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Wednesday, May 27, 2009

"Obama Picks Hispanic Judge for Supreme Court"

So ran the banner headline of today's New York Times, putting her primary qualification front and center.

Another headline on the web read, "Sotomayor Obvious Choice."

What makes Sonia Sotomayor so obvious? Her sex and ethnicity. The papers have been saying for weeks now that Obama would probably pick a woman or a Hispanic, possibly both, as David Souter's replacement. Obama's short list evidently consisted of four women. In the end he went with the Hispanic.

Sotomayor evidently concurs with Obama's criteria. She once said, "A wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white man who hasn't lived that life."

Let's analyze that statement.

Sotomayor is saying, first, that Hispanic women lead richer lives white men. But how, exactly? By eating more Mexican food? By listening to more salsa music? By knowing more native Spanish speakers? By reading more Gabriel Garcia Marquez? By growing up in a family with less money? By knowing more gang members? By enjoying sex in a female's body rather than in a male's? By having whites at Princeton assume she is the beneficiary of affirmative action?

It's certainly true that a Latina is more likely to have had that set of experiences than a white male. But a white male is equally likely to have experiences that a Latina doesn't. Such as playing chess, or lacrosse. Or listening to 60's rock music. Or reading Kurt Vonnegut. Or enjoying sex in a male's body. Or growing up in a suburban town with a low crime rate. Or watching middle class minorities benefit from affirmative action while knowing that they themselves will be held to a higher standard.

The second thing Sotomayor said is that a Latina is more likely to reach "a better conclusion than a white man" who hasn't had her experiences. In other words, her particular set of experiences is superior to the average white man's.

But aren't these experiences are supposed to be irrelevant when it comes to interpreting the law? A judge's competence is supposed to be measured by his ability to ask penetrating questions, for his understanding of Constitutional law, for his ability to step outside himself and judge a case on its merits and not purely from his own narrow tribal perspective. Although Obama paid lip service to these ideals when he initially spoke about what he was looking for in a nominee, it's pretty clear that these considerations were secondary.

It's instructive, as always, to imagine the races-reversed scenario. What would happen to a white judge if he said the equivalent? ("A wise white man, with the richness of his experiences, will more often than not reach a better conclusion than a Hispanic woman who hasn't lived that life.")

We all know what would happen. There would be huge public pressure brought to bear on him to resign from the bench. He might even be disbarred. And the New York Times would write endless hand-wringing editorials about the scourge of racism still apparent from such statements.

That white judge would certainly never be considered for a position on the Supreme Court.

Sotomayor recently voted against the plaintiffs in the Ricci vs. Stefano case. This was the case about the New Haven firemen whose promotions were denied because the test they passed was not passed by any of the black firefighters who took it. She did not give a written opinion to back her vote, she merely voted against the white firemen.

This is the kind of "better conclusion" -- based on the richness of her experiences -- that we can expect from Sotomayor.


Anonymous said...

John, It's mike hoffmann. I can't figure out how to register. Good news - I've been reading your blogs. Bad news - you missed on this one. That quote was provided by the republicans as a way to discredit O's choice. It was said in jest. Yes it's not up to our standard of funny,( well maybe yours) even in context, but she's a judge not a comedian. Anyway it was her lame attempt at humor. You over-anaylzed!!

John Craig said...

Mike -- Thank you, I hadn't realized you'd been reading the blog. It it was said in jest, then I'm way off. But I wonder about that. It sounds to me more like the kind of thing she said in an unguarded moment, then, when later faced with it, tried to claim it was only a joke. It doesn't sound like a joke, even a lame one, to me.

Anonymous said...

There is further evidence that Obama has expressed strong interest in factors outside those that would be considered bedrock criteria - such as knowledge of the Constitution, ability to understand, analyze and interpret law, etc. From an article dated May 2 by Stephen Dinan: "President Obama said Friday he will look beyond traditional legal experience to fill the seat of retiring Supreme Court Justice David H. Souter — to someone who can relate to average Americans." ..... " But his goal of a nominee with 'empathy' has already sparked a battle with Republicans and others who say the Supreme Court should concern itself with judicial philosophy, not social outcomes." Google 'Obama supreme court empathy' for numerous references. - Ed

John Craig said...

Thanks Ed. You're right, Obama made mention of wanting someone who would not legislate from the bench, and someone who would interpret the Constitution correctly, but that was just a smokescreen. If he had meant t hose things, he certainly made a strange choice in Sotomayor, who is on tape (on youtube) basically admitting that she legislates from the bench. Obama, in these sorts of circumstances, speaks mostly in code. When he says he wants someone with "empathy," he means that he wants someone who empathizes with blacks and Hispanics, and not whites. Sotomayor fits this bill, as she has shown with her Ricci v. DeStefano vote.