Bench Memos

Senator Kyl’s Questions re the ‘Wise Latina’ Speech

Senator Kyl was masterful. He’s exactly right that, from that speech, the critics have taken nothing out of context; rather, the context just makes everything worse. Her initial response to Senator Kyl’s thorough demonstration that the speech says judges will and should be influenced by their sex and ethnicity in their rulings was, not to deny that this is what the speech says, but that her jurisprudence belies this. I don’t think Frank Ricci would agree. Then she tries to suggest that the speech was descriptive rather than normative, and, what’s more, said only that sex and ethnicity might make a difference. Kyl then points out that, no, she really said they do make it a difference. And he agrees that, yes, they might — but this is not a good thing, and we should be on guard against it. But, he continues, you don’t say this is something to be on guard against: You say it’s a good thing. She concludes by saying, well, yes, maybe I should have chosen different words. I’m sure now she wishes she had — that is, hadn’t said what she really thought, which is that judges should practice identity politics.

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