The Benefits of Perspective

by publius

There are several things about the 1970s that I regretfully missed out on – some of which were legal.  I am grateful, though, that I never had to endure the whining about “identity politics” in its heyday.  I assume people who still use the term today mean something more than “minorities are being appointed to stuff,” but I’m not exactly sure what that is.

Anyway, turning to Sotomayor, what’s interesting about accusations of identity politics is that they implicitly assume that whiteness (or maleness) is some sort of neutral baseline.  I call it the “invisible baseline” fallacy – and it’s certainly not a novel concept.  The idea is that people forget that whiteness is itself an ethnicity – and one that shapes and colors perceptions (and that enjoys entrenched benefits).  Instead, whiteness blends into the background and becomes part of an “invisible” baseline that is conceptualized as “normal.”

To be honest, the first time I actually understood the force of this argument was in my first-year criminal law class.  We were discussing traditional rape laws – and the professor began discussing some early feminist critiques of them.

Back in the day (and I’m working from memory here), some jurisdictions apparently required rape victims to establish that they had resisted the rape.  The idea was that resistance illustrated a lack of consent.

Feminists critiqued this requirement, however, noting that it wholly ignored the female’s perspective – in essence, the legislatures had imported a very male-centric view of life into the text of the rape laws.  For instance, in most rape cases, the male is physically stronger.  In these instances, requiring resistance is rather horrible policy because it risks even further violence. 

In short, the rape laws completely lacked perspective – and were the worse for it.  The feminist critique helped expose just how slanted the “normal” baseline assumptions were that informed these laws.  If the legislative drafters had been more diverse, it’s hard to imagine that these types of requirements would have ever been enacted.

But stepping back, even if you have problems with this example, the larger point is that diversity of perspective truly does have concrete value.  It’s simply impossible to get a full perspective on important legal issues if everyone is gazing through a white male prism.  Thurgood Marshall’s view of the Constitution and precedent, for instance, was undoubtedly colored by his direct observations of the law’s failures to protect equality.  He saw these failures up close – bravely representing black defendants in backwater Southern towns and putting himself in harm’s way.  It was critical for the Court to have this perspective when deciding, say, criminal procedure cases in the Jim Crow era.

So as the identity politics accusations heat up, remember that diversity of perspective is an important and valuable asset to such a powerful institution as the Supreme Court.  It's nothing to be defensive about. 

To point out Sotomayor’s experiences and personal characteristics isn’t some tired exercise of identity politics.  Those experiences are arguably the most important things she brings to the Court.  It’s easy to find an Ivy League-trained, very-smart appellate judge.  It’s much harder to find one who simultaneously brings Sotomayor's unique perspectives and experiences.

Comments

[d'd'd'dave]

How about we get a little diversity by dispensing with the Ivy-League trained part?

[Roger Moore]

How about we get a little diversity by dispensing with the Ivy-League trained part?

That looks easier said than done. I'm no expert, but it looks to me as though there's a very powerful old boys network involved. Ivy League Justices appoint Ivy League clerks. Those good clerk positions are a key leg up in getting further good appointments. Outsiders aren't likely to be able to break in unless we have some kind of affirmative action for non-Ivy Leaguers.

[Tom]

I suppose Obama could find someone who went to law school at Stanford or Chicago or Virginia. But why?

Something tells me that d'd'd wouldn't be any happier about the Texas-educated Diane Wood if she were the nominee.

[Gareth Wilson]

"diversity of perspective is an important and valuable asset to such a powerful institution as the Supreme Court"

Does this apply to evangelical Christians too? There aren't any on the Supreme Court at present and they certainly have a different perspective.

[Hartmut]

In theory you are right, Gareth. But 'conservative Christian' is already represented (although Catholic not Evangelical). If a conservative president finds a qualified one (that could be the tricky part given the nature of Liberty and Co.) then there should be no principled objection. One problem could be that a 'true' Evangelical would have difficulties to rule according to secular not divine law (since by definition the latter should rank higher with that person). A 'true' Evangelical would be honest about that and not seek the job in the first place (there are of course enough hacks and wishy-washy ones but that wouldn't rhyme with the 'qualified' part).

[Gareth Wilson]

Ok, forget the Evangelicals. What about Thomas Beall Griffith? He's a Appeals Court judge with much less experience than Sotomayor. But it isn't out of question that he could be nominated in the future. So does the fact that he's a Mormon make him a better nominee for the Supreme Court? There are no Mormons on the court either, and they're not just generic conservative Christians.

