In Favor of Wise Latinas

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25 Responses

  1. A.W. says:

    This is more than a little pathetic. I mean in response to the very serious concerns about her, this post is like saying, “look! a squirrel!”

    First, let me say that when I was fighting for my equality, that literally precedents she set down helped me immensely. so in a real way i owe my equal opportunity in part to her.

    But her “wise latina” comment was bigoted, plain and simple. It was indefensible, which is why she didn’t really defend it. And even if it wasn’t bigoted, certainly every reasonable person would agree that her impartiality when it comes to white males and latinas, or discrimination generally, is subject to reasonable question because of those comments. if you concede that, and that she should obey cannon 3 of the code of judicial conduct, then she would be required to recuse herself in any case involving white males, latina females (as attorney or party) or discrimination. Which of course disqualifies her from so many cases that it would call into question her ability to serve at all.

    And further, let’s talk about her lack of candor on that statement. Now she says she was agreeing with O’Connor? Who exactly does she think she is fooling? Now she is saying it is a poor choice of words? Is she also saying that in all of her years repeating those words that no one thought to say a thing about it? i suppose it is possible given how people are often afraid to speak up in the academy when a minority or woman says something patently sexist or racist, but what does that say about her that it took THIS to make her realize there was anything wrong with what she said?

    Of course it would be unrealistic to suppose that the president won’t notice race or gender when making his choices, but even on those terms, are we really going to say that of all the latina women out there, this is the wisest one? how about one wise enough not to say what she said?

    If we were principled and serious about equal justice under the law, she not only wouldn’t be on the supreme court, she would be removed from the federal bench entirely.

    And if you disagree with that, then please explain to me how it is unreasonable to question her impartiality, or why she shouldn’t obey canon 3 like every other federal judge.

    But hey, look! A squirrel!

  2. Piper says:

    Oh gosh, as a few minutes at the US Census website will confirm for you, before 1967 the population of the US was ~85% white and the highly-educated segment of the population (you know, the pool from which Supreme Court justices are drawn) was way over 99% white. Even random selection from the relevant pool would likely have produced an all-white Supreme Court. Sexism? Ruth Bader Ginsburg herself was just quoted in the New York Times confirming there were hardly any female lawyers in the USA before the 1960′s!

    In fact, anyone who (a) passed a lower-division statistics class, and (b) looked up the relevant numbers would agree that the likeliest explanation even for the current non-white-male membership of the Supreme Court is intentional discrimination— in favor of women and non-whites.

    Sheesh.

  3. A.W. says:

    Btw, when talking about the number of minorities on the Supreme Court, you left out the real first hispanic: Benjamin Cordozo.

  4. Melissa says:

    This is right on the money. Her “wise Latina” comment, when read in its entirety, simply states the reality that someone with a particular set of experiences, such as those of being female or Latina, is more likely to see things in particular cases that a white man, who hasn’t had those experiences, will not see. In other words, they bring a much needed broadening of perspective to the court. Why do we give white men the presumption of impartiality, when in fact, they are as influenced by their experiences as anyone else? One answer is that due to their long dominance of the legal profession, their experience and perspective is considered normative, while that of females and people of color is considered the perspective that requires justification. Case in point, Clarence Thomas’s dissent in the recent strip search case. Thomas simply could not fathom what was the big deal about strip searching a 13 year old girl on the flimsiest of justifications. There can be little doubt in such a case of the value of having someone on the court who was once a 13 year old girl herself, and can explain exactly the humiliation inherent in such an experience. Sotomayor’s comment was addressing exactly this issue – with the broadening of perspectives on the bench, we are more likely to get decisions that address the realities of the lives of all Americans, not just a small, privileged segment.

  5. TRE says:

    Is Sotomayor a wise Latina? She is a Latina…

  6. Quincy Q says:

    There’s no doubt that this country has been plagued by racial bias in favor of white males. As the famous quote goes, privilege is like water to a fish, it’s everywhere and is assumed to always be there.

  7. A.W. says:

    Melissa

    Sorry, its bigotry. first off it reduces us all to a color or gender. What exactly does being latina bring that is so special? experience with discrimination? Well, what about Ricci’s experience with discriminaion as a dyslexic? But of course in her eyes he was just another white male. Sheesh.

