JOHN MCWHORTER JULY 16, 2009
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Sonia Sotomayor’s “wise Latina” line is worth some comment beyond that which I ventured a while ago. Her record makes it clear overall that she will be a more than suitable justice on the Supreme Court. However, her defense of that comment this week has been logically hopeless. We all know it.
We should also know, at this point in time when people of color of her generation are of the age to rise into top positions requiring serious vetting, why Sotomayor and others like her will have to, shall we say, dissimulate in cases like this. A true understanding of our social history will require us to give people like this a pass on statements like the “wise Latina” bit.
When Sotomayor claims that her statement was merely ill-couched and that we should read it as indicating that “I do not believe that any ethnic, racial or gender group has an advantage in sound judging,” it is nonsensical. Her statement, in its fullest rendition at U.C. Berkeley, quite clearly was:
“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.”
A “better conclusion,” and she said it more than once.
This is a statement that a certain racial group does have an “advantage.” “I stand by the words. It fell flat,” Sotomayor says --which is closer to the truth. She believed what she said, but what she said didn’t go over well with others listening in. But -- not because she didn’t use the proper wording, but because of what the words clearly meant.
Her most articulate clarification spins the statement into one about how empathy will simply inform – rather than render better than “white” – her judgments:
I think life experiences generally, whether it’s that I’m a Latina or was a state prosecutor or have been a commercial litigator or been a trial judge and an appellate judge, that the mixture of all of those things, the amalgam of them help me to listen and understand.
It’s unclear to me that anyone, however they feel about the issue of whether empathy should affect jurisprudence, could fail to understand the basic logic of this statement. Again, however, that “better conclusion than a white male who hasn’t lived that life” implies that the empathy in question makes a Latino/a a better judge than a white one, according to what she said.
The question is why Sotomayor said this, and whether she actually believes it. My sense is that it is a sentimental notion that occupies an area of her brain outside of that concerned with ratiocination. In a very ordinary way. When’s the last time we saw a public figure of obvious intellect, familiar with long-lined argumentation, comfortable with separating gut feeling from logic, turning out to be dipping their toes behind the scenes in visceral tribalist contrarianism?
Yes, last year when our notoriously cool, cerebral President was being raked over the coals for attending a church presided over by a rabble-rousing conspiracy theorist preachah-man. Many of us wondered why he would be in that church, and why its seemingly well-heeled members get such a kick out of listening to Jeremiah Wright sounding off like Louis Farrakhan. And Peggy Noonan, of all people, nailed it--even those who have gotten past what their ancestors suffered often feel a need to give off now and then a “barbaric yawp” of empathy with their ancestors, as well as with their comrades still lagging behind. It’s a way of indicating a sense of history. Empathy, if you will.
It’s something often done at high volume. It’s about the gut. Or, it’s a way you help reach out to audience members of your ethnicity on the level of the heart. And inevitably, it lends itself to chauvinist rhetoric. To elevate difference, “diversity,” as special as we did in the sixties almost inevitably shades into claims of superiority, especially when the motivation is assuaging the very real abuses of the past (and even present). There was a fine line between, for example, Black is Beautiful and "black is better" -- along the lines of the more athletic claims of the White Negro sentiment from Mr. Mailer, which had (and has) its reflections in both white and black thought.
Is any of this surprising, however? Certainly part of a group’s getting over centuries of dismissal will entail a certain amount of jolly chest-beating and handshakes. This is what human beings do. We have ids as well as egos. We speak casually as well as formally. We have right brains as well as left brains. This off-the-record brand of chauvinism has been a therapeutic element in the air in ivory tower circles and beyond for forty years now. I was in it for a good while myself and remember it well. You drink in an unspoken but powerful sentiment that minority essence – “flava” as one might put it -- is warmer, more authentic, more empathetic indeed, than yesterday’s tired, oppressive “whiteness.” (White people groaning “That’s so white” would have seemed like science fiction in, say, 1958.)