[JR]

I'm just thinking out loud here, and though I'm very sympathetic to court diversity I would also argue that many of the nation's most important steps forward via the court for minorities did not require diversity on the bench, as they too were decided by nothing by white men. So, I don't know... on and on it goes in my head.

[Hartmut]

I would not put all blame on FDR but I think diversity becomes ever more important since the court has ceased to be a neutral arbiter* in favor of becoming a (although sometimes unpredictable) political tool. Unfortunately we can't fill it with minor Laplacian demons (or even better: demons of the second kind**).
I would also propose to expand the court to 16 members (similar to the German model) in some nonpartisan way (i.e. not the way it is normally done). Those could be replaced by seniority one per year (with the most senior automatically chief justice perhaps?).

*not that it ever completely filled that role
**infallible about true and false claims but unable to influence them

[Brett Bellmore]

"The idea was that resistance illustrated a lack of consent."

Considering that the crime of rape is predicated entirely on a lack of consent, yeah, I can see why you'd want some evidence consent was lacking.

[Phil]

See, if "I told him no" isn't sufficient evidence for you, then what you're asking for is for women who have been raped to exhibit defensive wounds of some kind, or for the men who rape them to exhibit wounds as well. In other words, you're asking for rapes to be much more brutal, if not fatal. (After all, what kind of "evidence of resistance" would you expect a woman raped at knife- or gunpoint to exhibit?)

So, more brutal rapes -- is that really what you're in favor of, Brett?

[jonnybutter]

Considering that the crime of rape is predicated entirely on a lack of consent, yeah, I can see why you'd want some evidence consent was lacking.

Brett unwittingly exemplified the argument Pub was making. Funny as always.

Identity politics is still very much with us, except that it's taken so for granted we don't even notice. Exhibit a: HRC for President. Exhibit b: Barack Obama for President. Doesn't mean the outcomes are necessarily bad. And of course, it's the Right which indulges in the most flagrant identity politics of all, e.g.the white male 'baseline'.

Interesting to note that GOP presidents have routinely nominated candidates who are less than highly qualified (Kennedy, Thomas, Carswell, Haynesworth) but fulfill some politico-identity criterion. I guess Clown Shows don't *have* to make sense...

[von]

Assume that I agree with you on the benefits of diversity, Publius. (It's an easy assumption because, in fact, I do.) What of Sotomayor's comment regarding a "wise Latina" being a superior judge because she is a Latina? It's one thing to say that, hey, everyone brings something different to the table based on their experience, and we'd do well to have a variety of experiences represented. Because one's race and backgound can have a huge effect on one's experience, that makes race and background relevant when picking a judge. But Sotomayor's comment goes a great deal further. It is defensible?

[von]

See, if "I told him no" isn't sufficient evidence for you, then what you're asking for is for women who have been raped to exhibit defensive wounds of some kind, or for the men who rape them to exhibit wounds as well. In other words, you're asking for rapes to be much more brutal, if not fatal.

I don't know if that's entirely accurate, Phil, because you have to establish "I told him no" beyond a reasonable doubt. In the classic stranger rape, that might not be a problem. But these kinds of cases get into fuzzier areas of date and acquaintence rape, where prosecutions are much more difficult based on the woman's say-so alone. (Unfortunately but correctly so, in my view, to preserve the presumption of innocence and the need for the state to provide proof of criminality beyond a reasonable doubt.)

[Eric Martin]

"What of Sotomayor's comment regarding a "wise Latina" being a superior judge because she is a Latina?"

She was saying that she has a greater depth of knowledge on issues affecting Latinas by virtue of her background.

So, not a superior judge on all matters. Just on those to which she can offer personal insight.

[someotherdude]

Just a history lesson, concerning the value inherent, in being white:

Issues regarding race and racial identity as well as questions pertaining to property rights and ownership have been prominent in much public discourse in the United States. In this article, Professor Harris contributes to this discussion by positing that racial identity and property are deeply interrelated concepts. Professor Harris examines how whiteness, initially constructed as a form of racial identity, evolved into a form of property, historically and presently acknowledged and protected in American law. Professor Harris traces the origins of whiteness as property in the parallel systems of domination of Black and Native American peoples out of which were created racially contingent forms of property and property rights. Following the period of slavery and conquest, whiteness became the basis of racialized privilege - a type of status in which white racial identity provided the basis for allocating societal benefits both private and public in character. These arrangements were ratified and legitimated in law as a type of status property. Even as legal segregation was overturned, whiteness as property continued to serve as a barrier to effective change as the system of racial classification operated to protect entrenched power.