    Secondly, even to the extent that it is true that latinas see things differently than white people, why should it be presumed that one set of experiences is superior to another. Being in the privileged class, in the hands of a wise person, can be just as educational about bigotry as being the victim of discimination. A white male for instance, knows what white males say when no women or non-whites are around. you don’t think that is useful, even on the subject of racism?

    No, whites are not automatically impartial. and neither are non-whites. everyone is equally likely to be biased by experience and a wise person of any color rises above that and sees something approaching the truth.

    what you would do is trade one form of racial/gendered supremacy for another. well, include me out.

    And i will point out that this supposedly empowered feminism and race theory, often ends up sounding like the same old bigotries. you would do well and track down O’Connor’s actual words, reproduced lovingly over at legal insurrection and see just how pernicious it all is. i am very likely in the near future to be the father of multi-racial children. whether they are boys or girls, whether they look white or not, i will raise them not to accept the stereotypes people put on them, not from the bigots on the far left or the far right.

  8. Devin says:

    AW is absolutely right; the fact that almost all of the Supreme Court Justices in the past have been white is simply representative of the population. In the 1960s, the vast majority of educated individuals were white men. Granted, this could be due to subtle, institutionalized racism that for years may have sought to exclude non-whites. However, racism or not, Supreme Court Justices should be lawyers; lawyers for a long, long time were white males. Period.

    I take issue with the fact that Sotomayor clearly has a preference for latinos/as. In my view, a preference for one race or ethnicity is tantamount to racism exclusive of that preferred ethnicity. Sotomayor thinks Latinos can come to better decisions because of their experience because she obviously thinks that Latinos’ experiences make them superior in some way. This is clearly racial prejudice; however, prejudice should not be a problem, only discrimination should. Our ability to prejudice makes us human, it is what distinguishes us from apes and many other creatures. To what extent Sotomayor’s prejudices should prevent her from being a Supreme Court Justice is for the Senate to decide.

  9. A.W. says:

    fwiw, my definition of racism is the opposite of martin luther king’s dream: to judge a person not by the content of their character but the color of their skin. Sotomayor would have us discard that dream.

    If we had an ethical democratic party, they would vote against her 100%. But I am sure next Martin Luther King day they will be patting themselves on the back for selecting a racist for the supreme court.

  10. A.W. /#9 is simply parroting right-wing mythology. In fact, Martin Luther King was in favor of quotas and preferences as a method of addressing past discrimination.

    Read the book “And The Walls Came Tumbling Down”, by Ralph David Abernathy, especially pages 400-405, for a long description of this philosophy in action, through economic pressure on businesses. Some choice quotes:

    “If the proportion of blacks to the total population was 12 percent, then we would ask that 12 percent of the employees be black.”

    “We would then tell him we were not willing to wait for these vacancies, that we wanted to see blacks in jobs right now.”

    “We were breaking eggs to make omelettes, and we insisted that businesses not postpone their responsibility to correct an historic imbalance.”

  11. George Conk says:

    The extracted declarations about applying the law, not making law, are code that mean “Brown v. Board” and “Roe v. Wade” never again.

    The exercise is, I argue, a subjugation ritual that will weaken Sotomayor’s ability to stand up to the Roberts-led majority. See my blog Otherwise: http://blackstonetoday.blogspot.com/2009/07/southern-strategy-and-sotomayor.html
    - GWC

  12. JR says:

    So you were a strong supporter of Clarence Thomas? How do you feel about the prospect of Janice Rogers Brown joining the Supreme Court.

    Anyway, I object to Sontmayor, because she is Puerto Rican, and there are very relatively few Puerto Ricans in the mainland. We need a Mexican for true representation. And a 1/8 Arab, 1/8 Cuban 1/4 Appalachian, 1/16 Mormon, 1/16 Greek, 1/8 Central American, and 1/4 Pentacostal to really sort things out.

    And by the way, there are way too many Jews and Catholics on the Court right now.

  13. Aaron Brown says:

    “(After all, what is the likelihood that not just the first, or second, or third best person for the court was white and male, but that meritocratic dice just happened to roll that way, ninety-five times in a row? Or even 73% of the time in the past 40 years?)”