Recall, for instance, Michelle Obama learning that she could not be so cozy in media interviews as to pop off the likes of being proud of her country “for the first time” in seeing her husband’s embrace by the electorate. It seemed smug and offensive to many: on the one hand, you assail the United States as defined by its failure to account in a final way for the stain of slavery and Jim Crow, while on the other hand you work diligently at rising into top positions within the framework of that very nation despite your own dark skin and associating easily with whites. Mrs. Obama’s statement didn’t surprise me in the least. I am about her age, and while I have never been the focused mover-and-shaker that she is, what I have known and seen is pretty similar. I have spent my whole life listening to people of her demographic making statements like that “proud of my country” one. It’s part of what being a person of color in America in this historical moment is.
Crucially, this strain of sentiment is not, necessarily, the way you actually think in a logical sense. There are two yous. Call it a new version of the Double Consciousness W.E.B. DuBois wrote about. In Sonia Sotomayor there are two souls striving in one Latina head: one the dispassionate jurist, the other the underdog at the barracks. No one should be surprised that she is both an A-One judicial thinker and also a member of La Raza. Welcome to Accomplished Middle-Aged People of Color, Twenty-First Century.
She herself, elsewhere in the now famous Berkeley speech, knows about this double consciousness in, at least, America as a whole.
America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet we simultaneously insist that we can and must function and live in a race- and color-blind way that ignores these very differences that in other contexts we laud.
She might as well be describing herself. And it means that quite often as we move on, we are going to find that people of color being vetted for high positions will turn out to have made comments like the “wise Latina” one and/or to have belonged to organizations whose politics are far to the left of their public positions and actions. At times such people will even contribute further indications of their right-brain side, such as Attorney General Eric Holder’s “Nation of Cowards” passage.
I suspect it’s too much to ask of our commentariat to view demonstrations of this Double Consciousness as patterned, typical, and unrelated to people’s public intent. One thing we can know is that countless media brouhahas in the future – possibly including President Obama’s next Supreme Court pick – will turn on this same split identity in people fashioning informed senses of identity as people of color in a society in transition.
26 comments
In her testimony, Sotomayor made it very clear that she does not believe that any particular group, ethnic or otherwise, has the edge in judicial reasoning. It was important for her to make that distinction. But the original statement that has caused all the discussion was more nuanced than that; it pointed out that "rich experiences" could contribute to improved judicial thought. Does that idea seriously bother anyone?
Judges and jurors are supposed to pay attention to the facts of a case and the law. But when there are many facts in a case, how you choose to prioritize their relevance is not spelled out anywhere. People's experiences will necessarily determine which factors outweigh others in their thinking. People who have experienced being treated unjustly are likely to have more fire in their belly for fighting injustice.
It is also important to consider her use of the word "wise". Some people reacting to an injustice could merely become bitter, hateful and eager for revenge. Others aspire to transcend the negativity by promising themselves not to do unto others what others had done unto them.
The funny thing is that now that affirmative action has given some white men the opportunity to experience being treated unfairly, many of them-------despite their vaunted Christianity------seem to be opting for bitterness, hate and revenge.
- kerFuFFler
July 16, 2009 at 3:29pm
Excellent point, kerFuFFler. I've been struck all along by how the people who insist on taking (or granting others permission to take) umbrage at the word "better" conveniently ignore that the word "wise" appears only in the first half of the clause. I would hope that a "wise" anybody would make yes, a *better* decision than a merely "white" anybody else. Otherwise, what is wisdom for?
But at least both McWhorter and the young lady who wrote what's (IMO) still the definitive piece on that statement in Slate recognize that the context is critical. No white, male jurists are ever invited to speak on the topic of Being a Minority In the Legal Profession, let alone a dozen or more of them in the course of a career, and methinks many of them would acquit themselves less well than Sotomayor in terms of embarrassing sound-bites if they were.
- austinexpat
July 17, 2009 at 9:27am
Sotomayor's comment was disagreeing with O'Conor's remark that "“a wise old man and a wise old woman reach the same conclusion". The wise was implied in the second half, and on some occasions she explicitly included it there. I don't think that it reveals anything wrong with Sotomayor but that line, taken in isolation, is clearly racist and sexist, and that can't really be interpreted away.
- Simon Greenwood
July 17, 2009 at 10:32am
How Obama Is Missing His Golden Opportunity To Influence The Future Of The Courts , by David Fontana
- Anonymous
July 17, 2009 at 11:05am
This is a pretty good post but I have a paradoxical view of Sotomayor’s comment and McWhorter’s explanation of it, having watched some, not all, of her confirmation hearing.