Next, Professor Harris examines how the concept of whiteness as property persists in current perceptions of racial identity, in the law's misperception of group identity and in the Court's reasoning and decisions in the arena of affirmative action. Professor Harris concludes by arguing that distortions in affirmative action doctrine can only be addressed by confronting and exposing the property interest in whiteness and by acknowledging the distributive justification and function of affirmative action as central to that task.

That's the abstract from a very influential paper:
Whiteness as Property

[hilzoy]

von: I might or might not write something about the Sotomayor speech later. But note: first, she was talking about discrimination cases, and second, what she actually said was that she hoped a wise Latina would reach a better decision, by virtue of her experience. The "I hope" part matters, I think: she absolutely did not say that a wise Latina would reach a better decision, period, but that she hoped that her experience would make her a better judge.

Is this somehow odd or objectionable?

[von]

Eric, that's not what Sotomyer said.

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.

Ta-Nehisi does a much better job than I could have pointing out what I regard as the fundamental flaw in that thinking: assuming that there is such a thing as a single "white" experience. http://ta-nehisicoates.theatlantic.com/archives/2009/05/about_that_wise_latina_statement.php

[Eric Martin]

Von,

But that is what she said. You just failed to provide the fuller context: discussing discrimination cases.

I agree with Coates' larger point about non-monolithic white maleness, but when issues relating to discrimination cases are involved, I believe Sotomayor is right about personal experience/immersion providing insight.

But I think it's a rather small point regardless. And I don't think Sotomayor would disagree.

[Eric Martin]

Also, what hilzoy said: "hoped" is a key word. Some more context:

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.

[mythago]

I can see why you'd want some evidence consent was lacking.

The "resistance" requirement was not about evidence. It was based on the notion that no decent woman would submit to rape without a fight, and that if given the choice between submitting in order to survive vs. dying trying to resist her attacker, she should choose death.

But you knew that. Funny how flexible some "law and order" types become when they think the bitch deserved it.

[publius]

von - rod dreher also thinks the line isn't all that troublesome in context.

[Sebastian]

I don't think that line is nearly as troublesome as the "Court of Appeals is where policy is made." line. My take on that is pretty much exactly that of Orin Kerr here

The impression I get is that she believes that court of appeals do make law, and properly so, but that some people out there don't understand this and you don't want to be on the record as expressing that position (even though it's correct). That's my best sense of what she's saying, at least.

It is an incredibly damaging point of view for our government in the long run, shared by many judges on both sides of the political aisle. If it weren't for the fact that pretty much any judge Obama nominates is going to believe that, I would oppose the nomination soley on those grounds. As it is, I would still like to explore exactly what kinds of policies she thinks judges are in charge of making.

[mythago]

I find it funny that conservatives take umbrage at that comment. If the courts are not where policy is made, when they do they try so darn hard to get conservatives appointed to the courts? Are conservatives really going to pretend that the Fourth Circuit is a model of unbiased, neutral decision-making?

[Sebastian]

Her description may be correct. Maybe courts really are where the policy gets made. I'm questioning whether such a description, if accurate, is good.

[gwangung]

"Her description may be correct. Maybe courts really are where the policy gets made. I'm questioning whether such a description, if accurate, is good."

And connect it to her own particular style (which may be something entirely different).

A number of people have been dsecribing her style as decisions being drawn as narrowly as possible, as grounded as much in precent as possible. That, I think, may throw a different light on that statement.

[von]

The "I hope" part matters, I think: she absolutely did not say that a wise Latina would reach a better decision, period, but that she hoped that her experience would make her a better judge.

Is this somehow odd or objectionable?

Yeah, I think it is. As Ta-Nehisi puts it better than I could, Sotomayor's statement buys into into the notion there being a culture and experience that is "white." That's just not true, as Ta-Nehisi explains. But there's additional problem that Ta-Nehisi doens't mention, which is that Sotomayor's reductionism also buys into the notion that there is an experience that is "Latina." There is no Latina experience: indeed, "Latina" doesn't even define a single cultural background.

