“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.” (Judge Sotomayor, 2001 Speech delivered at
the University of California, Berkeley, School of Law.)
Yes, you are reading this correctly. “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.” I could honestly care less if a Latina woman
feels she has more experience or has led a richer life than a white
male. She could be right.
Even if she is right in saying this, she is wrong in how she
displayed her angst. Imagine this hypothetical:
“I would hope that a wise white man with the richness of his
experiences would more often than not reach a better conclusion
than a Latina female who hasn’t lived that life.”
This is a disagreeable statement and poses a number of
problems.
Sonia Sotomayor, a federal judge on the U.S. Court of Appeals
for the Second Circuit since 1997, is a qualified candidate for the
Supreme Court opening. She has made many notable rulings,
including:
- A 1995 ruling where she issued an injunction preventing Major
League Baseball from using replacement players during the baseball
strike, subsequently ended the strike.
- New York Times Co. vs. Tasini, Sotomayor was the first judge to
hear this case and upheld the New York Times rights to publish
freelance journalists work in the LexusNexus database. The ruling
was later overturned by the court of appeals and upheld in the
Supreme Court.
- Castle Rock Entertainment Inc. vs. Carol Publishing Group. My
personal favorite. This was a copyright case involving a publisher
of a trivia book about Seinfeld (Carol Publishing) vs. the copy
right holder of Seinfeld (Castle Rock aka Rob Reiner). She,
rightfully so, upheld the rights of Rob Reiner and his Stephen
Kinq-esque Corporation.
So, this is all great and wonderful and I do truly appreciate
the time and effort she has put into serving our great judicial
enterprise. As a person, she should be proud of her culture,
heritage and life experience. No matter the race, religion or
creed, a person should be proud of where they came from, I do
believe this.
However, there is a huge difference between being proud of one’s
heritage and being hateful towards the heritage of other people. We
have her now famous quote, mentioned above and put here to remind
you how wonderful she is. “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 say, for fun, that I am a judge, and Sonia is on trial. I
have to decide what the hell she just said and make it clear, so no
misinterpretations can exist. First of all, this is what she is
hoping for; in an ideal world, according to Sonia, Latina woman
with the richness of her experiences would more often (more than
50% of the time) reach a better conclusion when compared to a white
male who hasn’t lived that life.
I get that.
First, find me one white male that has led the life of a Latina
woman. Would they start off as a Latina Woman and get a sex and
race change operation to become a White Male? Are they truly a
white male even after the surgery?
Let’s say she is right, and she knows a lot of ex-Latina Women
who are now White men, we can only take her at her word after
all.
Secondly, what is the better conclusion? A judge makes a
decision that they think is the better conclusion. Has a judge ever
made a decision that they thought had a worse conclusion? Not to
mention that this is completely relative to the other conclusions
that would be available, this could be limitless.
I wonder what she would say?
“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.”
There is nothing wrong with a person saying that they will make
decisions based on their life experiences, gender and heritage. I
would struggle to find any other judicial way to make a decision
not using these criteria. This is not what I care about.
In fact, many Supreme Court Justices have said damn-near the
exact same thing at their confirmation hearings. And make no
mistake, Sonia will be confirmed.
But she should not be confirmed. We live in a society that
prides itself on its multi-cultural identity and the ability of all
people to live in an accepting nation. A nation where even Clarence
Thomas can get confirmed after snorting cocaine with/on Anita
Hill.
Sonia should not be confirmed for one clear reason. She has a
prejudice that she has articulated during a major speech. She is
now backtracking because she wants to be appointed.
I will take you back to the hypothetical that I did not
analyze.
“I would hope that a wise white man with the richness of his
experiences would more often than not reach a better conclusion
than a Latina female who hasn’t lived that life.”
In our past we have accepted people for who they are. We would
rather have an ethically or morally ambivalent person do the job
then someone who would be different than the status quo which was
the white male. This was not right then and is not right now.
We need to pick the most qualified individual for the job, which
would have been Sonia Sotomayor if it weren’t for her foot being
crammed firmly in her mouth on one fateful evening in 2001.
See the full speech
here.
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