On Hardball yesterday, Pat Buchanan argued that Sonia Sotomayor "says her sex -- her gender, excuse me -- and her ethnicity are going to influence her decision. She will decide differently from a white male." Likewise Stuart Taylor has asked "do we want a new justice who comes close to stereotyping white males as (on average) inferior beings? And who seems to speak with more passion about her ethnicity and gender than about the ideal of impartiality?"

I've already responded to some of Taylor's assertions, so I won't do that here. I merely want to point out this passage from Samuel Alito's confirmation, highlighted by Glenn Greenwald:

Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.


When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

This is Samuel Alito, arguing that his experience of being the son of Italian immigrants, his knowledge of discrimination, gives him empathy that offers insight into such cases. How is this qualitatively different from Sotomayor saying that her knowledge of such things might maker her a better judge? It isn't--in fact, Alito is arguing the same thing, that his life experience gives him insight into the way laws affect people in real life, the exact quality Obama said he was looking for in a nominee. Like Sotomayor, Alito was merely commenting on the way life experience shapes one's vision of the law.

The conservative freakout over Sotomayor's remarks, as opposed to the way Alito's were marketed as a selling point for him as a judge, makes a remarkably salient case for why we still need affirmative action. Two judges made similar points--one was an Italian American man, the other was a Latino woman, both accomplished on the bench--but what was sold as a strength for Alito makes Sotomayor a racist. Taylor and Buchanan, while attacking Sotomayor, have inadvertently made the case for a policy they'd like to see eliminated, by proving that all things being equal, a minority woman is held to a different standard than the white man of similar background and experience.

-- A. Serwer

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