I agree that there is non rational tribalist impulse in us all, particularly if we are not of the ascendant social group and more particularly if we have been, are, part of a marginalized, discriminated against, looked down upon group. And I would think that some of that impulse fed her comments. So that’s one part of my view of them and their explanation here.
But the other part is fed by two other things. The first is that it is too pat to posit that rational/irrational cleavage since this was part of a considered speech given many times, a kind of collegiate stump speech, and as Kyl brought out fairly well in his questioning of her, the speech had the structure and flow of a specific and developed argument not inconsistent, apparently, with other of her non court writings. (I have not read the whole speech or her non judge writings.) So there is plenty of rationality operating over considerable time flowing from something more than the blurtings of tribal impulse to which we are all prone.
The second is that, as brought out by Kyl, the immediate context of her “wise Latina” comment in the speech is her comment that “THERE ARE NO OBJECTIVE STANDARDS”. Adding to that comment are her remarks on a panel that I saw a recording of but won’t take the trouble to try to link to, though it has oft been cited, to the effect that the conventional and politically correct line is that judges don’t make policy, but that in reality judges, wink, nod, wink, do. Why that statement did not come up in the hearings to be used against her understandable bromides about fidelity to law, and law and only law commanding legal results, I do not know.
So if had to construct Sotomayor’s world view outside of what her judicial opinions say about her, it wouldn’t necessarily be a bad construction, but it would be a far different one than what she gave to the Committee. (Such divergence, mind you, would not be any greater than that emerging say from Alito and Roberts showing themselves as judicially modest as opposed to being ideologically conservative and that conservatism strongly affecting their legal reasoning and conclusions.)
As for Sotomayor’s quoted statement:
“…America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet we simultaneously insist that we can and must function and live in a race- and color-blind way that ignores these very differences that in other contexts we laud…”
I would distinguish it from DuBois’s as an example of double consciousness. His is rooted in the subjective manner in which a black man in perfervid racist times in America had to navigate keeping soul and body in tact in dealing with white America: keeping soul in tact demanded retaining strong self identity and understanding of whom one is and not conforming in self understanding to others’ views of you; keeping body in tact, sheer survival, physical and social, demanded conforming to those views and expectations about you all the while knowing whom and what you were. That speaks to agonizing and real double consciousness.
But that said, in these times of a much improved racial America, to be sure, not perfect as McWhorter reminds us, but significantly improved, Sotomayor’s posited deep confusion is resolved by the distinction between private and public. In the public sphere, in the state’s provision of benefits and its imposition of burdens, color and racial blindness and merit are uncomplicated ideals towards which to strive, though often very complicated in their application. The celebration of diversity in the private sphere, diversity in that sphere indeed “…shaping our society and in adding richness to its existence..” need not be in any theoretical tension with the ideals of merit and color and racial blindness in the public sphere. So in Sotomayor's comment I think we have more conflated than double consciousness.
Next to finally, this statement is unknowing: “…But when there are many facts in a case, how you choose to prioritize their relevance is not spelled out anywhere. People's experiences will necessarily determine which factors outweigh others in their thinking…” In cases the presenting of evidence is controlled by each side’s theory of their case. A courtroom is not a place of evidentiary chaos; it is a place, when lawyers know what they are doing, where no piece of evidence is led, no question is asked, no document presented, and no submission is made, which, broadly speaking, does not either specifically support a theory or discredit a theory. The tight structuring of the evidence then gets woven together into a synthesized whole by a logical analysis of the evidence in closing argument or jury address. Judges and juries—juries by the jury instructions— are bound by a host of rules as to the weighing of evidence and the finding of facts. That peoples’ personal lenses affect their apprehension of the evidence is merely trite and obvious; but the process is not one of untrammeled subjectivity as the comment suggests, and the ideal of the law is as much as possible to wipe the fog of bias and predilection off those lenses so that as much objectivity as possible is brought to bear on the evidence by the finder of fact.
Finally, it is Sotomayor’s judicial record over 17 years that carries the day for her. It speaks louder than her non judge comments and relegates them to relative unimportance, in my view , in the consideration of her confirmation. That she will when confirmed join lock step with the liberal faction of the court will surprise me not at all.