The principle objections to the foregoing --i.e., the use of the word hope and the fact she was discussing discrimination cases -- are facially appealing but fundamentally flawed. First, the use of the aspirational "hope" does nothing to change Sotomayer's argument. If one were to write: "I hope that white folks are smarter than black folks", is the sentiment excused because it's expressed aspirationally rather than as established fact? Certainly not.

Second, the context of these remarks makes them appear worse to me, not better. Here's the preceeding paragraph:

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.

Not to take anything away from Justice Marshall, but it's extremely doubtful that the Supreme Court would have ruled the other way in Brown v. Board had the advocate been a white dude.

Finally, Dreher's comment highlights the weakness in Sotomayor's thinking. Dreher reads Sotomayor as stating that a justice should be capable of stepping into the shoes of the people before him or her -- and that's certainly an admirable quality in judges. But, reading these two paragraphs together, one sees that Sotomayor espouses a very limited view of this kind of empathy. Sotomayor discounts the ability of a "white" Supreme Court to step into the shoes of someone of a different race on the same kinds of issues. And, yes, it's difficult to step into the shoes of someone with a different set of experiences from you. But that's what we call on judges to do: It does no one any good that a "wise Latina" can more easily step into the shoes of other Latinas in a discrimination case, if she can't also can't step into the shoes of different kinds of folks in other kinds of discrimination cases (or other kinds of cases, generally).

Look, as my prior posts on race and the Republican party show, I am very much a beleiver in getting all the folks in the room. But it strikes me that Sotomayor's comment, here, reveals a fundamental error in her thinking .... which, ironically, diminishes the wide range of Latina experiences rather than embraces or enhances them.

[jonnybutter]

I can see why you'd want some evidence consent [for sex] was lacking.

If the assailant wasn't bit, then you must acquit.

[rikyrah]

Here's the thing for me. I believe that growing up in The Projects, in the Bronx, by a single mother, shapes your outlook about life differently. And, I welcome that perspective.

[Eric Martin]

"Not to take anything away from Justice Marshall, but it's extremely doubtful that the Supreme Court would have ruled the other way in Brown v. Board had the advocate been a white dude."

But it might have if some of the Justices were black!

[Eric Martin]

Which brings me to Adam Serwer, who is, IMHO, better on this than Coates. Here's why:

What people like Taylor find so offensive about Sotomayor's statement is that it properly exposes the perspective of white, Christian heterosexual men as specific to their experience, rather than the omniscient eye of G-d they're used to presenting it as. Does anyone seriously believe Dred Scott or Plessy v. Fergueson would have been upheld by any court that had the remotest idea of what it was like to be black or a slave? Or similarly that the court would have held in Minor v. Happersett that being a citizen didn't mean you had a right to vote if you were a woman? Do we really believe that judges in these cases were "simply upholding the law" in the absence of the cultural and social prejudices of their times?

[Kathie Brown]

As to Sebastian's worry about appeals courts making "policy," several commentors at other sites have explained what she was probably talking about at that moot court exercise with law students. She was, according to several lawyers who practice at the appeals court level, discussing policies regarding case acceptance, standing, legal procedures, and the like, which appeals courts are judging rather than the facts of cases they accept.

As to the supposedly racist nature of the wise Latina quote: the right wing types have certainly mastered quote-mining, since they picked a single sentence out of a much longer speech, for which other commentors here kindly supplied the context -- just the excerpts I had picked out myself this morning. She is addressing the difficult nature of assessing objectivity, difficult since objectivity necessarily involves assessing one's own subjectivity and its influence on judgments. Objectivity is much praised and little understood; and it is not synonymous with impersonality or anonymity. Who would want judges with no personal experiences, no knowledge of the world, to help them apply or interpret laws that are bearing on actual persons, not abstractions?

And, guys, get used to it, you're not alone at the top of the heap anymore.

[someotherdude]

Von,

Does Sotomayor discount their ability? Or maybe she believes the record of white men, has been spotty, at best.

Considering white men, in the legal system, anyway, have a predilection to protect their own group rights. Even though there is not one “white” experience, the consequences of the category of “white male” has had some profound material consequences. Aided, by the way, using our legal system.

