Published June 2, 2009
A lot of controversy has been generated by Judge Sonia Sotomayor's statement “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.” In an effort to repair the damage, President Obama's press secretary, Robert Gibbs, said, “Well, I think if you look at the context of the longer speech that she makes, I don't — I think what she says is very much common sense in terms of different experiences that different people have.”
Having decided to take Mr. Gibbs up on his challenge, I have read Judge Sotomayor's 2001 lecture, delivered at the University of California, Berkeley, School of Law. (It was later published in the Spring 2002 issue of the Berkeley La Raza Law Journal.) What is clear is that Ms. Sotomayor's locution wasn't simply a stray line or lazy formulation, as President Obama would have us believe. It was, instead, a line that perfectly captured a particular worldview. It acted as a capstone to an argument.
There are several important passages to analyze in Judge Sotomayor's lecture (which I will quote at length, to ensure the context is fair). They include this one:
While recognizing the potential effect of individual experiences on perception, Judge [Miriam] Cedarbaum nevertheless 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. 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. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School , in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought…. Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. 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. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.
And this one:
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.
And this one:
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. 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.
In reading her lecture — which I would urge everyone who comments on Judge Sotomayor to do — one gets the sense she has more or less given up on the notion of overcoming “sympathies and prejudices” to reach fairness and integrity “based on the reason of law.” The main thrust of her argument is to rebut the proposition put forth by Judge Cederbaum that there is danger in gender-based and ethnic-based judging. The “aspiration of impartiality” is just that, an aspiration — and a fanciful one to boot. Because our gender and national origins will have a profound effect on our judgment, we should simply accept those limitations. Nor is there is an “objective stance”; there is, rather, a “series of perspectives.” And according to Sotomayor, her Latina perspective is superior to all others.
This line of reasoning is at the core of identity politics, which is a step beyond the multiculturalism embraced by those on the Left. She takes a perfectly reasonable and obvious fact — we are all shaped by our experiences, therefore making perfect objectivity an impossible standard to meet — and seems to give up on the quest for impartiality. Since there is no “universal definition of wisdom,” then wisdom resides elsewhere, not in reason but in gender and culture, with particular minorities and in particular life experiences. It is actually a “disservice both to the law and society” to ignore our differences. This explains how she can say — indeed, it explains why she almost must say — “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.”
It should be added that the issue Judge Sotomayor identifies — our incapacity as individuals to ascertain Wisdom — has a solution in our judicial system, called common law. This is the notion that we rely on precedent and customs in order to determine what is just and fair. We do not look only to ourselves; we look to those who came before us. But Sotomayor appears to have little interest in such matters.
It is not simply that Judge Sotomayor's reasoning, at least as embodied in her UC Berkeley Lecture, would lead her to make up the law as she goes along. She believes that people of a particular ethnic experience are better able to make things up as they go along. In that sense, it is not “relative morality” she is advocating; it is identity politics. It means judging people, on the most important matters, by the color of their skin and by their particular ethnic origins — with some intrinsically better than others. It is, in other words, exactly what the American conception of justice, as embodied by its greatest exponents — from Lincoln to King — stood against.
President Obama picked a nominee who in a lecture and law journal essay proudly articulated the case for identity politics. If he were what he promised to be — forthcoming, candid, unwilling to play tired old political games — Obama would say so. Instead he pretends otherwise. This is not change we can believe in.
— Peter Wehner is a senior fellow at the Ethics and Public Policy
Center in Washington, D.C. He served in the Bush White House as director of the office of strategic initiatives.