There’s been much thrashing about by the Republican Right in regards to Judge Sotomayor’s supposedly reverse-racist comments in 2001. Let’s look at those comments for a moment..
"I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life,"
I’m sorry. I don’t get it. She compared someone with experience in a matter, with someone without experience in that same matter. Is it racist now to say that you have experience in something you are supposed to be adjudicating? Remembering of course, that the detractors fail to mention that she was specifically referencing race and gender discrimination rulings before the courts..
Perhaps she meant this statement in the same tone that John Yoo, Bush-Era White House lawyer used when speaking about Supreme Court Justice, Clarence Thomas in October of 2007.
"This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him."
But that aside, let’s look at Sotomayor’s comments in context.
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.