Tuesday, June 2, 2009

The "wise Latina" Comment

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.

- Judge Sonia Sotomayor, 2001
Emphasis Added
That was long, but I put the full text because the context is important. Reading all of this together provides a context that has been missing in the debate over President Barack Obama's supreme court nominee, Judge Sonia Sotomayor. The harshest critics have branded the judge as a racist, while others have suggested that the comments were a mistake. However, it should be obvious to any honest and informed observer that such a statement is neither racist nor mistaken. It seems clear that these words represents a basic truth: one's personal experiences matter in the decisions they make.

Some, including the President, have argued that the "wise Latina" sentences represented a poor choice of words. This would be a plausible explanation if the statement stood in isolation. However, in context it is clear that the original meaning of Judge Sotomayor's words has been twisted beyond recognition. Many on the right have repeatedly stated that she said she is a better judge than a white man because she is a Latina. Some have even extended this to be a statement of superiority, that the judge thinks she is better than white people.

It always amazes me that white people manage to get away with saying that minorities said things we never said.

Clearly, Judge Sotomayor was arguing a point with which there should be no argument: one's personal experience matters. If that were not true, than it would be OK to have an all white male Supreme Court for now until the end of the age. However, we know that such a bench would not be a good idea. How do we know that? From experience. We used to have an all white male Supreme Court. During this time, the Court denied citizenship based on race, upheld racial segregation, and ignored discrimination against women. I doubt that an African American who had the experience of using sub-standard, segregated facilities would agree that separate could be equal.

Think about it. Minorities have experiences that whites don't have. These experiences can prove useful in deciding difficult cases. If it were as simple as knowing and applying the law, then there would be no need for the multi-level appeals process that we have today. However, as we all learned in elementary school (or at least were were supposed to learn), it's the job of the courts, especially the Supreme Court, to interpret the law. Interpretation is always difficult, because different people always have different interpretations of the same thing. This is no different when it comes to the law. Again, all judges would agree on everything if this was not true. We know that judges often disagree sharply on the interpretation of certain laws. This disagreement is due, in part, to a difference in experience. Each judge forms there interpretation by drawing from a wealth of knowledge and understanding build up over many decades of experience. These experiences help them to understand a situation and, ultimately, pass judgement.

Considering all this, it's reasonable to assume that a diversity of experience would be a benefit to the court. I don't know how well Judge Sotomayor's parents spoke English when the emigrated from Puerto Rico, but I would assume that here experience growing up in a home with immigrant parents would give her a deeper understanding of the issues surrounding those who speak English as a second language, and better equip her to rule in cases dealing with such an issue. If there were a case involving discrimination against African American students in a public high school, I would hope that, being an African American who was once a student in a public high school, I would have a more intimate understanding of the forces at play, and thus be able to render a better ruling than someone who understands the situation only from words on a paper or brief verbal arguments.

But let's extend this even further. We live in a society in which whites constitute the dominant culture group. This creates white privilege, and one of the many unfortunate side effects of white privilege is that it is largely invisible to whites. This produces mass hypocrisy, such as when white commentators bemoan the fact that a Latina judicial nominee will be influenced by her experience as a minority, forgetting that their experience as a member of the racial majority impacts their own views. Another side effect is that, except for when they decide to complain about "reverse racism," whites are not forced to confront issues of race. Of course many do because they want to make our nation a better place and understand that the only way to do so is to confront and seek to correct its flaws. However, whites usually have the choice to ignore race but such blissful ignorance is not an option for minorities. This means that minorities usually have spent more time exercising the intellectual muscles that deal with racial issues. Their views are often more developed, complex, and comprehensive as this is a necessity for survival and success. As far as I can see, this allows for minorities judges to decide cases with greater clarity and thoughtfulness than an average white judge. Does this mean that minority judges are automatically better? No. But it does mean that in this particular area their life's experiences have forced them to develop skills that many whites have not, and when they do it is almost always by choice, not by necessity.

Furthermore, let's remember that one of the purposes of the court is to protect the rights of citizens. Who do you think needs more protection from the court: the oppressed minority or the dominant majority? Clearly the minority. Given this, there is a real benefit to having a minority perspective on the court - something which is currently non-existent (unless you count Justice Thomas, which I don't). Thankfully, there is one woman on the bench, but I'm pretty sure that women make up more than 1/9 of America.

So, would a "wise Latina women" be able to "draw on the richness of her experiences" to reach a better conclusion than a white male who hasn't lived that life"? I would say most certainly. But then, I guess according to conservatives I could never reach a fair conclusion on such an issue because I myself am a minority.

And white people are never biased.

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