Sotomayor's bias against impartiality
I think this nomination would be in trouble if she were a Republican. Because she is a Democrat and Hispanic she will get a pass that others stating similar points of view would not.
The chief blot on Sonia Sotomayor's otherwise stellar professional record is a comment she made deprecating the capabilities of any judge lacking a Y chromosome and Iberian ancestry.
"I would hope," she said in a 2001 lecture on law and multicultural diversity, "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."
The question for her supporters is: How do we spin that? It's not sufficient grounds to reject her nomination, given her excellent credentials. But it's still an embarrassment.
One possible way to handle it is a mea culpa by the nominee. She could say, "Let me explain what I meant to say," or "I used to believe that, but I now realize I was mistaken," or "Oh, man -- what was I thinking?" Any of those tactics would defuse the controversy and allow the debate to proceed to a topic more advantageous to her.
Maybe when she gets to her confirmation hearing, Sotomayor will disavow the remark. But her supporters are taking another tack. They say this criticism is unfair, because critics have taken the quotation out of context and grossly distorted her meaning.
Sotomayor, they point out, also said judges "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."
Her allies have a point. 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.
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.
Underlying all this is Sotomayor's suspicion that white male judges are bound to treat minorities and women unfairly. 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.
The court that upheld affirmative action by public universities had only one black member. There were no women on the court that found constitutional protection for abortion rights.
All of those liberals who have attacked Rush Limbaugh and Newt Gingrich for noticing that her remarks were racist or sexist need to reexamine her statement in context and impartially put their biases aside. Oh well, as Sonio might say, "It is just and aspiration."