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Boy, Mack McLarty is a Lucky Guy | Main | Senator Coburn Will Seek Re-Election
May 29, 2009

Is Sotomayor Racist?

At Volokh, Ilya Somin says no:

Both Taylor and I have been very critical of Judge Sotomayor's 2001 speech where she claimed that "a wise Latina" judge will generally make better decisions than a white male one, and argued that judges can often legitimately base decisions in part on their racial or ethnic identity. I believe her position is wrong. But it isn't racist. Sotomayor did not suggest that whites are an inferior race relative to some other group or that they should be denied equal rights or relegated to second-class citizenship. Conservatives often rightly denounce overblown accusations of racism advanced by leftists. For that reason, among others, it is important that they avoid committing the same sin themselves.

What's Somin's definition of racism? Re-stating his negative as an affirmative, it appears he thinks racism is "suggest[ing] that whites are an inferior race relative to some other group or relegated to second-class citizenship."

Well, Sotomayor did not expressly contend the latter, but she sure as hell suggested the former: She believes that, "more often than not," a wise Latina will perform her job better than a white male. For no other reason than she is, in fact, a wise Latina.

(And, in fact, if you believe the former, the latter pretty much flows from it as an unavoidable consequence. But I don't need to prove that, as Somin allows that either prong of his test establishes racism.)

I'm having difficulty reading this in any manner but a flat-out assertion of Wise Latina Power.

What's odd is that just the day before Somin found Sotomayor's remarks highly objectionable, and still apparently does; and that objection is based upon the racism -- or, let us say, racial content -- of the remark:

Even if Sotomayor's claim really is limited to discrimination claims, it is still deeply problematic. It is wrong to assume that a judge belonging to a group that is often victimized by a particular type of injustice will be generally superior in deciding cases that address it. Are white male judges generally superior in hearing reverse discrimination cases such as the one Sotomayor decided in Ricci v. DeStefano? Are judges who own real estate better qualified to hear takings claims? Perhaps judges who own businesses are the ones best qualified to hear claims asserting that an economic regulation is unconstitutional or otherwise illegal. A judge belonging to a group victimized by a particular type of injustice might be less likely to reject similar claims that have merit. On the other hand, she might also be excessively prone to accept claims that should be rejected or to ignore important interests on the other side of the case. Which effect dominates the other will probably vary from judge to judge and from case to case. In any event, we will likely be better off if judges assess discrimination cases and other claims as objectively as possible, while seeking to minimize the impact of their own personal racial or ethnic backgrounds.


Finally, I think it's telling that hardly any one would defend a similar statement made by a white male judge. As legal columnist Stuart Taylor puts it:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" and had proceeded to speak of "inherent physiological or cultural differences" [as Sotomayor did later in her speech].

He does go on to say in that post...

I don't think that Sotomayor is a "racist and a sexist," nor do I think she should be "banished from polite society." However, her statement does show that she believes that judges should often base decisions in part on their personal racial and gender backgrounds. If a white male judge had said something similar, few would deny that such (or something much worse) was the import of his words. Sotomayor's speech should be judged by the same standards.

I don't get this argument from Somin -- or Taylor, who says the same thing. Both criticize Sotomayor for making "deeply problematic" racial comments, but then insist it's wrong to call her a racist. Their real problem seems to be that the term is impolite -- fine, but that's like proving up and down that a woman works as a prostitute and then saying "But we shouldn't call her a whore." Well, fine. Let's call her a paid escort. Means the same damn thing, but I do admit "paid escort" sounds nicer.

It's an ipse dixit entirely unsupported by the case they themselves are both making -- quite the opposite.

If the word itself gets thrown about too much, as both contend -- well, that's due largely to reverse racists of Sotomayor's ilk who believe and proclaim they are superior due to their race (or gender), and that those who oppose them or their belief systems must do so due to their own inferiority in "understanding" and lack of "empathy" or outright racial animus.

If they're so stuck on the word: Fine, big deal, we won't call her a "racist." We'll just say precisely what they both seem to agree with (and indeed affirmatively contend): She believes herself superior to "white males" based only upon her ethnicity and gender. I'm content with letting people decide for themselves whether that accords with accepted definitions of "racist."

Disagreements with Stuart Taylor aside, do read all of this piece, or rather all of it after his brief condemnation of Limbaugh and Gingrich for calling a woman who believes in her ethnic superiority a racist. Start at "Wehrner's brief post," about six paragraphs into it -- trust me, it's good.

Teaser: Obama's a liar.

One more thing: As Somin notes, the Washington Post and other liberal apologists are attempting to cover for Sotomayor by referring to her statement about "wise Latinas" as an "unscripted remark." An off-the-cuff remark she didn't have much time to think about, so of course maybe she just misspoke.

The problem with that? The remark was part of a speech she prepared, edited, and then delivered. It wasn't off-the-cuff. It was written in advance, considered, shaped, edited. She wasn't speaking extemporaneously at all. As Somin notes:

I would have cut Sotomayor more slack if the statements in question had been off the cuff remarks rather than part of a prepared speech delivered as a keynote address at a conference; the speech was also published in a law journal in 2002, at which point Sotomayor could have removed or clarified any part of her remarks that didn't really reflect her considered views. I would also be willing to ignore the speech if she had repudiated it at any time in the past eight years. I will even give her the benefit of the doubt if she repudiates the more problematic parts of the speech now (perhaps at her confirmation hearings). We have all sometimes made mistaken statements that we admit to be wrong in retrospect. But until that happens, I can't avoid the conclusion that the speech reveals a troubling element of Sotomayor's view of judging.

This wasn't an "unscripted remark," Washington Post. It was very much scripted. And further, it was unprompted -- it was not a quick response to an ambush question she wasn't expecting. It was something she decided on her own needed to be said, without anyone prompting her about it or "tricking" her into offering a wrong-footed answer.

She could have discussed any number of things in that speech. Among the topics she herself chose to discuss, and proclaim, was the inherent superiority of the wise Latina.

I continue to be confused by Somin and Taylor. If it's not the racism of the remark they find "deeply problematic" and "troubling," what is it?

digg this
posted by Ace at 03:24 PM

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