    Um, Kaimi, the answer is: Very, very likely. In a world where women and minorities had little if any access to professional careers in law, there was virtually no chance that they could have had experiences that would allow them to develop the “merit” that would have made them competitive in a “meritocratic” selection process. What am I missing here?

    AB

  14. A.W. says:

    Seth

    Right, who should we believe on Dr. King’s philosophy? Abernathy or our lying ears.

    And you know what? even if Dr. King himself denounced those words that doesn’t make them any less true. They just make it no longer his.

    I support affirmative action at the opportunity stage. But not at the outcome stage.

    And under no circumstances will I support a bigot on the bench just because she is the right color and gender.

    And again, even if we are going to go all “quota” on this, are we really going to insult Latina Americans by saying that this is the best from their demographic? Its crap. We should not sacrifice equality under the law for this racist/sexist.

    Conk

    > The extracted declarations about applying the law, not making law, are code that mean “Brown v. Board” and “Roe v. Wade” never again.

    Again, no serious person is opposed to brown. Seriously, do you actually know any conservatives? Because what you are imagining is nothing but an outmoded caricature.

  15. A.W. says:

    Kai

    Btw, you know what is the most offensive thing about this post. You completely dehumanize Sotomayor. None of flaws, or her strengths are mentioned. Indeed, not one single word in this post speaks to anything unique to her. All she is here is a gender and a race, no individuality whatsoever. There is an assumption that just because she is the “right” gender and race, that she will represent that whole race and gender. never mind if her attitude about abortion might or might not be in tune with other latina females, or on a million other issues. It treates all latinas as interchangable. After all, even if we accept as given that the next supreme court justice must be a latina, you can’t even make a cogent argument why it must be THIS latina. its like as if you think any of them would do, which is obviously not the case.

    Your sole argument for her nominaion is her racial and gender-based identity, and i have to say i feel like taking a shower every time i am exposed to your argument.

  16. A.W., why do exclude the obvious choice – the view you have been claiming that Martin Luther King held, is a lie created by right-wingers for cheap-shot propaganda. He said “I have a dream (this will happen). He didn’t say “To make it happen, we should do nothing objectionable to right-wing reactionaries” – in fact he said to make it happen, we should do quotas and preferences and the like. Here, more quotes:

    http://academic.udayton.edu/Race/04needs/affirm25.htm

    King supported affirmative action type programs because he never confused the dream with American reality. As he put it, “A society that has done something special against the Negro for hundreds of years must now do something special for the Negro” to compete on a just and equal basis (quoted in Let the Trumpet Sound, by Stephen Oates).

    In a 1965 Playboy interview, King compared affirmative action style policies to the GI Bill: “Within common law we have ample precedents for special compensatory programs…. And you will remember that America adopted a policy of special treatment for her millions of veterans after the war.”

    I find this interesting in a way, none of the repeaters of the myth ever seems to care that it’s complete fiction for propaganda purposes. It’s like they have a bashing weapon (liberals, take that, huh!), and when it suddenly goes limp, they keep trying to flog it anyway.

  17. AYY says:

    Professor Wenger,

    Please correct me if I’m wrong, but I don’t remember you writing a post like this when Harriet Miers was nominated. Nor do I remember you defending Janice Rogers Brown when she was nominated for the DC Circuit. Granted anyone can make a mistake of omission, so it might not mean anything, but it’s troubling,

    Anyway, these privleged white males that you mention issued decisions that upheld the New Deal, as well as decisions like Brown v. Board of Education, Roe v. Wade, Mapp v. Ohio, Miranda, Griswold, Massiah, Weber, Batson, Bivens, just to name a few that come to mind. There were also a lot of decisions in the first 180 years that are purely of historical interest. Besides not all of these white males think alike. Scalia doesn’t often think the same way as Stevens. On the other hand he and Thomas seem to agree quite often.

    Melissa, Clarence Thomas isn’t a white male. And saying he couldn’t fathom what the big deal was, isn’t a fair description of what he wrote. The issue in the case was qualified immunity.

  18. AYY says:

    Seth,

    You haven’t shown that King supported affirmative action as it’s currently understood. Besides everyone knows that right wingere are too uptight to read Playboy, so you can’t really fault them for not knowing what he said during the interview. And if King wanted that idea to get out to the public, he wouldn’t have said it in Playboy, because who reads Playboy for the interviews?

