Was Sotomayor’s Statement Racist?

My conclusion is yes, her statement was both racist and sexist. Here’s why.

According to CNN’s Political Ticker:

On Twitter, [Newt] Gingrich pointed to a line in Sotomayor’s 2001 speech to a Hispanic group in Berkeley that has drawn fire from some conservatives.

“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,” Sotomayor said in that speech, describing how life experience can inform judicial opinions.

On Wednesday, Gingrich tweeted: “Imagine a judicial nominee said ‘my experience as a white man makes me better than a latina woman.’ new racism is no better than old racism.”

Moments later, he followed up with the message: “White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.”

There ensues a 300+ comment battle, which I won’t get into here.

Is the comment racist? Orin Kerr, at The Volokh Conspiracy, provides quite a bit more of the speech and a link to the full text. The comments there are far more erudite, but you get much of the same opinions, only expressed in witty, or pedantic, or well-argued ways. (Plus, there’s a good discussion of the term and organization La Raza.)

While there are a number there who disagree with me, I don’t find the context helpful in understanding the line Gingrich quoted, although I’m glad to have read it. Sotomayor seems to believe she has an advantage in judgment in general over a white male based solely on her experiences as a latina. She assumes her experience is rich and that a white male’s would not be. This, on the face of it, is both racist and sexist.

Some argue that, surely, Sotomayor must have meant something like “in the context of minority or womens issues,” but nothing else in the speech indicates that. Some of her defenders focus on the experience issue, claiming that she meant an experienced Hispanic woman would be better than an inexperienced white male, but again, the experience of the white male isn’t addressed; it is simply assumed to be less rich than the Hispanic female’s because he is white and male.

Darren Hutchinson at his blog Dissenting Justice points out other places where other Supreme Court justices have noted that race and gender play a role in individual experience and judgment, and he concludes with:

Many of the examples this article provides of judges accepting the reality of race- and sex-based decision making within law concerns jurors. But court doctrines prevent judges from overturning or even inquiring about the basis of jury decisions in most instances. Accordingly, juries have a central role in law — particularly in criminal cases. Furthermore, it would take a lot of argumentation and empirical evidence to demonstrate that these same identity categories and experiences do not impact judges, and most of the evidence, where available, seems to confirm the opposite. In fact, Sotomayor’s speech cites to several empirical studies which demonstrate that in particular types of cases judges tend to reach different outcomes depending on their race or sex.

The reality of race and sex does not mean that judges discard judgment and analysis or that they abandon precedent and rely solely on force and power. Instead, Sotomayor’s position acknowledges what psychologists and sociologists deem as self-evident: Decision making takes place through a prism of experience. Having diversity, rather than homogeneity, actually permits judges to isolate “fact” from identity-based biases. I applaud Sotomayor’s honest reflection on this subject.

However, this was not the question. No one is arguing that race and gender are not part of one’s experience and that one uses one’s experiences in making judgments. The argument Sotomayor explicitly makes is that the experiences her race and gender have provided her should make her judgment better than a white male’s, and that’s where the racism and sexism come in.

I believe that diversity in general is useful, but I do not define diversity as limited to race and gender. Diversity in life experience is the valuable part of it. As R.S. McCain pointed out,* Obama could have added more diversity to the Supreme Court by nominating someone (dare I say a white male?) who received his or her degree from a state university rather than just one more Ivy Leaguer.

*This is in update 2 of a rather funny 6-update post entitled “What’s Wrong With the North Bronx?”

So, like, go on, then.

Update: I added the first two sentences above a few hours after posting this, giving my conclusion first.

Update 2: Gabriel Malor, a legal blogger who also blogs at Ace of Spades, writes:

Judge Sotomayor has given us no reason to believe she is capable of approaching cases involving white people or men without discriminating against them. In fact, she’s given several reasons to believe that the opposite is true.

The two most obvious are her 2001 Berkley speech, in which she extols the special knowledge she has by virtue of her membership in minority identity groups and admonishes male lawyers to “work on” their experiences and attitudes so that they too can reach the heights of “enlightenment” which belong to certain minority identity groups.