- basman
July 17, 2009 at 4:37pm
What needed to be said in hearing, but what Judge Sotomayor of course could not say, was this: Graham and the other white men of privilege have their panties in a twist because they are accustomed to defining what is wise and what constitutes a good decision. Needless to say, "wise" is everything they believe and "good" is everything they decide. But a Latina--or any other person excluded from the simple assumption of privilege--may see "wisdom" and "the good" rather differently, if only because they must look from another angle. This awareness of other perspectives is the "empathy" everyone is bandying about, and it's difficult for anyone who simply assumes privilege to cultivate such empathy without sincere and authentic effort. As the Judge pointed out in the same Berkeley talk, a group of white men decided Brown v. Board of Education, so it can be done. But one still may hope that a Latina of tried and proven wisdom might do it better after all.
- ltsisneros
July 17, 2009 at 11:34pm
Thank you John. You said what had to be said. Sometimes, but only sometimes, you have to give good people a break. And Sotomayor is good people. Even more so when measured against the standard set by Jeff Sessions, Anyone who can nail a US Senator like Woody Allen nailed that pompous lecturer from Columbia is OK in my book. Where is Marsh McLuhan when we need him?
Not that I always agree with her decisions. I have always rather fancied Calvinist Northern Irish males as the wisest of the lot when it comes to jurisprudence; though I am forced to admit that is not entirely an objective view on my part.
- dhuey0
July 17, 2009 at 11:35pm
I think McWhorter's piece is highly insightul. Basman, I don't think McWhorter's thesis is that the "chest-beating" or "tribalism" he talks about is limited to spontaneous impulses. I therefore don't think your observation that Sotomayor's statements were made several times as part of a prepared speech undermines McWhorter's thesis. I do disagree, however, with McWhorter's concession that the "wise Latina" statement was in itself problematic. It certainly was not "racist" or "sexist," as Simon Greenwood opines. Sotomayor did not state that Latina women are genetically or inherently better decisionmakers than white men. She stated that, based on "experiences," she would hope that a Latina woman would more often than not make a better decision than a white male who had not had those same experiences. You may disagree, but it is not racist or sexist to posit that someone who has gone through the gauntlet of being both hispanic and female has developed greater wisdom than someone who has not gone through that gauntlet, particularly in matters involving discrimination and civil rights.
Basman, do you really want to argue that one's life experiences do not affect how he or she perceives and prioritize the facts that are presented in a judicial proceeding? Then why do we waste our time with voir dire and jury selection?
- dhurtado
July 18, 2009 at 1:28am
The idea that calling a sex or race inferior has to use genetic justification for it to be racist or sexist is prima facie absurd. This is the rationalization that racists use, and I hope you're not so quick to defend this faulty thinking when it's being used to make slurs about other races.
- Simon Greenwood
July 18, 2009 at 10:12am
dhurt:
1. "My sense is that it is a sentimental notion that occupies an area of her brain outside of that concerned with ratiocination."
2. "but it is not racist or sexist to posit that someone who has gone through the gauntlet of being both hispanic and female has developed greater wisdom than someone who has not gone through that gauntlet, particularly in matters involving discrimination and civil rights"
Sure it is.
3. "...Basman, do you really want to argue that one's life experiences do not affect how he or she perceives and prioritize the facts that are presented in a judicial proceeding? Then why do we waste our time with voir dire and jury selection..."
Are you sure that's what I was arguing. If you're not sure it's a good thing you asked. I said, quoting myself "That peoples’ personal lenses affect their apprehension of the evidence is merely trite and obvious; but the process is not one of untrammeled subjectivity as the comment suggests, and the ideal of the law is as much as possible to wipe the fog of bias and predilection off those lenses so that as much objectivity as possible is brought to bear on the evidence by the finder of fact." And in fact that statement is why indeed "we 'waste' our time with voir dire and jury selection"
- basman
July 18, 2009 at 10:39am
"The idea that calling a sex or race inferior has to use genetic justification for it to be racist or sexist is prima facie absurd."
I'm a bit uncertain of this otherwise elegantly assertive assertion, simon. What strikes me is that someone who bases any judgment purely on gender or race has irreversibly committed themselves to a genetic theory of human hierarchy. If it's not genetic (or some earlier version of "scientific" racial theory such as adaptation to climate or whatever) then what would the basis of such a judgment be at all?