    I seem to remember that King said something about having a dream that people wouldn’t be judged by the color of their skin. That’s a right wing idea if I ever heard one.

  19. Interesting comments, y’all.

    Let’s see:

    A.W. (1) writes:

    “But her ‘wise latina’ comment was bigoted, plain and simple. It was indefensible.”

    Dude, there has never been a Latina on the Court in its entire history. At present, it’s made up of six white guys, one woman, and one Black man. If confirmed, she’s going to raise the number of women on the court to a whopping 2 out of 9.

    It’s very defensible to say, excuse me, that court looks like a demographic oligopoly from which very large slices of the population are systematically excluded.

    Johnson deliberately put Marshall on the court as a Black; Reagan deliberately put O’Connor on as a woman; Thomas and Ginsburg were also deliberate, political choices.

    EVERY SINGLE TIME THAT POLITICIANS SAY “LET’S NOT LOOK AT RACE OR GENDER — OR FOR THAT MATTER, EVERY SINGLE TIME THAT THEY DON’T EXPLICITLY SAY, LET’S APPOINT A WOMAN OR A BLACK PERSON — THEY HAVE APPOINTED A WHITE MALE. EVERY SINGLE TIME IN THE ENTIRE HISTORY OF THE SUPREME COURT. THERE IS NOT A SINGLE EXCEPTION.

    So yes, let’s go out of our way to appoint women and minorities. Because the only other option appears to be a “neutral” rule that guarantees another white male nominee. It sure as hell isn’t going to happen if we say, “we’ll just appoint the best possible candidate, regardless of race.” That is code for, “let’s appoint another white man” — 200 years of history tells us this, very very clearly.

    Piper (2) writes:

    “the likeliest explanation even for the current non-white-male membership of the Supreme Court is intentional discrimination— in favor of women and non-whites.”

    Wow — someone who thinks that the Court should still be all white men.

    Melissa (4):

    You rock, as always. :)

    AW (6) writes:

    “Secondly, even to the extent that it is true that latinas see things differently than white people, why should it be presumed that one set of experiences is superior to another. Being in the privileged class, in the hands of a wise person, can be just as educational about bigotry as being the victim of discimination. A white male for instance, knows what white males say when no women or non-whites are around. you don’t think that is useful, even on the subject of racism?”

    I agree, it’s important that white males are represented on the court. Fortunately, we’ve already *got* that, by a very large margin.

    I’m not saying that one set of experiences is superior to another. Clearly, there are useful experiences that people of many different backgrounds can draw on.

    I am not arguing that everyone in the orchestra needs to play the violin. A good orchestra has French Horn and trombones and woodwinds too.

    But if the orchestra already has six trombones, and has never hired a violinist in its entire history — I think that a reasonable argument can be made that it’s time to add a violin. Not because violins are per se better than trombones. But because the massive imbalance of an all-trombone orchestra _is_ bad.

    JR (12):

    Nice false dichotomy. We must either achieve exact demographic matching to all groups (the court needs a Justice who is 1/64 Armenian!); or else we must throw our hands up in despair, give up, and continue with the status quo of hiring most or all white men.

    AW (15):

    “You completely dehumanize Sotomayor.”

    How so? I’m defending one remark which she made, which is, I think, perfectly defensible. I haven’t said (and don’t think) that we should appoint any Latina with a pulse. But I think that Sotomayor is a good candidate; and I think that her comment on Latinas is generally correct as well. This orchestra needs a violinist, and soon, so let’s find a good one and start remedying the longtime historical imbalance.

  20. And I’m perfectly open to the idea that, should the next 15 or 20 nominees be women of color and the court come to be dominated over the medium term by women of color, that a white male nominee could legitimately say, “I’m a white male and I bring something to the table that the group is lacking right now.”

    That’s not the case right now, and probably won’t be. But I’d be happy to entertain that argument, if and when the facts warrant it.

  21. crash says:

    wow, this is one of those most stupid posts I’ve read here on CO. Of course, white men have dominated the court because most of the population were white back then, rightly or wrongly, most of the opportunities were only available to white men and when did the Supreme Court become an affirmative action project?