[Eric Martin]

test

[someotherdude]

Von,
Does Sotomayor discount the ability? Or maybe she believes the record of white men, has not been spectacular.

Considering white men, in the legal system, anyway, have a predilection to protect their own group rights. Even though there is not one “white” experience, the consequences of the category of “white male” has had some profound material consequences.

[von]

Does anyone seriously believe Dred Scott or Plessy v. Fergueson would have been upheld by any court that had the remotest idea of what it was like to be black or a slave? Or similarly that the court would have held in Minor v. Happersett that being a citizen didn't mean you had a right to vote if you were a woman?

No, of course not. But that's not the argument.

As to the supposedly racist nature of the wise Latina quote: the right wing types have certainly mastered quote-mining, since they picked a single sentence out of a much longer speech, for which other commentors here kindly supplied the context -- just the excerpts I had picked out myself this morning.

You only get to play the quote-mining card if the context somehow changes the meaning of the quote. How does the context alter my (or Ta-Nehisi's, for that matter) analysis of Sotomayor's quote?

Who would want judges with no personal experiences, no knowledge of the world, to help them apply or interpret laws that are bearing on actual persons, not abstractions?

You do understand that my principle objection to Sotomayor's comment is that it reduces people to abstractions, right?

[Eric Martin]

von,

What Coates is missing - and you by extension - is that there doesn't have to be a monolithic "white" or "Latina" culture for there to be shared experiences that are prevalent within a given ethnic group.

Let's put it this way: Racism against blacks in America has persisted for quite some time, and its practice has been prevalent in "white" America and experienced in "black" America, despite the different cultural sub-groups within each larger group.

If someone said that a black nominee in the 1950s could offer special insight into discrimination against blacks - more than a white judge - would that person have been wrong since there is no monolithic "white" culture and "black" culture? I think not. Most likely - there are, of course, exceptions (see, ie, Thomas, Clarence).

[Sebastian]

"She was, according to several lawyers who practice at the appeals court level, discussing policies regarding case acceptance, standing, legal procedures, and the like, which appeals courts are judging rather than the facts of cases they accept."

I don't see it. You can get to the hour long clip from my volokh link. It seems to me that the immediate context is more about policy matters in general. Or to put it another way it doesn't seem to be limited to procedural policy. (If it were, her sort of embarassed gaffe response wouldn't have made sense because no one disputes that courts make court rules and the like).

[someotherdude]

"You do understand that my principle objection to Sotomayor's comment is that it reduces people to abstractions, right?"

Welcome to Western thinking.

[Eric Martin]

"No, of course not. But that's not the argument."

But it is: We're arguing about the extent to which a judge's personal experiences can provide insight into a particular issue.

Black judge might be more perceptive of racism. Latina judge, against anti-hispanic bias.

[Tony P.]

"You do understand that my principle objection to Sotomayor's comment is that it reduces people to abstractions, right?"

Assuming it's your principAL objection, I wonder how you define "abstractions". That is, doesn't the law deal in abstractions like "reasonable man", "economic actor", etc., all the time?

--TP

[hairshirthedonist]

As Ta-Nehisi puts it better than I could, Sotomayor's statement buys into into the notion there being a culture and experience that is "white." That's just not true, as Ta-Nehisi explains. But there's additional problem that Ta-Nehisi doens't mention, which is that Sotomayor's reductionism also buys into the notion that there is an experience that is "Latina." There is no Latina experience: indeed, "Latina" doesn't even define a single cultural background.

So, is Sotomayor, then, not Latina? If she is, in fact, Latina, have her personal experiences not been affected by that, regardless of whether or not there is ONE, MONOLITHIC Latina experience? Does being white affect ones experiences? I think she describes clearly enough why she hopes her personal experiences as a Latina might help her understand what others are up against such that there is no need to ponder the existence of a unique white or Latina experience. Nor does anything I've read suggest to me that her reasons for hoping her experience helpful in regard to understanding others would only apply to other Latinas. This all sounds like word pruning and verbal extrapolation to manufacture offense and portray bad thinking that isn't really there.

[tgirsch]

You do understand that my principle objection to Sotomayor's comment is that it reduces people to abstractions, right?

I dunno. It seems to me that the primary objection to the quote is that it dares to point out that cultural experience actually has historically had an impact on how cases were decided; that the purely objective ideal is often not lived up to when the rubber actually hits the road, and that cultural diversity would help address this problem by bringing a new perspective. This seems about as non-racist and non-controversial as anything I can imagine.

