Is Obama’s Supreme Court nominee Judge Sonia Sotomayor racist?

Much is being made in the media, particularly the conservative media, about a quote from President Obama’s Supreme Court nominee, Judge Sonia Sotomayor, that goes like this:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

Judge Sotomayor made this quote during her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California Berkeley School of Law in 2001.  On the surface, yeah, it sounds kind of bad.  Taken alone, it does in fact sound racist – she’s basically saying that a minority woman is likely to make better judicial decisions that a white male who hasn’t lived the life of a minority.  I Hate The Media‘s Alternate Universe Quote of the Day makes this pretty clear by transposing the same quote to a white male, in this case Justice John Roberts, and asks us what we’d think if he’d been the one to say it:

“I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion [as a judge] than a Latina female who hasn’t lived that life.”

Now it sounds really bad, doesn’t it?  If a white man said that, we’d have his head on a platter, right?  And there’s no way that this is simply a quote taken out of context, because it’s difficult to imagine the context this quote could be said in that would make it all right.  The word “better”, in particular, is a real standout case of implying racial superiority, and it seems hard to justify for a Supreme Court Justice nominee.

But all is not as it seems.  As is common with many political arguments, especially arguments intended to incriminate another person and put them in a bad light, this one is best delivered in quick-shot sound-bite fashion – just a single, jarring quote pulled out of a bunch of them, held up for all to see, something that instantly incenses people and is difficult to rebut with merely another sound-bite.  Any rebuttal must necessarily come in the form of something longer and more thoughtful, and the opponent is less likely to listen to that, or to put in the effort to be thoughtful about it.  People are easily hooked on the sound-bite, but I think it’s worth looking a little more closely, so let’s take a stab at the longer, more thoughtful argument anyway.  First, here is the entire quote put in the larger context of the lecture, and I strongly advise you to read it carefully and in full, every single word:

“In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice 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. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.”

It takes a lot more effort to read and understand all of that than just a single, easily digestible line, to be sure, but that effort is worth it.  If you read the entire piece, and put some effort into understanding what she’s trying to say, you might begin to see that there is indeed a context where the single quote not only doesn’t sound racist, but actually sounds right.  After establishing in her first paragraph that white male judges have made seminal decisions in race and sex discrimination cases, while reminding us that the people who argued those cases were largely racial minorities and women, and after noting her disagreement over Justice O’Connor’s statement that wise men and wise women are likely to reach the same conclusions in deciding cases, leading up to her controversial quote about a proverbial wise Latina woman (presumably herself), she goes on to explain herself, and this is the part that’s missing from the sound-bite protestations.  Bolded emphasis mine:

“Let us not forget that wise men like Oliver Wendell Holmes and Justice 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.”

This is a pointed reminder that in the past, the proverbial “wise men” that Justice O’Connor refers to have made the wrong decisions before.  Clearly she’s arguing that a wise Latina woman wouldn’t have come to the same conclusions upholding race or sex discrimination, and that refusing to uphold race or sex discrimination is a better conclusion than upholding it.  It is difficult to argue with that line of reasoning, and suddenly her sound-bite quote seems a lot less racist, when put in the context of her larger argument about how race and sex discrimination cases have been argued before.

She goes on to actually qualify her statement (something that true racists almost never do) that a wise Latina woman would necessarily reach a “better” conclusion than a wise white male counterpart:

“I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.”

Then she bravely explains why, despite this qualifier, she stands by her statement:

“However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.“

This is a brave statement because it is so nuanced, and it depends on the audience to have a full comprehension of the entirely of her argument, not just a single sound-bite pulled out and quoted as if it existed by itself.  It also asks the audience to practice some cold, hard introspection, something that might have been fine for the attendees of her lecture, but something that the American public at large is not always so good at.  The fact is, she’s absolutely right, and it’s a human quality that I think all people can identify with.  I myself am a white male, and I intuitively understand that I cannot possibly know what it’s really like to have experienced, say, discrimination against blacks in the 1950s, or what it was like to be a Jew in Nazi-occupied Europe in the 1930s.  I can empathize with those positions, if I choose to take the time and effort (and I like to think that I do), but as Judge Sotomayor correctly points out, not everyone will take that time and effort.  Not everyone has the ability to project and empathize.  And some people simply don’t care.  These are basic truths that no intellectually honest human being can deny.

Note that she’s not saying that just because you didn’t experience something first hand, that you can’t understand something from someone else’s point of view.  She is very careful to qualify this point, as we can clearly see up above.  She’s just saying that not all people can or do, and I think the only people that would deny that are the very people that she’s talking about.

And so we see after all that her single, much-ballyhooed quote is not racist after all.  If it were a racist comment, she would be making a statement of racial superiority; that a Hispanic woman would make better decisions than a white male simply because she’s a Hispanic woman, or even simply because she’s lived the life of a Hispanic woman and white males would be incapable of understanding that point of view.  This is not her argument, though.  She is arguing that under some circumstances, usually depending on the person and how much effort they’re willing to put into being thoughtful and empathetic, she would hope (another important qualifier; she’s really expressing an expectation more than she’s making an argument) a minority might make a better decision on race or sex discrimination cases, because they have lived that life and are not as likely to lack understanding or empathy.  They don’t need to empathize, because they know what it’s like first-hand, and she’s right that the presence of women and racial minorities on the bench will certainly make a difference.  And it’s certainly not comparable to the converse argument as if it had been spoken by Justice Roberts, as I Hate The Media so disingenuously proposed, because a white male would have no historical justification to make this kind of argument.  Us white males have simply not, as a class, been oppressed in American history.

There is nothing racist about this rather simple observation of human nature, and I think she put it rather eloquently.  It’s not racist, it’s just a cold truth.  Anyone who seriously argues that all people experience all things in the same way is being intellectual dishonest, and are probably one of the people incapable of the kind of empathy that Judge Sotomayor is referring to. And anyone who seriously argues that her statement – the ENTIRE statement – doesn’t ring true, is missing a key insight into the human experience.

Ultimately, it’s a spot-on sentiment.  Unfortunately, I have no doubt the sound-biters will win this particular argument, because America is currently not into thinking deeply about such things.  Sound-bites are easier.  But it will be a disingenuous win, and like most socially conservative positions today, it too will end up on the wrong side of history.