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The White House is now claiming that critics are taking Judge Sotomayor's comments in that speech out of context. So in the spirit of "you read, you decide" I am linking here to Judge Sotomayor's speech in full.
As you read it, see if you agree with those respected legal scholars who have concluded that the speech as a whole isn't as damaging as the Judge's "wise Latina" comment -- it's worse.
But, of course, there aren't any "respected legal scholars". The link goes to an op-ed by Steve Chapman--a columnist and editorial writer for the Chicago Tribune--that's yet another hodge-podge of assertion and accusation, without any analysis worth speaking of.
Chapman can cut and paste, I'll give him that much. But he's not a respected legal scholar, and he hasn't even presented a respectable lay analysis, such as I presented in my diary, "What Sotomayor ACTUALLY Said, And Why No Apology Is Necessary". He makes no attempt to understand her argument-which is what's required in order to read something in context. Indeed, his inability--or unwillingness--to follow her argument is key to misrepresenting its subtleties as contradictions.
Here's how he starts off, when he finally turns his attention to the speech itself:
Anyone who reads the whole speech will indeed find that her comment wasn't as bad as it sounds. It was worse.
What is clear from the full text is that her claim to superior insight was not a casual aside or an exercise in devil's advocacy. On the contrary, it fit neatly into her overall argument, which was that the law can only benefit from the experiences and biases that female and minority judges bring with them.
Only that's just half her argument, at best, and a badly mangled version at that, since she nowhere praises anyone's biases and she repeatedly notes that white justices have made significant rulings. Her sin, it appears, is that she also notes who was making the arguments before them. Here's a passage from her speech that I quoted in my diary:
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.
But if Chapman were to present this "sin" honestly, nobody sane would buy his story for a minute. Instead, they'd say, "You know, she has a point." So he has to keep her actual argument hidden, while presenting a facsimile in its place. And that's just what he does.
In the good old days, white men could get away with this sort of shit every day of the week and twice on Sundays. No wonder conservatives look back longingly to the golden age of yore!
In short, in place of Sotomayor's description of the subtle tensions involved between striving for impartiality, and the reality of our different experiences that give each of us certain strengths as well as weaknesses, reflected through the presentation of different points of view of specific individuals, Chapman misrepresents her first as a one-sided enemy of objectivity and impartiality, and then attacks her as self-contradictory when he encounters clear proof in her own words that he has misrepresented her.
But don't just take my word for it. Let's take a look at his distortions as they unfold step-by-step. Continuing directly from above:
She clearly thinks impartiality is overrated. "The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others," she declared, a bit dismissively. She doesn't seem to think it's terribly important to try to meet the aspiration.
But Sotomayor isn't saying that impartiality is over-rated. She's saying that white males like Chapman tend to over-rate their own ability to be impartial, assuming it's something they can easily achieve, all the while being blind to their own prejudices and limitations, which we all have, in one form or another.
It's all too typical of a privileged white male to indulge himself in this sort of confusion. After all, privileged white males are the very embodiment of impartiality. Everyone knows that!
Nor does Sotomayor think it's not important to strive to overcome one's own particular viewpoint. She simply takes a realist point of view--those wise actors whose viewpoints have been traditionally excluded are more likely to contribute important new insights, even as they have to struggle not to be driven by unexamined factors that would distort their strivings toward impartiality.
That's apparent from the context. She said, "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging."
In more succinct terms: Sotomayor does not mind, and may even prefer, that the outcomes of cases are affected by the gender and race of the judge (at least when the judge is not white and male).
Here Chapman mistakes description for prescription. You're supposed to learn not to do that in high school. Freshman year in college at the very latest. Are all white males such dolts and slackers that they fail to learn this? Or just the conservatives?
Judge Cedarbaum, she noted, "believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law." Does Sotomayor share that noble sentiment? Not entirely.
"Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society [my emphasis]." Which comes alarmingly close to saying: It's impossible for female and minority judges to overcome their biases, and it would be a shame if they did.
"Alarming close" as in lightyears apart, and headed toward a different galaxy.
(A) She's saying that it's impossible for anyone to overcome their biases, even though we can and must try, and thereby manage to reduce them. This is a realistic view of human fallibility, and gives rise to the only realistic hope we have of overcoming bias, however partially: by recognizing that it exists.
(B) Given that it's impossible to overcome all our biases, she's saying it's a bad idea to pretend otherwise. Especially since there are special insights as well as blind spots that come with every particular sort of experience.
Seriously, this misreadings here are so bad, in such an elementary way, one has to wonder, how did this Chapman fellow graduate from college? Oh, right. The old boys club! Gentleman's Cs! White privilege! My bad!
Chapman continues, in full mind-reading mode:
Underlying all this is Sotomayor's suspicion that white male judges are bound to treat minorities and women unfairly.
Don't quit your day job, Chapman. Your mind-reading act needs a lot of work. Actual Sotomayor inner thoughts, per the very same speech:
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.
In short, it's not that they're incapable of fair treatment. Sotomayor is very clear about this, and only someone bent on willfully misreading her (a racist, perhaps?) could possibly miss this. But there is a problem, and it's hardly a mysterious one--or one that's limited to white males:
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.
This is where her words and those of Alito become hard to tell apart.
Back to Chapman, under the delusion that he's circling in for the kill:
She pointed out that "wise men like [Justice] Oliver Wendell Holmes and Justice [Benjamin] 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."
Sotomayor didn't seem to notice the damage she had just done to her own argument. The Supreme Court that upheld that gender discrimination claim was composed of nine men -- just as the court that ordered an end to racial segregation in public schools was all-white.
Which, of course, Sotomayor herself acknowledged in the section of her speech I quoted above and quoted in my earlier diary as well. Sotomayor isn't ignoring, much less running away from the fact that the Brown court was all white. But she insists on also pointing out that the lawyers arguing the case were not.
And it's her stubborn insistence on reflecting on all the evidence, rather than picking and choosing arbitrarily, that really drives Chapman and the rest of the rightwing racist crowd up a tree.
Newt included.