[russell]

"There is no Latina experience"

That's actually a point she makes in the speech.

"Not to take anything away from Justice Marshall, but it's extremely doubtful that the Supreme Court would have ruled the other way in Brown v. Board had the advocate been a white dude. "

Perhaps a more significant question is whether those cases would have ever been brought before the court if we relied solely on white dudes to bring them.

Latina women have different life experiences and a different understanding of things than white men. That difference in perspective will be reflected in the judgements they make on the bench. Having that different perspective on the bench will, net/net, be positive for the cause of justice.

As I make it out, that's the argument. Can't say if it's right or wrong, I think it depends on which Latina, and which bench.

But it hardly strikes me as an alarming or objectionable set of statements.

From the articles on SCOTUSblog, Sotomayor strikes me as sane, thoughtful, and reasonable, with a small-c conservative concept of the role and scope of the judiciary in setting policy.

That's my take.

[someotherdude]

"From the articles on SCOTUSblog, Sotomayor strikes me as sane, thoughtful, and reasonable, with a small-c conservative concept of the role and scope of the judiciary in setting policy."

And this is what pisses me off, that this nation has drifted soooo far to the right, I end up defending moderately conservative folks.

[von]

But it is: We're arguing about the extent to which a judge's personal experiences can provide insight into a particular issue.

Black judge might be more perceptive of racism. Latina judge, against anti-hispanic bias.

Experience is relevant. But we should recoil at the notion that "race" stands in for experience, that race is monolithic or that judges are better at their jobs because of their race. That goes double true when the "race" in question is recently constructed, as the White and Latino "races" are.

Sotomayor's comment regarding a wise Latina being a better judge than a white judge is most defensible if you put in a lot of qualifications that Sotomayor does not include in her comments--i.e., only on discrimination cases involving Latinas. I don't read Sotomayor as being so narrow. But even if you give her the benefit of the doubt in her prepared remarks, you still end up with a very reductionist view of what a judge can do. I certainly expect a Latina judge to be able to put herself into the shoes of a Latina defendant or plaintiff more easily than someone who isn't a Latina, but we don't hire judges for the "easy" identification jobs. We hire them for the hard ones: being able to put yourself into the shoes of someone quite different from yourself.

I don't think that this comment is a reason to disqualify Sotomayer, and I certainly do think that diversity on the bench is a good thing. Still, Sotomayer's thinking, as reflected in this comment, isn't praiseworthy or particularly wise.

(And: Principal, not principle, in my earlier comment above.)

[Sebastian]

"with a small-c conservative concept of the role and scope of the judiciary in setting policy."

What gives you that impression? I'd love for it to be true.

[Eric Martin]

"Sotomayor's comment regarding a wise Latina being a better judge than a white judge is most defensible if you put in a lot of qualifications that Sotomayor does not include in her comments--i.e., only on discrimination cases involving Latinas. I don't read Sotomayor as being so narrow."

But she does. Only if you cut off her quote do you not get the qualifiers. If you read it in full, they are there.

[hairshirthedonist]

But we should recoil at the notion that "race" stands in for experience, that race is monolithic or that judges are better at their jobs because of their race. That goes double true when the "race" in question is recently constructed, as the White and Latino "races" are.

What does this have to do with Sotomayor's statments in question?

[Eric Martin]

"But even if you give her the benefit of the doubt in her prepared remarks, you still end up with a very reductionist view of what a judge can do."

Not necessarily. As Sotomayor herself said in the same speech, she (as a judge) should be constantly challenging "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"

[Eric Martin]

Further:

"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."

I don't think she was being as reductionist as your are making her out to be actually.

Your being reductionist about her reductionism ;)

[gwangung]

"But we should recoil at the notion that "race" stands in for experience, that race is monolithic or that judges are better at their jobs because of their race."

I would equally recoil at the notion that there are no differences between white and Latino and that there is nothing useful to be gleaned by attempting to do so.

And I think you would have a losing argument if you tried to argue that the experience that Satomayor brings to the table through her personal and cultural background is not useful to the Court. Which is, as far as I can tell, is what she's arguing here.