    I’m all for Sotomayor being confirmed but that’s because she has the track record to prove it. Why only race or color? That’s party of who she is, but as far as I remember, just having the right skin color doesn’t make one qualified to be a Supreme Court justice.

  22. A.W. says:

    Kai

    > [me] “But her ‘wise latina’ comment was bigoted, plain and simple. It was indefensible.”

    > [you] Dude, there has never been a Latina on the Court in its entire history.

    In what way does that even relate to my point?

    And that is factually untrue. Cardozo.

    > EVERY SINGLE TIME THAT THEY DON’T EXPLICITLY SAY, LET’S APPOINT A WOMAN OR A BLACK PERSON — THEY HAVE APPOINTED A WHITE MALE.

    Really? So when Bush Sr. appointed Thomas he did so explicitly because of Race? Or do you just assume that his race was the deciding factor?

    And for that matter, I don’t recall Bill Clinton saying he was appointing Ginsberg for her gender?

    Care to fish up their exact words?

    > I’m not saying that one set of experiences is superior to another.

    Well, indeed you are not. But Sonia Sotomayor said that.

    > [me] You completely dehumanize Sotomayor.

    > [you] How so?

    Because not one single word above has anything to do with her as an individual. Which bleeds into my next point…

    > I’m defending one remark which she made, which is, I think, perfectly defensible.

    Except you aren’t. This post is not entitled “in defense of Sotomayor’s comment” but instead in defense of wise Latinas. The demographic and not the words themselves.

    If you meant this to be a defense of her words, his is breathtakingly disingenuous. If that was your intent, then instead of defending what she said, you are trying to recast what she said as a plea for affirmative action when what she actually said was that Latinas had better judgment than white men.

    The fact you can’t defend what she said on its own terms is a confession that it cannnot be defended.

    Seth

    > is a lie created by right-wingers

    Oh, so when we hear he wants his daughters judged not by the color of their skin but the content of their character, you are going with the theory that our ears are lying to us?

    Tell me, just how deep does this conspiracy go? Are the freemasons involved? How about the saucer people?

  23. A.W., the reality is that right-wingers lie to us about WHAT HE BELIEVED WAS NECESSARY. Martin Luther King believed that racial quotas and preferences were vital for social justice.
    This isn’t in conflict with a desire that someday they wouldn’t be necessary. This seems to make some people’s heads explode, who want to keep on repeating their fantasy take-that-huh! supposed killer argument. And every time I see that myth refuse to be given up, I take as definite proof that he’d say we’d still need them.

  24. A.W. says:

    Btw, via the legal insurrection blog, this is what O’Connor said, which is what Sotomayor was disputing. Its from a law review article in 1991. I think it serves as a damning “prebuttal” to Soto’s identity politics:

    Just when the Court and Congress have adopted a less sanguine view of gender-based classifications, however, the new presence of women in the law has prompted many feminist commentators to ask whether women have made a difference to the profession, whether women have different styles, aptitudes, or liabilities. Ironically, the move to ask again the question whether women are different merely by virtue of being women recalls the old myths we have struggled to put behind us. Undaunted by the historical resonances, however, more and more writers have suggested that women practice law differently than men. One author has even concluded that my opinions differ in a peculiarly feminine way from those of my colleagues.

    The gender differences currently cited are surprisingly similar to stereotypes from years past. Women attorneys are more likely to seek to mediate disputes than litigate them. Women attorneys are more likely to focus on resolving a client’s problem than on vindicating a position. Women attorneys are more likely to sacrifice career advancement for family obligations. Women attorneys are more concerned with public service or fostering community than with individual achievement. Women judges are more likely to emphasize context and deemphasize general principles. Women judges are more compassionate. And so forth.

    This “New Feminism” is interesting, but troubling, precisely because it so nearly echoes the Victorian myth of the “True Woman” that kept women out of law for so long. It is a little chilling to compare these suggestions to Clarence Darrow’s assertion that women are too kind and warm-hearted to be shining lights at the bar….

    I would hope that your generation of attorneys will find new ways to balance family and professional responsibilities between men and women, recognizing gender differences in a way that promotes equality and frees both women and men from traditional role limitations. You must reopen the velvet curtain between work and home that was drawn closed in the Victorian era. Not only women, but men too, have missed out through the division of work and home. As more women enjoy the challenges of a legal career, more men have blessings to garner from taking extra time to nurture and teach their children.

