"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
— Judge Sonia Sotomayor, University of California, Berkeley School of Law, 2001
"I'm sure she would have restated it."
— President Obama, Washington, 2009
The "Latina woman" comment has thus far framed the opposition to the confirmation of Sonia Sotomayor. If that's all the opposition has, Sotomayor will be the 111th justice of the United States. Was it right then for the president to opine that the judge, if she had a do-over, would in fact "restate" the now famous remark?
The president was not taking issue with the proposition that a life experience that includes discrimination on the basis of race, gender, ethnicity or, for that matter, any other criterion that is beyond our capability to alter, supplies insight into the human condition that is valuable for the administration of justice. To the contrary, the president was simply reflecting the view that neither he nor the judge claim superior moral or legal insight by reason of race, gender or the like. The statement as Sotomayor made it in context reveals the regrettable reality of our society (discrimination still exists — a point sadly underscored by the outbreak of violence in a museum dedicated to mankind's hope of "never again"); the second implication, which both the president and the judge would deny — and hence, the president would have wished better stated — is that race, gender or ethnicity, in itself, ought to serve as a basis for decision.
Clarence Thomas has retold his compelling life story in My Grandfather's Son to law students across the country who have flocked to his lectures to learn of the wisdom learned around the table in the very segregated Pinpoint, Ga. The wrongfulness of racial hatred and exclusion informed Thomas' and Sotomayor's youthful formation. Thomas, like Sotomayor, excelled academically and professionally at least in partial refutation of the constant and pernicious insinuation that they got where they are only because of race or ethnicity.
RECOGNITION VERSUS PREFERENCEThat said, Sotomayor's nomination simply cannot avoid walking the tripwire dividing the candid recognition and remedy of racial, gender or ethnic discrimination as distinguished from unconstitutional preference. For a time, Obama's election supplied the nation with a much-welcomed hiatus in the search for passage around such intractable constitutional hazard. But we still have a distance to travel before America at large can accept, as the chief justice does easily from a life untroubled by disadvantage or irrational exclusion, his observation that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." How to rise above the meanness and meaninglessness of the morally and socially irrelevant still leads people of good will to reach different answers. At the hearings, Sotomayor will be pressed to reveal what does and does not amount to racial, gender or ethnic preference. She will find answer in her life experience.
A close look at her speeches reveals why the "Latina" remark is not racist, even as it may be incomplete. As the descendant of Puerto Rican immigrants, Sotomayor appreciates what it means to be among a class of persons owing allegiance to the United States, but with less than full rights.
Is it not prudent to enlist the judgment of at least a few men and women whose first-hand experience discloses that what is written in the law is not always fulfilled in application? Puerto Ricans were given U.S. citizenship, for example, but the citizenship granted was not complete; it was never intended to confer on Puerto Ricans "any rights that the American people [did] not want them to have," said Sen. Joseph Foraker, whose name adorns the qualified citizenship grant early in the 20th century.
Judge Jose Cabranes today sits with Sotomayor on the U.S. Court of Appeals for the 2d Circuit. Thirty years ago, in an essay that then-law student Sonia Sotomayor helped him prepare, Cabranes concluded that "the creation of a second-class citizenship for a community of persons that was given no expectation of equality under the American system had the effect of perpetuating the colonial status of Puerto Rico." Whether accomplished overtly, or more often with disingenuous subtlety, such denials of human right generally have insidious subordinating effect.
The rule of law demands that judicial resolution be unbiased by the personal characteristics of the parties, but it also depends upon the commitment to — even empathy for — giving meaning to equality in more than name alone.
Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University and author of Can a Catholic Support Him? Asking the Big Question about Barack Obama (Overlook Press/Penguin).
