NOTE: I wrote this diary Friday evening. After finishing it, I discovered that Newt Gingrich had gone all-in with full-throttle nutjob email attack on Sotomayor, all built upon the egregious mis-representation dealt with below. Rather than re-write this diary, I will follow up with a separate one dealing in detail with Newt's demented attack email.
The Ed Show started off Friday by calling it "a big mistake" that Obama was apologizing for one sentence by Sonia Sotomayor taken out of context from a 2001 speech, A Latina Judge's Voice. And Ed was absolutely right. Taken out of context, it can be used against her, and so some response could certainly be called for. But (1) there's all the difference in the world between an apology and clarification, and (2) as Ed pointed out, it should have been matched with harsh words for those who've been demonizing her--or, better yet, more subtly, praise for John Cornyn for repudiating Gingrich and Limbaugh for their demonizing attacks.
Before saying anything else, we need to be clear that this is the best attack point they have. And what is it? One sentence--discussing race and sex discrimination cases--that's part of a several paragraphs long argument that can't be fully understood in isolation. Which is why we will go through her argument on the flip. And yet, even though it can't be fully understood when quoted in isolation, it clearly is not what Gingrich, for example, is making it out to be.
Here is the sentence:
"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."
Remember, she's discussing race & gender cases, and she is expressing the hope that a wise Latina woman would reach a better conclusion in those sorts of cases, by virtue of her experiences. She is not expressing certainty, and she's not talking about all cases, but only about those concerning race and gender discrimination. Now here's the Wall Street Journal reporting on what Gingrich turned that into (immediately following their quote of the actual sentence):
"Imagine a judicial nominee said 'my experience as a white man makes me better than a Latina woman.' Wouldn't they have to withdraw?" asked former House Speaker Newt Gingrich on his Web site. "New racism is no better than old racism."
"Makes me better than"? Where did Sotomayor say that? It's obvious she did not.
And for anyone who's paid attention to Gingrich over the years, this sort of sloppy, self-serving misreading of others is just par for the course. He's an incredibly bad listener. But to really understand how far off the mark he is (and he's not the only one), we need to read Sotomayor's remarks in the context of at least several paragraphs, where she lays out different aspects of her thinking....
|I'm analyzing the segment of her speech from post at Media Matters, which clearly situates the discussion in terms of actual judicial history. However, before this segment, Sotomayor cites specific studies showing that women as a group do tend to reach different conclusions--not monolithically, but measurably, and thus they have a group impact on the law. Meaning, of course, that men do as well:
As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.
Thus, her entire orientation in this speech is one that's grounded in facts, even as those facts reveal aspects of the general point that no set of facts will appear exactly the same to all observers. Here, then, the passage quoted in Media Matters begins:
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.
This much is incontrovertable historical fact, and it acknowledges the capacity for overcoming race and gender perspectives, even as it points to the historical limitations as well: White males did make the crucial judicial decisions, but only after blacks and women made the crucial arguments. That's not just Sotomayor's opinion. That's what actually happened.
Next, she says something that many, many others have said--that who we are affects how we act--and contrasts this viewpoint with some others:
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.
First note that this entire paragraph, expanding on the one before it, unfolds as a multi-person, multi-perspective dialogue--and a rather densely-packed dialogue at that. Furthermore, Sotomayor phrases the later part of this paragraph in terms of questioning, rather than asserting, further deepening the dialogic flavor, "I am also not so sure that I agree..." The first part of what she's framed in terms of potential disagreement is the questioning of the notion of a universal wisdom, common to all--and there is a substantial literature to back up Minnow's point, both within and beyond the legal literature. The second part is, in effect, questioning whether the experience of suffering discrimination might not hold out the legitimate hope of making better decisions as a result of having that experience--just as we might all hope to make better choices based on our own particular experience.
It's important to realize that the two points Sotomayor has raised have the exact opposite effect of that which Gingrich asserted. Gingrich is assuming, contra Minnow, that there is only one, universal form or standard of wisdom, which is why he can sloppily slip from Sotomayor's hope to excel where she and others like her have particular experience to a claim of absolute superiority. But Sotomayor is considering exactly the opposite of this loigic: because of Minnow's point, the possibility that Latina women like Sotomayor might make better use of their unique experience need not detract from the wisdom of others, it might simply be part of what defines differences in their wisdom. And, indeed, this understanding of what she is saying fits perfectly with what she says next, and the points she goes on to develop:
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.
More indisputable historical fact. It's so unfair when she takes advantage of reality's well-known left-wing bias like that, don't you think?
I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
Wow! Talk about racist, huh?
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.
Clearly, the meaning of that one sentence Sotomayor's attackers have jumped all over cannot be extracted from the entire passage I have quoted from. Did that sentence actually assert universal superiority, which is the essential claim being made against her?
No. Not in a million years.
Was it part of a flow of ideas seeking to distinguish differences and illuminate their possible impacts, accounting for past history without making any dogmatic assertions about what must be?
Yes, precisely. That's exactly what she was doing. And if you ask me, she has nothing to apologize for in what she said. In fact, she ought to be proud.
It's hard enough to accurately, subtly and forcefully communicate about such mattes in such a condensed manner. Add the requirement that you express yourself in a way that no one can possibly misinterpret you, and the only alternative left is silence.
Which is, of course, precisely what Sotomayor's attackers really had in mind all along.
As I said: No apology necessary.
At least not from Sotomayor.
But from Gingrich, Limbaugh and all those other rightwing clowns? Yes, I do believe an apology is due from them. Not that I think we're ever going to hear one. After all, being a conservative blowhard means never having to say you're sorry.
One final point: this sort of routine, casual misinterpretation is part of the living legacy of white supremacy and male supremacy that's still very much alive and well at the heart of movement conservatism. If you think you're superior to everyone else, then it doesn't matter what they say, all that matters is what you say they say. And this, of course, is the essence of all forms of supremacist thinking--you alone have the right to define reality for everyone else.
No dialogue necessary.
There's a reason they're called dictators. Not listeners. And it's the same reason they're such utter fools.
And, yes, Virginia, racists, too.