For example, I don't think that the "women can't drive" meme which I remember was quite common when I was a kid in the 60s -- I may have voiced it myself in my 11-year-old squeak -- was based on an analysis of experience of female drivers but on a belief that women as women couldn't drive. That is, it wasn't about inadequate training or lack of familiarity with cars -- something that just happened to disadvantage women as opposed to disadvantaging some other group such as blacks, southerners, or agricultural workers; rather it was about femaleness in itself being an organic, inherent disability when it came to driving.
However, Sotomayor's remarks -- leaving aside some other negative aspects -- do not in fact argue that organic female Latin-ness is the quality that makes the better judge, but rather that certain wisdom-generating experiences that accrue to one who grows up in this great nation of ours with those personal characteristics could be valuable for undergirding better judging outcomes. Indeed, her remarks, if read carefully, imply specifically that an UNWISE Latina -- that is, someone with the same ethnic identity who did NOT glean the appropriate wisdom from her experiences -- most certainly would not be a good judge.
Wrong-headed, perhaps, but not racist.
- ironyroad
July 18, 2009 at 1:22pm
"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."
What "inherent physiological...differences" is Sotomayor talking about here? Foot size? Whether our belly buttons are innies or outies? No, Judge Sotomayor is talking about our prefrontal and frontal cortexes, and she's taking seriously the idea that our core processes of logic and reasoning fundamentally differ according to gender and ethnicity.
If there were true, then there is an unbridgeable gulf between peoples, and we cannot deal with each other by persuasion, but only by power, whether in the form of direct force or - a bit more subtly - by judicial decisions that make stuff up (as is described and/or advocated by some forms of Legal Realism and Critical Race Theory.)
This is a vile idea, and a false idea, and it's no different in principle than the National Socialist idea of Ayan v. Jewish logic. America will never descend to that state, but only because of the continued influence of those with ideas and characters superior to the racialist Sotomayor. (I'll know, I violated [or validated] Godwin's Law; I'll pay the fine later.)
- bcrago77
July 18, 2009 at 1:34pm
How is it that people continue to discuss this reference without mentioning the context? Sotomayor made her remark in the specific context of deciding discrimination claims. In that context, her comment clearly was meant to indicate that a person with some experience of race-based (and probably sex-based as well) discrimination might bring some insights to the issue that a white male would not. What on earth is racist about that?
- nolo93
July 18, 2009 at 1:41pm
Agree with nolo, this article is expanding the remark beyond its original acope
I have interpreted that remark as being in the context of a case where the "minority experience" (for lack of a better term) will inform a judge about the equity & justice for a particular case or set of facts. So, it wasn't so much a statement that Latinas make better judges, but that a person who has been on the short end of the stick, whether formally through job discrimination or informally through social interactions, is more likely to understand the dynamics of ethnic & racial discrimination when those are at issue in a case.
That is not to say that I think this was the best point ever made by a public figure, but people should be free to express their personal opinions in public, and there doesn't seem to be a record of Judge Sotomayor deciding actual cases with a broad racial/ethnic brush.
- markentel
July 18, 2009 at 2:22pm
Mickey Dub: I don't really wanna, but I'm going to have to accuse you of being disingenuous here...her statement, it seems to me, obviously addresses not the racial issue, but the experiential issue...and you, as someone who plays with words and language professionally, know that full well...which means you are spinning it as evidence for your pre-formed thesis...I think the Manhattan Institute is melting your brain...
And, though I am hardly an expert on Chicago politics, Obama's choice to sit in Wright's pew seemed a political decision, a way to demonstrate that he was 'down'...
bcrago77: there are no "inherent physiological...differences" between the genders? You mean girls have all that stuff surgically implanted? My dating paradigm is seriously at risk now...
- porkido
July 18, 2009 at 3:16pm
Porkido,
Sotomayor wasn't only talking about gender. She was talking about "inherent physiological...differences" in "gender and national origins."
(And even if she were just talking about gender, your answer seems to deliberately miss the point. No one is denying physiological gender differences. But how do those differences - which you astutely explored while dating - "make a difference in our judging"?
