The attacks on Sonia Sotomayor for being a "racialist" are laughable, but no more so than when they come from Stuart Taylor. Taylor, like others has taken this statement from Sotomayor completely out of context: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." Taylor writes:
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."
First of all, Sotomayor did not speak of "physiological" differences, she was talking about life experience, and the idea that someone with the experience of being discriminated against might offer insight that those who haven't had that experience wouldn't have. Taylor's objection is based on two social assumptions that need to be utterly destroyed, the first being the idea that social perspective of white, Christian, heterosexual males are somehow "objective" and uncolored by life experience, and the second being the idea that acknowledging cultural specificity among non-whites is the same thing as assertions of white supremacy by whites. The fact is that many Latinos have faced a specific experience of systemic and social discrimination not shared by non-Latinos, and this experience colors their perspective just as not having it does. If there's anything problematic about Sotomayor's statement, it's that it is as nonspecific about "whiteness" as Taylor's is.
What people like Taylor find so offensive about Sotomayor's statement is that it properly exposes the perspective of white, Christian heterosexual men as specific to their experience, rather than the omniscient eye of G-d they're used to presenting it as. Does anyone seriously believe Dred Scott or Plessy v. Fergueson would have been upheld by any court that had the remotest idea of what it was like to be black or a slave? Or similarly that the court would have held in Minor v. Happersett that being a citizen didn't mean you had a right to vote if you were a woman? Do we really believe that judges in these cases were "simply upholding the law" in the absence of the cultural and social prejudices of their times?
The hypothetical example Taylor cites above is also not remotely equivalent, had Alito said referred to his small town values, religious background, or being the son of Italian immigrants, conservatives would have applauded him. In fact, that's exactly what happened--Sotomayor's story is bigger news because she would be the first Latino on the court, but conservatives played up Alito's modest small town and Italian roots, to the point where Senator Orrin Hatch suggested in 2005 (via Nexis) that Democrats could lose the Italian American vote by opposing him. "I think Democrats have to be very careful here because many Democrats think they own the Italian-American vote all up and down the East Coast," Hatch said. "Well, they don't, but they think they do. But if they become offensive against somebody with the qualifications of Sam Alito, Judge Alito, then I think it's going to be held against them." The key here is the imbuing of culturally nonspecific "whiteness" with inherently positive traits, because "whiteness" is a fiction contrived to assert racial superiority. White people are as ethnic and culturally specific as non-white people, and there is a qualitative difference between asserting a specific cultural heritage and experience and lauding the inherent values granted by skin color.
Moreover, Taylor, who believes the greatest injustice in Western history was Sotomayor's failure to ignore established precedent in the Ricci case and act as an empathetic, activist judge on behalf of a plaintiff he finds sympathetic, has been a fervent supporter of racial profiling. Sotomayor's statement about life experience affecting the way judges rule is a plainly innocuous statement, and contains none of the malice Taylor attributes to it. But I'd be interested to understand how Taylor explain how the law should be color-blind in situations when he feels whites might be disadvantaged, but not when it comes to assuming people are criminals or terrorists based on the color of their skin. That sounds pretty "racialist" to me.
UPDATE: Commenters point out that Sotomayor did use the phrase "inherent physiological or cultural differences" in her speech. I should have been clear in the original post, but it appears to me that Sotomayor was using "physiological" to refer to gender, rather than race. I don't agree with this, but it also seems worth pointing out that she also said "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."
UPDATE II: On second thought, this is a much stronger quote:
I am reminded each day that I render decisions that affect people concretely and that I owe them 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 them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.
Obviously, she thinks she's better than everyone else.
-- A. Serwer
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