The second obvious example demonstrating that she might have a problem with racial bias is the New Haven firefighter case, Ricci v. DeStefano, in she and the other panel members tried to sweep their support of the city’s discriminatory acts under the rug. They failed and the Supreme Court will be issuing a decision by the end of the term.

Read the whole thing, as they say.

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5 Responses to “Was Sotomayor’s Statement Racist?”

  1. What those on both sides of the fence fail to realize is that it doesn’t matter whether or not this Appointee meant that she’d be able to judge a case, pertaining to minority issues or otherwise, better or worse than a white male. She has readily admitted that her personal experiences do and will continue to enter in to her decisions. This is unacceptable on the Supreme Court. Read the oath that Supreme Court Justices must take:

    “I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Supreme Court Justice under the Constitution and laws of the United States. So help me God.”

    Key words: WITHOUT RESPECT TO PERSONS, IMPARTIALLY

    She very clearly has admitted her belief that no one is capable of performing this duty. I believe that people are capable of performing this duty. Although our decisions in every-day life may be subject to the “prism” (as you eloquently offered) of our experiences, the job of a Supreme Court Justice is to interpret and enforce the Constitution, its amendments, as well as our country’s lawbooks. These duties must be performed from a colorblind and existentially nascent perspective with regard to each decision that is made. Sotomayor should not be allowed to attempt a job that she believes no one realistically can perform.

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  3. No her statement isn’t racist. Maybe a “wise latina” woman would make better decisions than a white man in some cases, maybe not. Either way who cares. You can’t prove a statement like that either way. I think that as a black woman who has lived in both the ghetto and the suburbs I could make better decisions on certain issues than a white man who hasn’t had those experiences or than a black man who hasn’t had those experiences. But that’s an opinion. Who cares whether I’m right. I think the only reason people are calling her statement racist is the fact that a white man couldn’t make the same statement and keep his job (which I actually think is an unfair but an unfortunate residual effect of the racist past of the US. As far as residual effects of racism go white men got off pretty easy. They should shut up and count their blessings) At any rate I’m sick of the misuse and overuse of the term racist, by people of all races. Everyone has preconceived notions about people of other races whether they admit it or not. So based on that everyone could be labeled racist. In my opinion in order for someone to deserve the label racist they have to actually deny someone something based solely on their race. There’s no record that shows that Sotomayor ever did that.

    • I have no problem with the idea that individual experience can give one better judgment in some cases, but that was not Sotomayor’s statement. Her statement was a blanket statement that a ‘wise latina’ would exercise better judgment than a white man. Since she didn’t qualify that claim, it implies in all cases. That is a racist and sexist attitude.

      Racism is a belief and it’s perfectly possible to be deeply racist and yet not take any significant action on it. If racism is tied to power, then the KKK is not a racist organization because it is highly marginalized in the US – it has no power.

      Your comment that white men have gotten off easy is both offensive and wrong. It implies that all white men are guilty and that is terribly false and also demonstrably wrong. There were always white men opposed to slavery and racial discrimination, but sadly they did not have the power to change things earlier. So, some white men got off easy, but many never deserved any punishment, and in fact many white men who fought against racism go unrecognized for it because they are white.

      Your attitude that white men should just shut up is both offensive and a significant part of the problem. How can we have a dialog if half the party just has to sit there and shut up? That doesn’t work at all, and the fact that white men are expected to just shut up is a HUGE factor in our lack of progress in race relations in the US.

      • You completely misinterpreted my statement just like you misinterpreted hers. Regarding my statement that white men got off easy I meant black people who were not even born during slavery or the hundreds of years after slavery when institutionalized racism was law still had to suffer repercussions at no fault of their own. Everyone has had to suffer repercussions as a result of the horrible and immoral institution that this country was built on. All I meant was that relative to the suffering of others, as a result of institutionalized racism, white men got off easier than others. I feel very little sympathy when they whine about something as minor as it not being socially acceptable for them to say certain things that people of other races can say.

        Now do I think Sotomayor’s statement was the wisest thing to say when you want a job in public service? Obviously not. But her making that statement doesn’t make her racist.

        Oh and to further correct you, her statement was:

        “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.”

        This is not a blanket statement that she would make better decisions than a white man. She’s talking about a white male who hasn’t lived that life…which would probably describe the vast majority of the white males who have held that position.

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