racist than saying white men are more honest or competent because of theirs.

The second, and more likely, possibility is that she was saying her life experience would help her reach a better decision in those specific cases involving people with similar backgrounds – i.e. women and ethnic minorities – because she’s faced similar obstacles and can better empathize with their situation.  Unfortunately this interpretation is worse than the first.

First of all, if you don’t consider that argument offensive, try reversing it.  Imagine a white male Bush nominee saying (in ANY context) “I would hope that a wise white male, with the richness of his experiences, would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.”  Democrats across the board would be outraged.   And every one of you who are now defending Sotomayor would be calling that judge a racist.  Now imagine this hypothetical nominee’s defenders started saying “no, no, you’re taking his words out of context.  He wasn’t saying that a white male would ALWAYS make a better decision in all cases.  He was only talking about those specific cases in which his “rich experience” as a white male give him a better understanding of certain issues.  You know, like corporate law, second amendment rights, and national security”.  Would suddenly that make it ok?  Not a chance.

It’s important to note that she was not simply saying “My background will help bring a different perspective to the court and perhaps help the court to consider facts they might not have otherwise considered.”  If that’s what she said, no one would have a problem with it.  But she didn’t.  What she said (and still believes, apparently) is that that in cases involving women and minorities she will make better decisions than white male Justices because of her background.

But every case involving an ethnic minority or a female in which that party’s ethnicity and gender are directly relevant to the case is almost certainly going to include a counter party that is white or male.  Let’s face it, what we’re really talking about are cases that involve discrimination claims, affirmative action, etc. — the sort of cases in which ethnicity and gender would be relevant.

In any such case empathy can’t help you make a “better decision” unless your empathy lies with one side or the other who you’ve pre-determined is probably right.  And since she admits that this empathy will sometimes be determined by her own ethnicity and gender – and she’s OK with that – it makes what she’s saying even worse.

She is essentially saying “I will make a better decision in discrimination cases because I know what it’s like to face discrimination”.  But how is that any better than a white male judge saying “I will make a better decision because I know what it’s like to be falsely accused of discrimination”?  Liberals, would you really trust any judge that said that to approach a discrimination case fairly and honestly?

I know what you’re thinking – that all those white men on the Supreme Court do the same thing with their own biases; they just don’t admit it.  But that’s where you’re wrong.  While it may be impossible for any Justice to eliminate 100% of their biases, we should expect them to make every possible effort to do so.  And at least four of them do, precisely because that’s what their own judicial philosophy demands.

Justice Scalia has said many times that he often reaches decisions that he doesn’t like because he has to uphold laws he doesn’t necessarily agree with.  So do all the non-activists (conservatives) on the bench.  That’s not surprising since that’s the whole point of the non-activist judicial philosophy they subscribe to.  Activist Justices like Breyer and Ginsberg, on the other hand, do everything possible to find ways to “re-interpret” the law using novel legal theories in order to make it fit with their own biases, even when that means ignoring the clear intent of the law.

Sotomayor is saying she will follow the same activist approach as Breyer and Ginsberg, and she’s proud of it.  Even worse, when she does so, she knows she will allow ethnicity and gender to affect her judgment in “relevant” cases and she sees nothing wrong with that.  Lest you doubt that, she even concludes the speech by saying: “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.”  It’s depressing that any judge would think the answer to that question is something other than “never”.

If you still think it’s unfair to extrapolate all of this from a couple of sentences, please read her entire speech.  Much of it – especially the second half — is an indirect attempt to argue in favor of outcome-based judicial activism and completely supports her critics’ interpretation of her comments.

If you’re a liberal, do you really want Justice Thomas or Scalia to start making decisions based on their own personal “opinions, sympathies and prejudices”?  Isn’t it better to insist that judges make every effort to act on principle and abide by the Constitutional limits on their own power, rather than undermine the neutrality of the courts?

This isn’t just an abstract philosophical argument either.  It has real-world consequences.  For examples of what happens when judges allow their decisions to be guided by selective empathy, we have only to look at some of Sotomayor’s own cases:

See, for example, Krauthammer’s comments on the Ricci v. DeStefano case here.

See also this from last October.

as well as this case in which Sotomayor resorts to some really creative reasoning to support a ridiculous ADA disability lawsuit.

And just in case you needed some more proof that Sotomayor is an unabashed judicial activist, see her comments from this other law-review article.


One Response

  1. This was a particularly nice quote for her 2002 speech:

    “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.”

    Yes. Everyone but white men gets to consider their glories; white men only their shame.

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