[Eric Martin]

Samuel Alito:

"Because when a case comes before me involving, let's say, someone who is an immigrant - and we get an awful lot of immigration cases and naturalization cases - I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

[someotherdude]

Racial categories’ were created, in the United States, in relation to specific historical, political and judicial events. There is no one racial view, each European power organized ethnic groups within their Empires according to certain historical, political and judicial events, however “white” was consistently on top, while “black” is the bottom. Latin America didn’t escape that, however the history of the racial hierarchy in Brazil, Mexico or even Puerto Rico isn’t the question, the history of the racial hierarchy in the United States, is. Sotomayor’s experience with this racial hierarchy is quite specific. Her migration from Puerto Rico, at the time she did, would tell us of a story of an “imperial subject” experiencing the laws of racialization and social ordering in a very “special” way. This should not determine who becomes a judge, but it certainly says something about the way this nation is reevaluating the way we interpret “The Truth” as it is reflected in The Constitution.

[Turbulence]

I'm trying to understand the conservative argument regarding Sotomayor's speech. If the bit about her hope that a latina judge might be better than a white guy judge suggests that she has racist beliefs, is there any evidence of those beliefs demonstrated in her legal career? I mean, if Sotomayor really believes that Latinas make superior judges than old white guys, are there particular judgments she's made on the bench that reflect that view? Is she in the habit of only selecting Latina law clerks?

At the end of the day, the speech is only relevant insofar as it illuminates her strongly held beliefs. But strongly held beliefs usually affect behavior. If we can't find any practical negative consequences of Sotomayer's alleged beliefs, I'm much more inclined to think that we're reading too much into one tiny bit of text.

[russell]

"What gives you that impression?"

In Center for Reproductive Law and Policy v. Bush she denied the anti-abortion group's equal protection claim, holding that the government "is free to favor the anti-abortion position over the pro-choice position" with public funds.

In two Freedom Of Information Act cases (Tigue v. DOJ and Wood v. FBI) she declined to order the release of the requested information, explaining that she did not want to "unreasonably hamper agencies in their decision making".

In Hayden v. Pataki, she makes this comment in her dissent: "the duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created... But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test ... I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it."

She doesn't strike me as a judicial activist.

Those are all from the first page of hilzoy's SCOTUSblog cite. There are three or four more pages worth.

Her decisions all look, to me, like applying the law to the facts of the situation, rather than starting with a preferred result and using her office to achieve that.

It's a good summary and worth a read.

[d'd'd'dave]

//Something tells me that d'd'd wouldn't be any happier about the Texas-educated Diane Wood if she were the nominee.//

I have not said anything about Sotomayor.

[hairshirthedonist]

I'm much more inclined to think that we're reading too much into one tiny bit of text.

Who's "we?" (Or were you just trying to be nice?)

[Turbulence]

Who's "we?" (Or were you just trying to be nice?)

Just trying to be nice. It was that time of year again. Now to take my annual bath.

[Sebastian]

I like the Hayden quote, I can't imagine Marshall or Brennan even remotely feeling that way. I'll have to look at the FOI cases, I'm not sure what choosing not to release the information says without knowing more.

I like it when judges rule in ways that disagree with what they would prefer in policy outcomes. It shows they take the law seriously. You have to be suspicious when the law you read as a judge always turns out to be the law you want. (Ginsburg and Rehnquist may be recent examples of that)

[Gary Farber]

" And, yes, it's difficult to step into the shoes of someone with a different set of experiences from you. But that's what we call on judges to do...."

So is that what the eight male Justices did here, Von?

[gwangung]

" And, yes, it's difficult to step into the shoes of someone with a different set of experiences from you. But that's what we call on judges to do...."

But wouldn't be easier and less extrapolated to just ASK?

[deenk]

I might be a little more sympathetic to the arguments that "identity politics" shouldn't play a role in choosing a supreme court nominee, if the right wing talking points against her didn't boil down to "she's mean to white guys."

With all this horseshit there must be a pony around here somewhere. They're trying awfully hard to defend white male hegemony without calling it that explicitly.

[ScentOfViolets]

I don't know if that's entirely accurate, Phil, because you have to establish "I told him no" beyond a reasonable doubt. In the classic stranger rape, that might not be a problem.

Just to bring this up as a specific rather some of the vague generalities here, what about the 'she was asking for it' defense? Which is usually grounded in her sartorial ensemble? I'm no legal expert but as I was taught the lore, there was a time when a woman who wasn't buttoned up to the neck and encased down to her wrists and ankles in a stuffy, heavy, and rather bulky outfit was held to be 'asking for it', even in 90-degree plus weather.

