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Reading Sotomayor's "Wise Latina" Speech

Cross-posted from Ambiance

Thanks to Maxwell in the comments on the previous post for giving me the link to the whole speech.  I'm going to "liveblog" my reading of it.

First of all, it's in the Berkeley La Raza Law Journal.  That alone speaks volumes.  Berkeley is Berkeley and "La Raza" is "the race."

What identity politics did was to turn a negative special identity into a positive one -- even the bad experiences of discrimination became a kind of ennobling crucifixion (á la Karl Marx's thinking when he somehow assumed the oppressed classes were something other than human and, having experienced injustice, would inevitably be just).  Finding the positive in precisely what has been defined as negative can be a useful step towards full participation (as I found out with my "elevator," feminism).  Minority conservatives found advantages in skipping that step (they were rewarded for volunteering to be poster children for the idea that you could skip that step, a step that can release unseemly anger).  Identity politicians found advantages and rewards in getting stuck in it and wallowing there.

(Sorry, blogger's disease -- you can't read a sentence or even so much as a title without blathering a Talmud on it.)

Second:  the subtitle of the symposium in which Sotomayor's speech was delivered is "Latino and Latina Presence in the Judiciary and the Struggle for Representation."  As someone pointed out yesterday, the judiciary is not a representative body.  That's the legislature.  The judiciary ideally represents something that is impartial and above all particular identities:  the law.  If any part of government should be colorblind, it's the judiciary.  The way to be "represented" in the judiciary is to produce competitively excellent legal minds.

But presumably Sotomayor didn't run the symposium, she just took part in it.

Someone also pointed out that her parents, who came to the U.S. during World War II, were not "immigrants" in the usual sense because they were already U.S. citizens!  I'll break my usual fact checker's rule and quote Wikipedia:  "In 1917, the Jones-Shafroth Act granted Puerto Ricans U.S. citizenship . . .  As a result of their new U.S. citizenship, many Puerto Ricans were drafted into World War I and all subsequent wars with U.S. participation."

Then it turns out ethnicity is all about warm memories of special foods and music.  Right, that we can all appreciate.  That's about where it belongs.

Tension between melting pot and salad bowl?  Exactly.  And why is that a problem?  What's wrong with being a 100% American who likes pigs' intestines? . . . Okay, in American society it's also "struggle" that forges a minority ethnic identity.  Hate to say I told you so.

Tsk, she doesn't know you're not supposed to say "Afro-American" any more.

Spanish is so cumbersome, or should I say formal and flowery?  Have you ever noticed, in a bilingual sign, how much longer it takes in Spanish to say something like "No Smoking"?  The language requires her to say "Latino or Latina" every time.

Bean counting:  "Those numbers [on the judiciary] are grossly below our proportion of the population."  Hello, not a representative branch of government.  Naturally it will take a come-from-behind group longer to populate the highest echelons of the professions to roughly its percentage of the general population.  The concern should be for pushing, not pulling -- for improving education and aspiration at the lower levels, not engineering outcomes at the top.  But maybe she'll go ahead and say this.

Not so far.  More bean counting.  "Sort of shocking, isn't it?"  She sounds outcomes-focused, pro-affirmative action.

Now we're getting to the crux of it.  Paraphrasing Judge Cedarbaum:

Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote . . .

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.

Judge Sotomayor wonders "whether achieving that goal is possible in all or even in most cases," and "whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.

Sloppy expression; not at all clear whether she means the two sexes might have "basic differences in logic  and reasoning," an argument that some brain studies can be used to support, or whether she goes further and extends that same speculation to "races," which would be a real shocker. That way lies Leonard Jeffries, former head of Black Studies at New York's City College:

Blacks are "sun people," Jeffries explains, and whites are "ice people." New York Newsday quoted Jeffries as telling his students last year, "Our thesis is that the sun people, the African family of warm communal hope, meets an antithesis, the vision of ice people, Europeans, colonizers, oppressors, the cold, rigid element in world history." Jeffries believes melanin, the dark skin pigment, gives blacks intellectual and physical superiority over whites.

You wonder if there's a subtle strain of that kind of thinking in Sotomayor's key remark about the "wise Latina woman."

She acknowledges Stephen Carter's and Judith Resnik's point that the experiences, opinions, and voices of any group of people are not monolithic.  "No one person, judge or nominee will speak in a female or people of color voice."

Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration . . . [emphasis added]

No one would argue with the second bolded sentence, but the first -- realism or relativism?  Sotomayor's examples raise more questions than can be answered without knowing the particulars of cases:

The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.

Whoa, women judges have more "empathy" for criminal defendants?  Yikes.

In our private conversations, Judge 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.

So what?  Isn't that exactly as it should be?  The point is that even though the judges were all white males, they heard those advocates.  Call it empathy or call it justice.

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 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.

I am not so sure that I agree with that statement.  Minnow (or Minow) is the relativist who is helping Sotomayor to wriggle out of the law's aspiration to universality.  Some Republican senator should read Minow and then challenge Sotomayor with particular quotes.

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.

There it is in context, and I still can't tell whether she's talking about all cases or particularly about cases that involve "that life."  That question of mine remains unanswered, Maxwell.  Many of her following statements, though, seem uncontroversial:

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. . . .

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.  [OK, but tricky balance to be struck -- you can't aspire if you're too quick to accept.] 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.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.

That's intelligent -- it suggests that she will strive to be aware of her sympathies and biases, not to deny them but to see beyond them.  In the next breath, though, she's back to numbers and "representation," with its implication that only women can justly judge women, and so on.  Her argument is that it takes too long to educate and broaden everyone's imagination, and in the indefinite meantime, affirmative action/more proportional representation is the only way to assure justice for the historically oppressed:

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.

It's much like the argument in literature that you only have the right and ability to write about people like yourself.  There go Madame Bovary, Anna Karenina . . .

The link between imagination and justice -- now there's an interesting subject.