Sotomayor isn't a racist--but she is wrong

Predictably, Sonia Sotomayor's nomination has provoked a firestorm from the right, especially from the contingent of politicians, former politicians, and pundits who have decided that the Republican party's losses in the past few elections are a result of failure to adhere to a far-right and uncompromising ideology. Two of Sotomayor's comments have especially raised the ire of conservatives: her statement during a 2001 speech at Duke University that "policy is made" by appellate courts, and her belief expressed during a 2006 speech at Berkeley that "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."

Conservative outrage over the first comment is wrongheaded; anyone with even a rudimentary understanding of the American legal system knows the appellate courts do should be fully aware that legal policy is, indeed, made by Appellate Courts, fulfilling a role that is as old as the country. I suspect a lot of conservative commentators do know this, and accusations of judicial activism are aimed mainly at their base.

But the second statement, regarding ethnicity, is harder to defend, though plenty of liberal pundits and politicians have tried. There has been little criticism from the left on the comments, and there should be; it is basically an attack on one of liberalism's core values. As of this moment, Judge Sotomayor has not publicly addressed her "better" comment. Some senators who have privately interviewed her have described her explaining her speech as a whole and have stated that she pledged not to use them again. However, neither her nor her supporters in the Senate have stated whether they were an actual mistake or not. And even more problematic is the fact that this may not have been a a one-time event. If she has repeated those lines before, she has a bigger uphill fight to disavow them.

Most of the defenders of Judge Sotomayor's comments accuse her critics of failing to take the comment in regards to the speech as a whole. However, I've read the full speech, and to be honest the comments don't get any more palatable. In the speech she makes a very reasonable argument on how her background informs her legal decision-making. But different doesn't imply better, and it's not until she comes to the statement that she would hope to come to a "better" decision because of her background that doesn't really fit into the speech. It is most of the left's refusal to address this single issue--in fact, this single word--that is alternately puzzling and irritating. Few are disputing that her speech rightly argues that a judge should aspire to neutrality, or that one of the central points of her argument is that a judge's background will influence their decision-making. In fact, in that very speech she presents statistical evidence on how judges' racial and ethnic identities correlate to differences in the decisions they arrive at. But in saying that she would hope her latina background would lead her to better decisions than a white, male colleague, she is saying something that goes beyond the rest of the speech.

In fact, it is difficult to really parse that line precisely because it doesn't fit the speech as a whole. What part of her experiences did she think would give her more judicial insight into the cases that came before her? Impoverished backgrounds are not limited to latinas; I am sure there have been plenty of white, male judges, especially children of the depression, who faced worse poverty than Judge Sotomayor, men whose parents couldn't even afford the encyclopedias Judge Sotomayor's mother scrimped and saved for. And poverty doesn't automatically breed wisdom, and adversity is not a guarantor of insight. Judge Sotomayor freely admits in the same speech that white, male judges

If those hypothetical better decisions as a result of "richness of her experience" extend beyond poverty to her ethnicity, is is even more problematic. Judge Sotomayor speaks fondly in her speech of a childhood in the South Bronx,and recounts vivid memories of the latina aspects of her childhood--the food, the games, the family. Is this the richness of experience she talks about in her speech? Platos de arroz, gandules, y pernil are no more or less rich than hamburgers or mashed potatoes, and the South Bronx is no more or less genuine than Maine or Idaho. There is a tendency among just about everyone, I think, to think there is something special about their upbringing, to think one's childhood memories, as strong as they are to the holder, must be unique--and the "right" way to be brought up.

Judge Sotomayor did come from a humble and impoverished background that should inform her judicial decision-making. But this background is neither superior nor inferior to the background of a white, male judge from a more privileged background. Neither is it a guarantee of a higher degree of empathy; Justice Clarence Thomas came from an even more disadvantaged background than Judge Sotomayor, but many who vehemently support Judge Sotomayor's nomination would balk at called Justice Thomas possessed of a higher degree of wisdom or empathy than his white, male colleagues on the bench. There is no correlation between ethnicity and "wisdom"; just like there is none between ethnicity and intelligence, or morality, or spirituality.

The best defense raised by Judge Sotomayor's defenders is to point out her record. Judge Sotomayor has a long and distinguished history as a trial and appellate judge. I have seen nothing in her record to indicate that a white man wouldn't be just as fairly treated as a member of a minority and/or woman in Judge Sotomayor's court; on the contrary, others have pointed out that she has routinely found against plaintiffs in racial discrimination cases. On her record she should be confirmed; but I think she has the moral responsibility to say just what she meant in that speech. This comment (or these comments, if she's made them before) are not something I want to hear from a Supreme Court justice. And the oftentimes angry and fanatical defense of her comments from the left is just wrong. Equality is one of the left's most cherished platforms, and Judge Sotomayor's comments are not consistent with this platform.

The only major liberal or democratic voice that has seen fit to actually find a flaw with those remarks, is ironically the same man who nominated her for the Supreme Court. President Obama has stated he believes Judge Sotomayor misspoke, a statement that has raised ire in some quarters by those who steadfastly refuse to see anything wrong in Judge Sotomayor's speech. President Obama seems to be one of the few progressive voices out there who understand that self-criticism, either on an individual or group level, is a sign of strength rather than weakness. After watching the Republican party self-destruct largely because of its "party discipline" and refusal to honestly look at itself, you would think that the rest of those on the left would have learned something.