I'm also told that this stopped being a useful defense around about the time women were allowed a little input into the system. Somehow, I find it hard to fault this degree of 'empathy'.

You have to be suspicious when the law you read as a judge always turns out to be the law you want. (Ginsburg and Rehnquist may be recent examples of that)

Posted by: Sebastian

I'm surprised you didn't pick some specific examples; me I always like to cite Bush vs Gore.

[von]

Eric, Alito's views, and some of Sotomayor's other comments, are perfectly in line with what I expect a judge to do. I agree with the notion that we want a diverse group of folks on the bench.* What I disagree with is Sotomayor's comment that a "wise Latina" is going to reach a better decision regarding what the law means than a "wise White dude" because she is a Latina.

I know you know this, Eric, but the nonlawyers in the audience should keep in mind that we don't usually ask judges -- and we never ask Supreme Court justices -- to weigh the facts. They are interpreting laws.

Put another way, I might have a different view of Sotomayer's "wise Latina" comment if it was about a juror in a particular context. I'd still find it reductionist, but less improper, because this kind of reductionism occurs all the time in society. But in a judge providing prepared remarks about the role of judging? I don't think so.

*There are legitimate questions, of course, whether the current SCt really is diverse, given that it would be 2/3 Catholic and a handful of law schools are represented.

[russell]

"the nonlawyers in the audience should keep in mind that we don't usually ask judges -- and we never ask Supreme Court justices -- to weigh the facts. They are interpreting laws."

I'm not a lawyer so you will have to explain this one to me.

How the hell do you "interpret laws" other than in the context of a particular set of facts?

SCOTUS and the other appellate courts exist to review decisions made by others. If I'm not mistaken, the question they are answering is not "what does the law mean?" in some abstract sense, it is "was the law correctly applied in this case".

I don't see how you can deal with the "in this case" part without weighing the facts.

Perhaps you can explain.

[Eric Martin]

Von,

But from the context, she didn't mean it the way you are portraying it. She was talking about particular insight given her heritage. The same way a black judge might have come to a different (better!) conclusion than a white judge with respect to Dred Scott. Or Plessy.

The same way Alito said that he would be influenced by his upbringing to weigh facts in an immigration case differently.

[Eric Martin]

By the way von, in the very next paragraph (that you seem to want to ignore), she explains that she must also constantly reassess her position because of the influence of her upbringing. In other words, her Latina upbringing might give her some special insight - at least she "hopes" it would, as she said explicitly - but still, judges must try to make sure that upbringing isn't exerting undue influence or prejudicing her/him.

[Sebastian]

"I'm surprised you didn't pick some specific examples; me I always like to cite Bush vs Gore."

I didn't pick out specific examples because I'm not really talking just about individual cases. It doesn't surprise me that sometimes judges find a conflict between how they want a case to turn out and what the law leans toward and they choose to stretch the law. It isn't good, but it doesn't surprise me. Judges are human. My point is that resisting that impulse ought to be a very strong part of judicial philosophy. Some judges don't seem to even try. (Marshall is the classic example. I'm not sure he changed at all from being an advocate once he became a judge).

[stonetools]

Marshall was partisan and an advocate. But then its interesting that you picked him as an example and not Rehnquist, who was just as unabashedly partisan and idealogical.
I guess as a white man, Rehnquist is naturally considered objective. Its all part of the privilege.

If you look at Justice Roberts, everything about his public life marks him as a partisan for conservative causes, including his Supreme Court decisions. Like Sotomayor, he too has empathy- only it's for big business, the majority, and the state.
Yet he is considered to be "objective"-whereas Sotomayor is a Latina woman who is too "empathetic". Its a ridiculous game, where conservatives are always "objective" and liberals are "bleeding hearts". lets not play it.

[Sebastian]

"Marshall was partisan and an advocate. But then its interesting that you picked him as an example and not Rehnquist, who was just as unabashedly partisan and idealogical.
I guess as a white man, Rehnquist is naturally considered objective. Its all part of the privilege."

Since I wrote: "You have to be suspicious when the law you read as a judge always turns out to be the law you want. (Ginsburg and Rehnquist may be recent examples of that)" I suspect that your intuition is wrong.