Sotomayor’s Nose Grows Longer

Pat Leahy opened the questioning of Judge Sonia Sotomayor by asking her some softball questions about her controversial speeches and decisions. In response, Sotomayor’s characterization of her “wise Latina” speech was strikingly disingenuous:

I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.

What — the words that I use, I used agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges.

That has to be what she meant, because judges disagree about legal outcomes all of the time — or I shouldn’t say all of the time, at least in close cases they do. Justices on the Supreme Court come to different conclusions. It can’t mean that one of them is unwise, despite the fact that some people think that.

So her literal words couldn’t have meant what they said. She had to have meant that she was talking about the equal value of the capacity to be fair and impartial.

Sotomayor employs a rhetorical dodge by focusing on how she interpreted Justice O’Connor’s famous statement that “a wise old man and wise old woman will reach the same conclusion in deciding cases.” She says that O’Connor couldn’t have meant that the the wise man and the wise woman will reach the same decision in every case, since judges often disagree. Rather, she interpreted O’Connor’s statement to mean that men and women have an equal capacity to reach wise judgments.

Of course that’s correct: O’Connor was saying that men and women shouldn’t reach different decisions because of their genders. But here is where Sotomayor hides the ball. Having created a diversion by talking about what O’Connor meant, she slipped in this key statement: “the words that I use, I used agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey.”

That statement is a falsehood. Sotomayor’s whole point in quoting Justice O’Connor was to disagree with, or at least express reservations about, O’Connor’s view that the judge’s gender shouldn’t affect the outcome of a case. Here is the passage from Sotomayor’s speech:

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.

Thus, Sotomayor’s characterization of the context of her “wise Latina” remark is the opposite of the truth. She wasn’t “agreeing with the sentiment that Justice O’Connor was attempting to convey,” as she told Senator Leahy. Rather, she staked out a position in opposition to O’Connor’s. In her speech she expressly disagreed with O’Connor’s view, as Sotomayor put it, “that both men and women were equally capable of being wise and fair judges.”

I’ve been on the fence as to whether Senators should vote to confirm Sonia Sotomayor, but this rather breathtaking dishonesty provides strong grounds to vote against her confirmation.

UPDATE: Later in the proceedings, Sotomayor couldn’t resist fudging the facts once again:

SOTOMAYOR: …I was talking about the value that life experiences have, in the words I used, to the process of judging. And that is the context in which I understood the speech to be doing.

The words I chose, taking the rhetorical flourish [i.e., “wise Latina”], it was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concern.

But I have repeated — more than once — and I will repeat throughout, if you look at my history on the bench, you will know that I do not believe that any ethnic, gender or race group has an advantage in sound judging. You noted that my speech actually said that.
And I also believe that every person, regardless of their background and life experiences, can be good and wise judges.

LEAHY: In fact, if I might…

KYL: Excuse me. Just for the record, I don’t think it was your speech that said that, but that’s what you said in response to Senator Sessions’ question this morning.

Indeed, Sotomayor said no such thing in her speech; she said the exact opposite.

FURTHER UPDATE: Please do comment, but bear in mind that comments are moderated and no comment will be approved unless it includes your first and last name.

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