Let's investigate shall we?
First, if you haven't read the entire speech, perhaps you should.
Now, let me tell you what I see. I see a Latina woman talking about race and gender issues and their history in the courts. I further see the title of this speech is "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." So, when we get to the infamous, oft misquoted, phrase that is the context.
Here's an interesting piece:
Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.Now, I am a white male, but I'm not at all offended by the concept that a woman might have a different understanding of gender discrimination. Given that many, if not most, women have suffered this type of discrimination, and I certainly have not, why would I not assume that a woman would be able to recognize it easier than I?
Anyway, let's get into the meat of the issue:
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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
I'm sorry for the length. However, it is absolutely necessary to get the full context in order to realize what Sonia Sotomayor is saying. She believes that the experiences that a person has will shape their understanding of issues in society. The fact that women were so present during critical decisions regarding the recognition of rights is probably due to the experiences they themselves faced with respect to discrimination. They understood the damage it did, the way it hides in society, the way the simple acceptance of tradition leaves genders, races and sexual orientations without rights. A white man, like myself, who has never experienced these issues first hand has a lower probability of understanding these issues -- but as Sonia states, it certainly is not impossible.
Guess what? I, and most people who aren't illiterate, am forced to agree with her. A person, in her case a wise Latina, would be able to apply more insight into race and gender discrimination issues than many white males.
I'm sorry if that offends anyone, but it sure as hell is not racist. It also fits her recent testimony when she describes the speech as intended to inspire a Hispanic audience. It should, as it suggests that they have something unique and valuable to offer to the courtroom -- their particular experiences with respect to gender and racial issues.
The conclusion I am forced to draw? Our politicians have been creating a circus out of nothing, as surely they know the truth, but it is very easy to anger the political base by trotting out reverse discrimination. All the angry old white republicans will lap this up.
Hopefully you are smarter than that?
