Just-So Story of teh Aeon
In Which Julian Sanchez Joins the Special Action Executive of La Raza

Sotomayor vs. Cardozo

Michael O'Hare gets one wrong:

The Reality-Based Community: Diversity: One of Sonia Sotomayor's lower-candlepower remarks was the one about a Latina judge making a better decision yada yada...

Actually, it was a high-candlepower rhetorical move, as Michael would realize if he had read Sotomayor's speech more carefully.

OK, boys, girls, and xenosophonts. Ready? Let's role the videotape:

Judge Sotomayor begins this part of a speech with a generally-accepted pious American liberal platitude:

A Latina Judge's Voice: 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...

Everyone expects her to agree with O'Connor and develop the point. Instead, she cuts across the grain by questioning the platitude, introducing doubt into the issue. She then wakes the audience up by violating their expectations:

I am not so sure... that I agree...

Now that she has the audience's attention, she is playing for high stakes: she must justify her introduction of doubt into the mix. She does so by first making a general point:

First... there can never be a universal definition of wise...

Thus it seems likely that men's wisdom and women's wisdom will be somewhat different, and thus that their wise judgments will be somewhat different--not better and worse, but different. Then, however, she raises the stakes even higher with her assertion:

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...

Here she has raised the stakes by committing a form of heresy against modern liberal American values. Note that she is choosing her words carefully: she--for she is the "wise Latina woman with the richness of her experiences" has not said that she is or will be a better judge (contra Michael O'Hare, who claims that she said "Latina jduge making a better decision yada yada..." which she did not say) but rather that she personally "hopes" that she will be a better judge--and one is always allowed to hope that one will turn out to be the best.

At this point in the speech she is all in. How can she justify her hope that her experience of being a brilliant upwardly-mobile Latina woman in twentieth century America will make her a better judge? She has the audience's complete attention by now, for that is a very ballsy assertion to make. And she delivers in the very next paragraph:

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination...

This is game and set for Sotomayor. Holmes and Cardozo were great judges. Sotomayor is saying: even though they were great judges they judged wrong in cases of sex and race discrimination. Sotomayor is saying: I am a better judge in cases of sex and race discrimination than Holmes and Cardozo. Thus there is at least reason to 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..."

This is game and set for Sotomayor. But she still has to win the match. Why is there reason to hope that we judges going forward can do better than Holmes or Cardozo did? It is not that people who don't look like us or have the same plumbing that we do can't have the empathy--the "wise and understanding heart" that Solomon begged of The One Who Is--to be a good judge:

I... 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.... [N]ine white men on the Supreme Court in the past have done so on many occasions...

But it is hard work to always remember to have and use your wise and understanding heart:

However, to understand takes time and effort, something that not all people are willing to give. For others... experiences limit their ability to understand.... Others simply do not care...

And it is perhaps slightly less hard work for people from groups that have historically been on the outside:

Hence... 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...

But when will these differences in her judgments from those that Holmes and Cardozo would have made be good differences, and when will they be bad differences? This is the lesson Sotomayor draws:

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that... I owe [the parties before me] constant and complete vigilance in checking my assumptions, presumptions and perspectives; and ensuring that, to the extent that my limited abilities and capabilities permit me, that I reevaluate [my assumptions, presumptions and perspectives] and change [them] as circumstances and cases before me require. I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations.... [W]e who judge must not deny the differences resulting from experience and heritage but [must] attempt... to judge when those opinions, sympathies and prejudices are appropriate.

Match to Sotomayor.

To call this rhetorical journey a "lower-candlepower remark..." and to summarize is as "about a Latina judge making a better decision yada yada..." is highly unfair.