To repeat: Sotomayor was talking about - and endorsing as a respectable idea - brain-based differences among different ethnic groups, which lead to basically different ways of reasoning and judging. And that's why she's a racialist.
Read and retain the whole paragraph before responding:
"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."
- bcrago77
July 18, 2009 at 4:47pm
bcrago: now it's your turn to read the sentence, reasonably...
"whether from experience OR inherent physiological OR cultural differences...gender and national origins may and will make a difference"
You needn't apply every permutation to this statement, since she is using the word 'or'...in other words, it's a broad generalization meaning: 'however you want to look at it'...
Sotomayor is not analyzing the chemistry of brain states; she's suggesting that people of differing 'gender and national origins' will be, to at least some extent, influenced by those differences (whatever the actual vector of the difference) in their consideration process...this strikes me as a non-controversial statement.
Your tortured parsing of the sentence is exactly the same as that which got us into this spitball war in the first place...
- porkido
July 18, 2009 at 5:53pm
The quote is about experience that accrues growing up with a particular identity in the U.S. and the wisdom to be gleaned (or not) from that experience. Nothing more, nothing less.
- ironyroad
July 18, 2009 at 6:17pm
I think my tone was overly combative, and I'm sorry for that, so all make make one final point, then I'll go.
Generalized talk about different cultures or experiences making us more attuned to certain facts, and thereby affecting judging, is one thing. That's pretty much standard boilerplate blather. For even when that is the case, that still leaves in tact a common denominator of reason by which we can appeal to each other, and persuade each other.
But coupling "inherent physiological differences" with "national origin" is another thing entirely. In the context of judging, "inherent physiological differences" does mean brain differences, leading to fundamental differences in ways of reasoning. It is a deterministic element that un-melts the melting pot, and separates us. We cannot rationally persuade each other if we are physically determined to reason in opposing ways.
Now, Sotomayor did not state categorically: "I'm a racialist; there's a Latin Logic, and a White Logic, and never the twain shall meet."
She said, rather, that she didn't discount the idea or find it abhorrent - at least not as much as Judge Cedarbaum. She entertained it as reasonable.
I think that's unreasonable and dangerous.
(I don't think physiological differences are per se irrelevant to mental processes of different groups. E.g., I don't think Larry Summers should have been run out of Harvard for suggesting a possible physiological reason, among other reasons, for the lessor percentage of women v. men in the very highest reaches of mathematics. That's different than positing general, and basic differences in the way those of different ethnic groups think, which "may and will make a difference in our judging.")
- bcrago77
July 18, 2009 at 7:06pm
bcrago77 (whether you read this or not):
She doesn't couple "inherent physiological differences" with "national origin"...that's precisely what I was saying in my last post...she rattles off all the "possibles" at the beginning of the statement...but you surgically remove one phrase, and graft it onto another, when that is obviously not what she was thinking (as far as I can tell without actually being her) or saying...
Really, I think you're trying too hard here. It's gotten to the point where if she says, "As a young Latina, I enjoyed drinking aguas frescas..." someone's gotta start screaming, "WHY CAN'T WHITE PEOPLE ENJOY AGUAS FRESCAS? RACISM!!!!"
Really. Let it go.
(and I agree with you about Larry Summers...but, from a political perspective, him being the President of a Very High Profile University, he really got his loafer lodged pretty far down his windpipe)
- porkido
July 18, 2009 at 8:10pm
Basman,
To my statement, "but it is not racist or sexist to posit that someone who has gone through the gauntlet of being both hispanic and female has developed greater wisdom than someone who has not gone through that gauntlet, particularly in matters involving discrimination and civil rights," you say:
"Sure it is."
Me: No it is not. So there. :-) Seriously, I will give you the respect of explaining my statement, to the extent it wasn't already clear. I would regard it as racist and/or sexist to posit that a Latina is genetically or inherently advantaged over white males in judiciial decisionmaking. I do not regard the following proposition as racist, even if it is not true: (1) experience, particularly experience in overcoming obstacles, makes on wiser and therefore able to make better decisions based on that experience; (2) Hispanic women, because of discrimination, and language and economic barriers, generally have had to overcome more obstacles in life than white men, particularly those who are judges. Therefore, (3) a Latina who has had to overcome many obstacles will, more often than not, make better decisions than a white maile who has not had to overcome many obstacles.
