Judge Sotomayor spent a good portion of yesterday trying to explain away the passages in multiple speeches where she (1) embraced the idea that she sees facts differently by virtue of her life experiences as a Latina and (2) suggested that, by virtue of such life experiences, a wise Latina judge will make better decisions than a wise white male judge.
Much of her testimony on this matter was simply not credible. For example, she tried to argue that her speeches actually say that a judge should recognize the prejudices that her experiences create in order to make sure these prejudices don’t enter into her decisions. But that is the opposite of what she said in her speeches. There, she said she “accepts” that “our experiences as women and people of color affect our decisions” and believes that, other things being equal, these experiences enable women of color to make better decisions that other judges.
Sotomayor’s lack of candor about her speeches was so blatant that, as Jennifer Rubin notes, even some liberal commentators couldn’t swallow it.
Sotomayor presented only one defense of her speeches that has any plausibility — the claim that her record as a judge proves she doesn’t let gender enter into her decisions. But, as others have noted, as a Supreme Court Justice she would be less constrained than she was as a district court and appellate judge.
In any event, her record in those capacities isn’t all that revealing either way. When she ruled against, and attempted to bury, the claims of the Ricci plaintiffs, Sotomayor did not say she was doing this based on her life experiences as a Latina. But that doesn’t mean that these experiences weren’t in play. Indeed, Sotomayor continues to acknowledge that bias can enter the decisionmaking process subconsciously.
To be sure, as Sotomayor pointed out, two other judges agreed with the way she elected to treat the Ricci plaintiffs, and neither was a Latina. But this doesn’t mean that, in Sotomayor’s case, her inner Latina was not at work. All we can say for sure is that (1) Sotomayor got the decision wrong (not one Supreme Court Justice agreed with her disposition of the case), (2) Sotomayor’s treatment of the plaintiffs and the issue they raised was shabby (her mentor, Judge Cabranes, basically said as much), and (3) if her handling of the case was influenced by her gender and ethnicity, to Sotomayor that is fine, according to her speeches.
A similar analysis applies to Sotomayor’s overall voting record. A Washington Post study showed that she is more liberal than the average judge appointed by a Democratic president. But other judges, by definition, also fit this description and, given the demographics of the bench ,few of them can be Latina. But again, we can’t know whether Sotomayor’s ethicity and gender helped push her into this particularly liberal cohort.
My sense, for what it’s worth, is that liberalism has internalized identity politics to the point that most liberals consistently see the world as Latinas do, at least for purposes of deciding cases. For example, most white liberals believe as ardently Latina liberals that women of color continue to get a raw deal from white males. Accordingly, as judges they filter the facts before them through that lens to just about the same degree as their Latina counterparts on the bench.
Female and minority academics have wanted to deny this fact because it makes females and minorities less special and removes one argument for preferring them for judicial appointments. Presumably, Sotomayor wanted to deny it at least in part for the same reason.
Whether Sotomayor ever really believed that her gender and ethnicity give her a leg up as a judge is unclear. But she should be held accountable for having made that claim repeatedly. And now, in addition, she should be held accountable for testifying dishonestly about whether she made it.
UPDATE: As if to demonstrate my point, Sen. Sheldon Whitehouse, the liberal Democrat from Rhode Island, just told Judge Sotomayor that to think about her life story and what her nomination means for the country gives him “piel de galina.” That’s Spanish for “goosebumps.”