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The Two Statements of Sotomayor


There are two statements made by Judge Sotomayor which are making their way around Internet blogs and media outlets, but for all of the writen and verbal discourse regarding these statements, I see very little critical analysis eschewed.  There have been calls of racism against Sotomayor and juxtaposed claims of her statements being taken out of context; therefore, let’s examine both statements with a critical eye:


Statement 1

“I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

 Statement 2

“A court of appeals is where policy is made.”

The first statement is obviously the one that has had racist characterizations attached to it, and the second statement is one where opponents stress that the statement amounts to judicial activism.  Let’s study the first statement and analyze it within its context. 

The first statement was taken from a speech made at Berkeley and within the context of the speech the theme appears to be about differences rather than a superiority of one individual over another.  Racism is a serious charge.  Given the way racism labeling was used in the last election the charge seems to have been diminished, but let us for our purposes here remain committed to the idea that racism is a serious charge to make against another person.

I believe to some extent it is egregious to summarily state that Judge Sotomayor’s statement is racist.  It takes a more careful eye and a more critical thought to understand her statement and to question her motives.  I think a fair assumption that we can make about Judge Sotomayor’s speech given at Berkeley is that she passionately believes that her life experiences make her the woman she is and influence her thoughts and opinions.  As a result, I believe she is arguing that her decisions as a judge are profoundly influenced by that life experience.  However, the words that remains in trouble with our contemplation of whether or not her statement is racist is the use of the word better rather than using the word different.

I do not know Judge Sotomayor’s heart, but I suspect we will hear her testify as to her meaning of this statement.  I tend to believe that Judge Sotomayor is far from a racist and that her use of the term better in this statement rather than the term different speaks more to her possible arrogance than a racist tendency.  But more important for me is that fact that she argues at length that her life experience enter into her decisions as a judge in general.

As a result, the full comments of this speech, to me, indicate a judicial activist more so than a racist tendency and that is troubling to me for our legal standard bearer has scales and wears a blindfold and is to ignore life experience, prejudice and empathy when deciding on the rule of law.  It is the second statement that appears on the face of it to support her belief in judicial activism, but again let us look at this statement more critically and within its context.

The second statement was made at a conference where she was on a panel of judges.  After she makes the statement she also jokes that she knows that she is being recorded and that judges aren’t supposed to say that they make law.  She then continues to joke that she is neither advocating nor denying that judges make law and this is all said within the context of appellate judges and not other judges making law.  This second statement I find far more difficult to analyze not knowing Judge Sotomayor personally.  It’s hard for me to know whether she is stating what she believes to be true, i.e. a reality of our judicial system or whether or not she believes it is the role of the appellate judge is to make law.  It is therefore this line of questioning that I would like to see aggressively pursued during her confirmation hearings as it is imperative that our U.S. Supreme Court Justices do not believe they are placed on the highest court in the land to make law.  They are only there to interpret what the laws are and that the judicial process has been followed.  If Judge Sotomayor wishes to make law (which I do not know if she does or does not) the appropriate venue is to get herself elected to a legislature not continue on as a judge.

I wish in this day of the information age that Americans truly did seek information rather than sound bites.  My fear is that too many of us wish to take the easy way out and would rather not think critically upon these issues.  But critical thought given to these issues is tantamount to our success moving forward as a nation.  If we allow ourselves to be manipulated by sound bites, we will never see the truth.  The thing we must always remember is that the truth may not always be our own desired outcome.  For example, maybe our bias tells us we do not want Judge Sotomayor as our next U.S. Supreme Court Justice and yet maybe given critical thought to her statements, an extensive look at her record and an analysis of the hearings that take place for her nomination our minds would be changed.  Do we have the courage to critically come to a thoughtful conclusion, and if we do not possess this courage, what does that say and mean for our futures?  For now, I am reserving judgment.  Are you?

Written by KJ Kaufman

May 27, 2009 at 1:41 pm