    If we are to continue to find ways to repair the existing difference between professional women and men with regard to family responsibilities, however, we must not allow the “New Feminism” complete sway. For example, asking whether women attorneys speak with a “different voice” than men do is a question that is both dangerous and unanswerable. It again sets up the polarity between the feminine virtues of homemaking and the masculine virtues of breadwinning. It threatens, indeed, to establish new categories of “women’s work” to which women are confined and from which men are excluded.

    Instead, my sense is that as women continue to take on a full role in the professions, learning from those professional experiences, as from their experiences as homemakers, the virtues derived from both kinds of learning will meld. The “different voices” will teach each other. I myself have been thankful for the opportunity to experience a rich and fulfilling career as well as a close and supportive family life. I know the lessons I have learned in each have aided me in the other. As a result, I can revel both in the growth of my granddaughter and in the legal subtleties of the free exercise clause.

    Do women judges decide cases differently by virtue of being women? I would echo the answer of my colleague, Justice Jeanne Coyne of the Supreme Court of Oklahoma, who responded that “a wise old man and a wise old woman reach the same conclusion.”

    This should be our aspiration: that, whatever our gender or background, we all may become wise-wise through our different struggles and different victories, wise through work and play, profession and family.”

    [end of O'Connor's words.]

  25. A.W. says:

    Seth

    Well, I will say this, too. Again, I support affirmative action at the opportunity stage but not at the outcome stage. Let me give you a very specific example of bad affirmative action: New Haven’s behavior in the Ricci case.

    The fact is that the test makers bent over backwards to make it fair according to race, oversampling minorities in those who formulated and tested the test. This contrasts sharply with various IQ tests that notoriously are tested on white people only. I believe that talent is evenly distributed, but I know that it is not always evenly distributed in every community, and it is not evenly DEVELOPED in every community, often because of bigotry of various forms. So yes, I believe that more white people in new haven than black are great firefighters, worthy of promotion. But its either because that is just the way the dice fell in new haven, or because something in their society keeps the best black firefighters from achieving their fullest potential.

    New Haven wanted to create in essence a back door quota. If their behavior was affirmed, they would have thrown out test after test until one came out “right.” But the result of that would be to elevate the minority fire fighters when they didn’t deserve it. I have said it before and I will say it again. When my house is burning down, I don’t want a ladder team led by a captain who would have been a great firefighter but for the effects of society’s discrimination; I want the best, period.

    And part of my critique is that it is a lazy method of papering over the problem. What New Haven should have done, which in my opinion is good affirmative action, is to affirmatively find and develop minority talent among firefighters. So instead of lowering the bar, they lift up those who previously were held back by discrimination, by doing the heavy lifting of MAKING THEM BETTER FIREFIGHTERS.

    To take the other approach not only risks harming the effectiveness of the fire department, but more damningly, it elevates those minorities it “helps” into a position they usually won’t be ready for.

    And I say this all coming from the position of a man who has faced discrimination. When I was younger I was denied my right to an education out of sheer bigotry. I was not able to even graduate high school.

    But the solution wasn’t to just hand me degrees and diplomas I didn’t earn or deserve. It was to give me a chance to earn them. And I did. I got my GED, and went on to eventually become a lawyer (meaning the typical law school educational track). Did anyone account for the discrimination I faced? Probably. I specifically asked the universities and law schools I applied to, to disregard the fact that I was a drop out and that my grades in high school were poor, by pointing toward that discrimination. I can only assume they did. And thus they saw fit to affirmatively give me an opportunity to succeed. But they did not (and this is important), hand me any degree I didn’t earn with hard work or otherwise pretend I had a success I didn’t have.

    I haven’t checked the numbers recently, but I assume that Latinas are still underrepresented in the legal profession and are certainly underrepresented in the Supreme Court. And in most ways I think Soto is well qualified to be a supreme court justice. Except there is that pesky bigoted thing she said, which renders her unacceptable to me. And in any case, the solution isn’t to pick a latina to pick a latina, but to pick the best and let it be the luck of the draw.