Justice Nominee Sotomayor

By DogGone (guest writer),

President Obama's nominee for the Supreme Court has been accused of being a racist, a reverse racist, a bigot, stupid; probably by now, far worse. The accusations are based on a single quotation from Sotomayor's 2001 speech, "A Latina Judge's Voice", presented at the Judge Mario G. Olmos Law and Cultural Diversity Memorial Lecture. The purpose of this lecture series was "to perpetuate the Judge's abiding commitment to the development of law promoting equality and justice for all people. Judge Sotomayor has been one of a number of distinguished individuals who have been invited to be a speaker.

Reading Ms. Sotomayor's speech in its entirety, it is far less reasonable to present her as a racist (or reverse racist) or a bigot. The whole text is widely available on the internet to be read, by those who have an interest either in the topic, or in fundamental fairness. I was favorably impressed by the precision Ms. Sotomayor brought to her topic; she was not making vague general comments about the numbers of women, and the numbers of people of color or minority ethnicity in powerful judicial positions, she had a very clear understanding of the timeline of those positions, and where more or less progress had been made.

The controversial remark that has been the basis of the bigotry claims is "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." What is not addressed here is that it is in response to a quote variously attributed to Justice Sandra Day O'Connor or Justice Coyle, that "a wise old man and a wise old woman will reach the same conclusion in deciding cases." The essence of Judge Sotomayor's speech is to examine if this is a correct assumption, given the relatively small numbers over a brief period of time where women and minorities of race or ethnicity have had an impact. The full title of the seminar where Judge Sotomayor was speaking was ""Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation,"

The "struggle for representation" is the crux, the notion that representation is not a political idea unique to issues of taxation. It goes to the very heart of our concept of equality before the law, of being judged by our peers from the bench as well as by juries. Currently our judges are not usually representative of our demographics, in the proportion of men to women, or in the different backgrounds, race or ethnicity. Why should we care if our judges are more representational of our citizens? What difference does it make whether we have decisions made by a group composed entirely of old white men, or old white men with one or two white women in the mix, and one older person of color?

Looking at the history of some of the decisions by the Supreme Court, over time, provides the answers. For example, an excerpt from the language of the Dredd Scott decision, Dredd Scott v. Sanford, 1857 that slaves, African Americans, some who were actually bi-racial or multi-racial, were described as:"beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."

The court further argued, as a reason for not granting Scott the rights of a free man:

"It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." That decision was never legally overturned, but rather superseded by the Fourteenth Amendment in 1868, which resulted in citizenship regardless of race, a change to the original provisions of our Constitution. The decisions of our Supreme Court have not always been correct; neither are the provisions of our Constitution always perfect because they were written by the founding fathers of this country. Would having a more diverse composition of our Supreme Court guarantee us only correct, right rulings? Of course not, but it may, arguably, provide a greater variety of opinions to form and inform those decisions. It is to Judge Sotomayor's credit that in her very selectively quoted speech, what is not quoted as widely is the attempts at analysis to determine what differences women and people more racially diverse or ethnically diverse has had on our legal system and the pattern of legal decisions. Her expressed concern is for any difference to be a positive one for this country, and its citizens, by being thoughtful and critical of changes. She acknowledges the decisions, such as the legal decision that ended segregation, as having come from nine older white male justices. There is nothing in this speech to indicate that Sotomayor is a bigot or "reverse bigot" who is prejudiced against either men or Caucasians. There is no threat here; attempts to portray one, to create fear, is intentionally deceptive and manipulative.


As a lifelong resident of Minnesota, I was delighted to see that Judge Sotomayor singled out for mention our state Supreme Court, for having had for a period of time not only one woman justice, but more women than men, the only state to do so. We here in Minnesota should be proud of that fact. But more than presenting a laundry list of demographic statistics, Judge Sotomayer presented her own introspective thoughts on how we incorporate our differences, and when we should try not to be influenced by them, and the degree to which we can set aside those formative influences. Similar comments have been made by Supreme Court Justices in the past, including current sitting Supreme Court judges.

These ideas are not unique to Sotomayor; there are a number of influential jurists who have contributed to the concept of legal realism; some trace the legal philosophy all the way back to Oliver Wendell Holmes, and it has roots in Scandinavian legal thinking as well. Addressing ideas, including her own candid introspection, on the philosophy that individual qualities are involved in administering justice hardly makes Sotomayer a racist. I would argue that facing head on one's own possible prejudices, and evaluating their effect, is an exercise in great personal honesty; a greater honesty than many of Judge Sotomayer's critics have attempted in their accusations.

It would be a refreshing development if, in the course of Judge Sotomayer's confirmation hearing, we experience not only a discussion of her speech at the "Raising the Bar" seminar, but if we can raise the bar of political criticism to a higher level of intellectual integrity. As a Minnesotan, I can only speculate on the role our contested senate race might have on Sotomayor's confirmation vote. Our one Senator, Senator Klobuchar, sits on the Judiciary Committee. I can only hope that our contribution is as positive as our record for the Minnesota State Supreme Court.

(From Penigma: My thanks to DogGone for a well-researched, artfully argued, and elegantly persuasive presentation of the facts in play, both motivating President Obama to nominate Judge Sotomayor, and exposing the mendacity and shallow-thinking of the extreme right in attacking her in this way).