You may regard either or both of those premises as untrue, and therefore the conclusion as untrue. But I think the proposition is not racist or sexist because does not posit an inherent superiority.
As to your third point, I acknowledge that I misread your argument, which on second reading I understand to be that "peoples’ personal lenses affect their apprehension of the evidence" but that the judicial process largely corrects for and purges the bias that might result from apprehending the evidence through those lenses. That may be the ideal, but I think it is largely fiction. I take your point further to be that voir dire and jury selection are designed to populate the jury with people who can view the evidence objectively. But I think we both know that trial lawyers use voir dire/jury selection to populate the jury with people whos personal experiences will lead to find in their client's favor. And I think we both also know that different juries could very well come to different results based on the same evidence. So I do not think it is a trite obervation that a judge or juror's life experience can have a profound affect on her factfinding or decision-making.
- dhurtado
July 19, 2009 at 1:07am
Good article. But just to stir the pot a little, let me add that I sometimes hear people use this same argument to defend those Old South-type events where white fraternity and sorority kids dress up in Confederate uniforms and hoop skirts. A quick search turned up this telling quote from such an event just a couple months ago:
"I don't believe these young folks were in any way trying to be racist," said [an observer] "But they were being insensitive. I don't think they understood the broader implications of what they were doing."
Stripped of context, those words could apply to Sotomayor's speech or any number of similarly unguarded words or actions.
Of course you can't really strip away context. But before anyone raises the (legitimate) point that "sensitivity" is an ongoing entitlement of the oppressed and not the oppressor, it's worth noting that the Old South itself also represents a defeated people and destroyed culture.
- gwolfjr
July 19, 2009 at 1:49pm
...Me: No it is not. So there. :-) Seriously, I will give you the respect of explaining my statement, to the extent it wasn't already clear...
You are right. I was being needlessly flippant and I will accord you the same respect.
But right now what I laughingly call the real world needs to be dealt with. So just let me find some time.
- basman
July 20, 2009 at 11:23am
And That's The Way It Was , by Todd Gitlin Why Sotomayor Felt The Need To Make Her ‘Wise Latina'
- Anonymous
July 20, 2009 at 2:16pm
gwolfjr raises an extremely pertinent argument here, one that I've puzzled about a longish time (mostly arising out of studying southern literature in recent years, rather than any personal/family connection to the South). If the argument to "cultural identity" politics is made in defense of one group, how can one discriminate between different groups without saying, or implying, that one identity is worthwhile and another isn't? Why is it ok to advance a Puerto Rican component in one's makeup as a plus, while it's mostly uncool to advance a southern white component?
The standard liberal response, that the latter component glorifies the slave South while the Puerto Rican component is the badge of an ethnic and social outsider in American society, is legitimate per se but doesn't quite answer the question. For example, is anyone seriously claiming that slavery is being held up as a model in 2009? Is slavery the only -- even if it was a central -- element that gave southern society its character and personality (for good or ill)? Why did people who had no interest in slavery fight for the Confederacy anyway? Was the courage of Confederate soldiers on the battlefield any different type of courage than that we might admire under normal circumstances?
Despte our heartfelt condemnation of slavery, we haven't in fact treated the South like Nazi Germany (except perhaps in first few years of Reconstruction, roughly 1868-73, where there are some parallels). The current German law is quite consistent about the use of Nazi symbols in public -- they are subject to criminal prosecution, and no arguments about "culture" or "identity" are going to roll that principle back. In America, however, we separated the politics of slavery from the identity of the South and the Confederacy, so that among others a highway in northern VA, not far from the District, can cheerfully be named for Jefferson Davis, a traitor and seccesionist who wanted to defend slavery at all costs.
The "Old South" is indeed about a defeated people and a destroyed culture. But, paradoxically, defeat and a lost culture can prove -- and in the case of Dixie, did prove -- to be a potent mixture, and can send an echo through the body politic for a long, long time.
- ironyroad
July 20, 2009 at 3:06pm
Gates-gate is the culmination of one of those occasional spates of race-related events that occur and
- Anonymous
July 26, 2009 at 2:15pm