Defending Sotomayor Sotto Voce

I'm sure she'll be an activist disaster: surely the first thing the President asked Judge Sotomayor was her opinion of Roe, etc. And this firefighter case everyone's crowing about looks bad, and some lawyers don't like her and her opinions are bad and tend to get overturned on appeal.


Nevertheless, a sense of fair play compels me to point out that this remark about which everyone is hyperventilating
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.
looks quite different in context. In context, all she said was it's foolish to think we're not shaped by our heritage and experiences, and judges should be aware of their limitations so as to stretch beyond them if they can. Some excerpts, emphases mine:
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 because we were described then "as not capable of reasoning or thinking logically" but instead of "acting intuitively." I am quoting adjectives that were bandied around famously during the suffragettes' movement. 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. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.
[snip] Here comes the part with the offending quotation:

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.

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. 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.

What she says here is intellectually untenable. But I think it's unfair to call her a racist, at least based on this speech.

I also think the "court of appeals is where policy is made" statement is being used unfairly. She was speaking to law students about what positions they should seek and describing the difference in practice.

SOTOMAYOR: The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm -- you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating -- its interpretation, its application. And Judge Lucero is right. I often explain to people, when you're on the district court, you're looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law. You can make a choice and say, "I don't care about the next step," and sometimes we do. Or sometimes we say, "We'll worry about that when we get to it" -- look at what the Supreme Court just did. But the point is that that's the differences -- the practical differences in the two experiences are the district court is controlled chaos and not so controlled most of the time.

It would take more than that to convince me she was a wild-eyed radical. Not saying she isn't: Ed Whalen thinks so and that's good enough for me. I'm only saying all the comment proves is she's a conventional thinker.

She managed to apply the law fairly in a case involving the Mexico City policy --enough to cause the pro-abort groups to greet her nomination with caution. There's no chance in hell she's pro-life, but on at least one occasion she fairly interpreted the law instead of legislating from the bench.

So: I am waiting to read a few more of her opinions before hating her guts, am enjoying the idea of the lady groups sweating just a wee bit, and wish the activists would knock off the cheap shots when there are so many substantive ones to be had.

One thing I like about her? She's a lapsed Catholic and has the decency to admit it. The White House says of her:

Judge Sotomayor was raised as a Catholic and attends church for family celebrations and other important events.
Praise the Lord, no one is going to tell us she's "ardent."

Update: At No Left Turns, Richard Adams (see Julie Ponzi's comment, too) thinks Republicans should seize this as a teaching moment rather than ragging on the nominee. Same message from Peter Wehner & Charles Krauthammer. Wehner writes after observing some of the same things I did about the Right's response to Sotomayor:

Strong, spirited, even passionate debate can be useful, and even important, in the life of a nation. But civility and decency are vital as well. And as Noemie Emery pointed out in her excellent Weekly Standard article, “Reagan in Opposition: The Lessons of 1977,” “his tone was unfailingly gracious and civil, and focused on issues, not men. He did not oppose for the sake of opposing. He criticized Carter’s ideas, but seldom the man, and he almost never uttered the president’s name.”

Reagan sought to persuade people, not annihilate them. His arguments were forceful; his restraint, admirable. And of course the model for Republicans is Lincoln, the country’s greatest President, of whom it was said at the time, “The sledge hammer effect of his speech results from the … force of the argument of the logician, not the fierce gestures and loud rantings of the demagogue.”

It is unfair to hold up Reagan, and certainly Lincoln, as standard-bearers who are within easy reach of the rest of us. None of us measure up to either man. And in the modern age, with blogs, twitter, and all the rest, it is easy to write in an unfiltered way, to send things out that one would like to have back. Still, we need to stay on the right side of the line when it comes to public discourse. Reagan and Lincoln are models we should continue to look up to, and emulate.