Posted by Todd Zywicki: The "Wise Latina": http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244730308
Like everyone else, I've been following the kerfuffle around "the wise Latina" remark. Here's my short take on it: 1. I think she probably meant it when she said that she believed that her background and upbringing would make her a "better" judge than a white man (or white woman). I don't think she meant it would merely make her "different," I think she probably really thought (and thinks) it makes her "better." She has said similar things enough to suggest that she truly believes it. 2. That she believes it does not make her a racist. Similar statements could be made if a dwarf or a football player or an immigrant or someone who overcame cancer or a former astronaut were nominated--that their background makes them a "better" judge than someone who lacks that background. 3. That idea--that your background can make you a "better" judge--is, in my personal opinion, a silly idea that mischaracterizes the proper view of a judge. Nonetheless, it is a perfectly mainstream view in the academy and legal profession today--which I suspect accounts for how uncontroversial her statements seemed when they were uttered at places like Berkeley. Anyone who has attended a faculty workshop in the past decade at least wouldn't bat an eye when someone says something like she said. It is sort of lowbrow legal realism, perhaps tinged with a bastardized critical race studies view of the law, taken to its extreme. She was really just parroting something that she picked up along the way during her life. The statement is the sort of thing that sounds like a sophomore philosophy student who is active in the sorts of circles she spent her education in and has never been pressed to actually examine that conventional wisdom. Frankly, I find it to be sort of an intellectually embarrassing statement for someone of her education and distinction to hold. I'm not even sure she has the slightest idea of what that statement means and has never seriously thought about it. It is just something you say when you move in those circles and everyone nods their heads seriously. 4. Given the lightweight and intellectually unserious way in which she states the principle, it is hard to imagine that this would actually affect her judging, as opposed to being the sort of thing that you say when you are trying to appear profound in an academic setting. This really is the sort of stuff that gets spouted a thousand times a day on university campuses all over America. There are academics who work these things out and defend the conclusion. I don't think that Sotomayor is one of those people--she is just a lawyer/judge who picked up some third-hand rendition of the idea and decided it sounded profound. I don't think it even amounts to a jurisprudential philosophy as much as just repetition of the conventional wisdom in her circles. 5. The idea that one's life experience matters to judging is exactly what President Obama had in mind when he suggested that "empathy" is an important attribute of a judge. The view is quite mainstream in their legal circles, from what I can tell, and even though I disagree with it I understand the logic of the argument. 6. In my opinion, Sotomayor's comments are way, way more relevant and concerning than the outrageous (in my view) attempts to attack Justice Alito over his membership in "[1]Concerned Alumni of Princeton." The McCarthyite attacks that were made on Alito about CAP and to try to suggest that it suggested that he was a racist or a sexist were way beyond the pale and in many ways a new low in confirmation hearings. Sotomayor's statements are at least relevant if one considers judicial philosophy to be relevant as they seem to suggest that she believes that a judge's personal experience should be relevant to judging (at least that's how I read the idea). The attacks on Alito were just crude character assassination. 6. I think this might be the most interesting issue that arises in her confirmation hearing--will she try to justify her statement or back away from it? Will she say that "better" really means "different" or that she really believes that she is a "better" judge as a result of that experience? There seems to be a sense that what is a fairly commonplace view in the legal academy and activist circles is out of step with what the majority of Americans think of as being the proper role and character of a judge. It will be interesting to me to see how this culture clash gets navigated. Obama says that she "misspoke"--but unless I'm mistaken, he has never explained what she actually intended to say. Obviously she should be given an opportunity to clarify her views--it will be interesting to see how exactly she decides to clarify them. 7. My bottom-line view is that none of this should really matter. When it comes to the Senate's Advise and Consent role I think that the Federalist Papers (as I read them) pretty much have it right--the purpose of the Advise and Consent role of the Senate is to make sure that justices nominated by the President have the integrity, experience, ability, and independence to uphold the Third Branch as a coequal branch of government. As I read it, the purpose of shared authority between the President and Senate is to make sure that justices who are appointed are not cronies of the President but will act as an independent third branch. I also recognize that this is a fairly naive view of Senate confirmation post-Bork. From a political, rather than constitutional perspective, I have no opinion as to whether it is worth it for opponents of Sotomayor to try to attack her the way that Bork and Alito were smeared, although simply for the good of the country I would hope that they wouldn't sink to quite those depths. References 1. http://www.salon.com/opinion/conason/2006/01/13/alito_controversy/ _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
