No joking matter

Over the weekend, Paul Krugman attempted to explain away Sonia Sotomayor’s “wise Latina” statement by claiming that it was a joke. Krugman said that the line was delivered during a speech in which Sotomayor “was trying to be entertaining.”

Meanwhile, the Democrats are serving up a different spin. Echoing President Obama, Senator Leahy said today that what Sotomayor meant is that people have different backgrounds but “there is only one law,” and “ultimately and completely” she would follow the law.

Krugman’s spin is slightly more plausible than that of Obama and Leahy: the latter are saying, in effect, that night means day. Krugman effectively is saying, without any basis, that Sotomayor was joking when she said it was night during the day time.

Sotomayor’s speech was an attempt to deal with a serious question, one of the most serious in jurisprudence — whether judges can and should “transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.” This was not an attempt to entertain. To be sure, Sotomayor made a few light comments early in the speech. But this is standard fare; for example, Presidents Reagan and Obama both did this in their commencement addresses at Notre Dame. But no one would claim that the statements they made when they got to the subject at hand — patriotism in Reagan’s case and abortion in Obama’s — were less than entirely serious.

Sotomayor highlighted the seriousness of her talk by inserting several judges and professors into the mix. On the side of those who think judges can and must transcend their sympathies and prejudices, she cited Judge Miriam Cedarbaum and, of course, Justice O’Connor. On the opposite side, she relied above all on her law school classmate Martha Minnow, a lefty law professor who holds (as Sotomayor put it) that in law “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging.” (Note that Minnow effectively defines judicial choosing as a non-neutral, non-objective activity).

Sotomayor clearly is not playing for laughs in this portion of her speech — the portion in which the “wise Latina” takes the stage.

Where did Sotomayor come down in the debate between Cedarbaum/O’Connor and Minnow? As to the question of whether judges can transcend their sympathies and prejudices, Sotomayor clearly agreed with Minnow:

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. (emphasis added)

Thus, Leahy’s assertion that Sotomayor meant there is only one law which she would follow is rubbish. Sotomayor was saying that there is no objective law that can determine judicial outcomes, “only series of perspectives” which undermine “the aspiration to impartiality.” That, of course, is why Sotomayor said that a “wise Latina” and her white male counterpart will read the same statute or constitutional provision and reach a different “conclusion” about what the law is.

On the question of whether this state of affairs is desirable, Sotomayor was somewhat less direct:

Judge 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. (emphasis added)

At this point one can argue that Sotomayor was just wondering. But as she picked up steam, Sotomayor clearly tilted towards the view that Latinas, Latinos, and other people of color should embrace the reality that “our gender and national origins. . .will make a difference in our judging.”

Indeed, how could Sotomayor not have embraced what she saw as the imperative of relying on a distinctively Latina jurisprudence if, as she thought she had reason to hope, “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”?

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