The Magazine

'A Wise Latina Woman'

The context shows that Judge Sotomayor meant what she said.

Jun 15, 2009, Vol. 14, No. 37 • By JENNIFER RUBIN
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Sotomayor begins with a homage to her ethnic background and personal experiences--and indeed pronounces the topic of her speech to be "my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench." She goes on to describe in some depth her favorite ethnic foods and her memories of extended family celebrations. She never explains what "Latina" identity means much beyond "I became a Latina by the way I love and the way I live my life." How that might translate into a set of values, intellectual precepts, or methodologies for judging remains unexplained. The description of her ethnic identity is notable in its lack of intellectual content.

But she then gets to the heart of the matter: Whatever it means to be a Latina, the critical issue is that there aren't enough Latinas (or Latinos) on the bench. The bean-counting then begins, a long parade of statistics meant to illustrate her central point: "Those numbers [of Latino judges] are grossly below our proportion of the population." No consideration is given to whether Latinos have obtained the requisite educational or professional achievements or qualifications to qualify for federal judgeships; the key point is the percentage of the pie that they have secured. And the implication is clear: There is something very wrong, nefarious in fact, when a minority group's percentage in the population and its share of seats on the bench don't match up.

The reason for that fixation on numbers becomes apparent in the next section of her speech, which is devoted to debunking the views of a former colleague Judge Miriam Cedarbaum:

Now Judge Cedarbaum expresses concern with any -analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then "as not capable of reasoning or thinking logically" but instead of "acting intuitively." I am quoting adjectives that were bandied around famously during the suffragettes' movement.

Cedarbaum's view--an affirmation of the innate intellectual equality of her fellow citizens--is what Sotomayor proceeds to dispute at great length. Sotomayor derides the idea that we should be wary of stereotyping individuals' intellectual abilities by their ethnic or racial background or gender. She argues the precise opposite, that intellectual equality is a myth and impartiality a canard:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Stephen Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. .  .  . Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.