Sonia Sotomayor's 2001 Berkeley speech interpreted

Update: A new End Zone post, Sonia Sotomayor Rejects Lady Justice' Blindfold, cites Sotomayor's Berkeley 2001 statements about current and future Supreme Courts harboring racial and gender bigotry which stands a solid chance of affecting legal decisions. These Sotomayor quotes are not accidental asides or accidental misspeaks. Sotomayor's entire point is that some Justices do not care about other genders or races, and therefore are bigoted, and therefore a racial and gender blend of Justices must be in place to counterbalance (via power of numbers) such unavoidable bigotry. In Sotomayor's formulation, racial and gender blending is necessary, because bigotry exists.

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I read Sonia Sotomayor's 2001 Berkeley Latina vs. White Man speech. She is, in some cases, reticent to directly state her opinions, and therefore encircles her opinions with all manner of hints which fall just short of being forthright statement of opinion. Rather than excerpting her meandering paragraphs, I'm going to cut to the chase of what she was variously overtly and covertly saying. Believe me, you are thankful.

Ms. Sotomayor proceeds from a premise that truth is relative; to implication that America - including the SCOTUS - is significantly bigoted, and is plagued with rigidly doctrinaire principles and values; to assertion that women and people of color would be less bigoted than white males; to a conclusion that an affirmative action salad bowl of many ingredients is a requirement for achieving justice.

This was a written speech. This speech was later published in a law review. Law review procedure is to allow changes before publication. Sotomayor presented the major elements of this speech seven years before - in a speech she gave in 1994 (copy of the 1994 speech) - a speech from which she copied much exact phrasing for her 2001 speech. The 1994 speech included this: "I would hope a wise woman, with the richness of her experiences, would reach a better conclusion."

In the both speeches, Sonia Sotomayor promotes affirmative action above all else. Paraphrasing: Sotomayor says she is animated by her vision of changing America's wrongheaded, rigid and narrow-minded, white male principles and values. She sees the judiciary as a force for effecting needed social change. She is not as blunt as my paraphrase, yet that is what she is saying. She doesn't believe most judges are bigots, yet she believes a significant enough number are.

Judge Sotomayor explicitly promotes multi ethnicity and gender as a necessary condition for achieving justice. To her, racial and gender and cultural understanding must be present on a court before any resume excellence may take precedence in the selection of nominees. Such understanding is only available, in significant heft, if actual racial and gender representatives are either on the court, or are represented amongst a petitioner's legal team (in order to facilitate explanation of racial, cultural and gender oppression to a significantly clueless Judiciary). One wonders if Ms. Sotomayor believes an Eskimo's civil rights are likely to be effectively understood and defended before the SCOTUS by a white lawyer? Must a transgendered American Indian be represented before the SCOTUS by a transgendered American Indian? Must a paralyzed Hindu be represented by a paralyzed Hindu? Maybe we should expand SCOTUS to include 50 Justices? 100 Justices? 375 Justices? Would even 375 Justices be sufficient to properly understand all the various racial and gender and cultural and physical backgrounds of various petitioners before the SCOTUS?

Judge Sotomayor promotes women and minorities moving into the judiciary in greater numbers - which is wonderful. Not so wonderful is her fuzzy reasoning: women judges and minority judges push bigots out of the judiciary. She makes the fundamentally racist assumption that whites are bigoted more often than non-whites; she makes the fundamentally sexist assumption that men are bigoted more often than women.

2001 Judge Sotomayor:

"[A]s a group we [women and persons of color] will have an effect on the development of the law and on judging.

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women.

I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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."

"[O]ur gender and national origins may and will make a difference in our judging."

A shocking statement. A philosophy which can ruin a nation. Consider: How do citizens then know what the law is? A citizen must follow one law if their Federal and SCOTUS judiciary will be of one one racial and gender composition, and another law if their Federal and SCOTUS judiciary will be of different racial and gender composition. Citizens are forced to follow the composition of the various judiciaries as they follow the composition of the Boston Red Sox line up, only with more attention paid to race and to cultural heritage. Is David Ortiz' heritage African, Cuban, Dominican, or Venezuelan? It would make a difference in the way Judge David Ortiz would rule about the law. Are David Ortiz' parents of different cultural heritage? It would make a difference in the rulings of Judge David Ortiz. Was David Ortiz raised in the U.S. or outside the U.S.? It would make a difference in the relative and shifting truth of the law.

Even after studying all this information, citizens would still only be guessing about the composition of constantly fluctuating laws which are dispensed artfully and relatively, as opposed to clearly and distinctly.

"[T]here can never be a universal definition of wise...."

There is, however, a right and wrong conclusion about whether or not a particular American's rights have been violated. Justices may disagree, but only one side will be righteous and correct. A wise old man and a wise old woman will reach the same conclusion about whether or not rights have been violated. If either of the old man or old woman reach the wrong conclusion: then that old person is, in this instance, not so wise. Only one conclusion is right. A is A. By definition, civil rights either have or have not been violated.

Ms. Sotomayor is trying to argue that truth is relative: that truth is one thing to a Latina, another thing to a white male.

It may be correct that consciousness of truth is relative, yet truth itself is separate from consciousness about it. Truth exists. In the case of a civil right: either a violation occurred or it did not. Only one conclusion is correct. There can be and are disagreements as to what is the correct conclusion - yet both opinions cannot be correct. Objective truth exists, even if some Justices cannot ascertain it.

2001 Ms. Sotomayor believes she is required to judge when her prejudices ought and ought not appropriately be inserted into her decision-making. Also, she hopes she can make best decisions, even though best decisions are significantly based upon cultural and gender understanding. Morality is relative; is not based upon bedrock legal principle:

"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.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering."

Ms. Sotomayor proceeds from a premise that truth is relative; to implication that America - including the SCOTUS - is significantly bigoted, and is plagued with rigidly doctrinaire principles and values; to assertion that women and people of color would be less bigoted than white males; to a conclusion that an affirmative action salad bowl of many ingredients is a requirement for achieving justice.

Mary Graber is funny: Ms. Sotomayor is that annoying college professor you thought you had escaped forever - but now she's back in your life.

Andy McCarthy says Sotomayor would be bounced out of a jury pool for cause:

Would Judge Sotomayor be qualified to serve as a juror? Let's say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to "transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law"; and that there are "basic differences" in the way people "of color" exercise "logic and reasoning." If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?

Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?

Victor Davis Hanson is relevant and excellent:

Modern day labyrinth of race makes affirmative action impossible.