Phi Beta Cons

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More on Sotomayor


Supporters of Sonia Sotomayor are now saying that she made a poor choice of words when she posed the idea in a speech at a symposium of the Berkeley La Raza Law Journal in 2001 (and subsequently published in that journal in 2002), that a “wise Latina” would be a better judge than a white male without her life experience. But her remark is the kind of thing said all the time in the academy and law schools. Or, if it isn’t openly said, it is certainly assumed, and is part of what is meant by diversity, namely that there is no objective standard of law or justice, only points of view, and that the point of view of a “wise Latina” would convey more “empathy” than that of a cold-blooded white male. The implication is that the empathy would be toward poor, disadvantaged, and minority individuals, with which the white male — given the enormous wealth and inherited privilege from which white males generally come — could not sympathize.     But it is good to know that the American people are not so propagandized to servility toward minorities that they didn’t see the egregious violation of American ideals in that remark, and that Judge Sotomayor and President Obama and Senator Feinstein have been forced to backtrack at least a little in honor of the values they are sworn to uphold. Sotomayor could make such a remark with ease and even arrogance in an academic setting, but outside of that setting, there are still people who find it objectionable.       Looking more closely at the Berkeley speech, I see that Judge Sotomayor underscored the idea more than once and quite explicitly, and that she is as saturated with identity groupthink today as she was as an undergraduate. This is obvious in practically every sentence of the speech. For example, she disagrees with various individuals, among them women, who have said that we can transcend our prejudices and gender, racial, and national backgrounds in order to rise to a more objective standard of judgement. Instead, she quotes Prof. Martha Minnow of Harvard Law School, who states “there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging,”   Judge Sotomayor continues: “I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”   As a result of this view, she believes that it is important for more women and minorities to receive high-level bench appointments in order to reach a statistically substantial number for the differences in their judgments to have an effect on society as a whole. She claims that “enough people of color in enough cases, will make a difference in the process of judging.”    Also from her speech it is clear that she holds categorically that the proportion of Hispanics in any professional endeavor should be proportional, or at least more proportional, to their share of the population. She does not consider the fact that Hispanics have a high dropout rate and do not attend or graduate from college in proportion to their numbers.      In addition, she suggests that the different judgments on the part of Hispanics or Latinos may arise from “experience or inherent physiological or cultural differences.” She goes on to say that the idea of “inherent physiological or cultural differences” is ”a possibility” that she does not “abhor” or “discount,” as do many others, and she emphasizes again that “our gender and national origins may and will make a difference in our judging.” So Judge Sotomayor believes that there may well be ”physiological or cultural differences” in Latinos and I guess women that set them apart from whites and from men, and that will make a difference in their judgments.      (BTW, in the Berkeley speech Sotomayor refers to her parents as immigrants, an error that was picked up by the New York Times and then corrected. Is it possible that she didn’t know her parents were citizens?  Or is the Hispanic/Latino consciousness of recent decades so forceful that she turned her citizen parents into immigrants out of sympathy with her group?)  

Now, Judge Sotomayor does admit that white-male justices have often ruled in favor of minorities and  women, and she does admit there is always a danger in “relative morality,” but she sticks to her general view that there is no objective truth and that the aspiration to impartiality is only an aspiration and not possible in all or most cases. This raises serious questions about her ability to be a justice on the Supreme Court. It also suggests that affirmative action is not producing an integrated society, but a society of group consciousness much deeper and more profound than anything I have encountered before.


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