Saturday, May 30, 2009

She said one thing - I suppose in her whole adult life - that the crazies of the GOP have to hold on to. You've heard it by now, but here it is:
...a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male...
This statement alone - given in 2001 - has been used by Newt, Rush, et al to brand her as "racist", "un-American", "hateful", and the like.

I read the whole speech finally (so you don't have to, though I recommend it) aiming to demonstrate for myself how the statement has been misconstrued and doesn't really mean what it sounds like it means. You know, the famous out-of-context quote (as if there is another way to quote...). I have to say though that the facial meaning of the statement is not all that far off from what she seemed to have been trying to say, a point she made with remarkable thoughtfulness and admissions of uncertainty. This is an intelligent person, trying to think earnestly about the relationship between one's personal and cultural heritage, and the impact that may have on one's judgment.

As for the statement itself, one thing we can't do is brush this aside as a thoughtless sentence made off the cuff. We've all said stuff out loud we don't mean, don't believe, etc. Sotomayor's was a prestigious lecture - with presumably prepared remarks - given in honor of a famed, apparently, Latino judge at a conference on Latino/Latina "presence on the judiciary".

So what was her point, that being a Hispanic woman makes her smarter than white men? Obviously, no. Or at least, not quite. First things first, let's open the lens a tiny bit and quote the whole sentence:
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.
Two things: one ("I would hope"), it is a statement of aspiration, not a confident assertion of racial superiority. Second, and more importantly ("who hasn't lived that life"), her equation emphasizes differences in life experience, moreso than differences purely in ethnicity.

Elsewhere in the speech, it is evident that she believes this impact to be very much behind-the-scenes in the psyche, not that she believes judges should consult an internal WWHD (what would Hispanics do?) in reaching each decision.
Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

And beyond that, she clearly believes this "richness of experience" is only a positive when it is watched.
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.
There is no neutral perspective. Given that, she seems to be saying, the justice we seek - and the justice America demands - is better, and more readily, served by a judge whose life is rich in experience, not because it makes them smarter, or more just in itself - no, in fact, experience most of all leads to "limitations" that may become "assumptions, presumptions and perspectives" that require "complete vigilance in checking". But what rich experience does is make the essential tasks of good judging more likely.
[T]o 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.
This is a weighty and important discussion - the role of culture and personal experience in our enactments of judgment. It's a shame it's been reduced to such a cartoonish debate over whether she is, seriously, a "liberal David Duke" for uttering it. And I can only anticipate she will be distancing herself from these issues as much as possible - interpreting it in the most antiseptic way possible - in her confirmation hearing. But in actuality it was a bold speech in the questions she was clearly wrestling with. Mostly, though they are presented as questions and hopes. She seems confident only about one thing: our differences impact the way we view the law and apply it. She doesn't pretend to know how, to what extent, or entirely what should be done about it, or even what can be done about it, but it's a fact that she believes shouldn't be ignored. A more proportional diverse judiciary, she says, would give us large enough samples to find out how the law is changing as a result.

The controversial conclusion that frankly can be drawn is that she's at least open to the idea that being a white male brings with it inherent cultural limitations that are less easily overcome (presumably because of a common lack of interest in doing that work), and that left to our own devices white males would not have made critical advances in American justice for all. Yes, she says, Brown v Board of Education was decided by 9 white men, but it was argued by Thurgood Marshall and the NAACP. Yes, advances in women's rights were stamped by all white male supreme courts, but thanks should be given to attorneys like now-justice Ginsburg for showing the way and essentially demanding a moment of empathy.

Wouldn't it be great if the Senate could have a serious debate about such an issue as whether the law (or anything) can be read and applied with a perspective of objectivity? And whether or not, if the answer is no, we should just pretend we can? Are these acknowledgments better left to the academics and out of public view? This question of empathy is essential to justice, but how does a judge's ability on that score rank as compared to abilities in logic, and how are those 2 qualities related?

It could have led to a pretty interesting discussion if we had serious thinkers in charge who, I guess, didn't care about staying in charge. Until I read her speech though I wasn't aware just how directly that conversation was being invited by her selection. We'll see how willing the White House is to let her engage the topic when she faces the all-white-male Senate Judiciary committee later this summer. It will be interesting to see just how completely she disavows the remark.

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