I'm not saying it's not problematic -- I said above I think it was a poor choice of words. I'm just saying why I don't think, read in context, she was saying that Latinas are more "fit" for the bench than white males. (And again, she did not say that the wise Latina "would" make a better decision; she said that she "would hope" that the wise Latina would make a better decision.)

I think it does make sense when the judges in question (Holmes, Cardozo) are still held up as among the best we've ever had. (When I was in law school, Cardozo was always mentioned with something approaching a degree of reverence.) Plus, her point was that had an African-American, a woman or a Latino been on the bench at the time, a different perspective would likely have been present in the decision-making, so that what we now regard as a wrong decision might not have been made to begin with.

Even if we take it at "face value" and ignore context, the equation breaks down to this:

All things being otherwise equal, having a certain experience > not having that experience.

That sentence only becomes problematic when you unnecessarily focus on the race issue. Besides this, it's patently impossible, since no two people will ever be completely equal, so it is basically irrelevant - of course she thinks she is best fit to make judicial decisions.

Would you really be more comfortable if she said "I think others are better fit than I"?

It doesn't? Because we're completely immune to poor decision making? We're so infallible that, 100 years from now, nobody will facepalm over our ignorance, just like we do over decisions from 100 years ago, and they did over decisions 100 years before that, and . . .

Bad decisions are timeless, so to speak, and decisions that appear correct today could be seens as terrible in 50 or 100 years. As RC said, no one is infallible, especially when you add in the passage of time.

Cardozo is still always mentioned with something approaching a degree of reverence by most of my professors (and there were a few who still regard Holmes as the greatest thing since sliced bread).

No, simply that she was as fit as others without asserting that her ethnic heritage and culture experience made her more likely to be fit that others. The element that you regard as unnecessarily focusing on race is the essential issue.

I think it's a mistake to assume ethnicity/culture as a qualification in itself.

No, I think we're very likely to be judged harshly by history. But I think it's easy to assume that had we lived back in time, we'd, of course, bring our superior standards back in time with us. I think it's faulty to assume that. How many white people, Trent Lott apparently excepted, think that legal segregation is where it's at today? And yet, respectable people supported it. Being able to recognize unacceptable law today is no guarantee that you'd have been able to do it in the face of a society that regarded it as normal.

And sure, MysticCat's point that non-whites might have been less likely to agree about the legal decisions we now regard as wrong seems to be a good one. But it's also kind of silly: if we had only been progressive enough to have a more diverse judiciary in the past, we'd have also been a whole lot less likely to regard discriminatory behavior as normal generally, don't you think?

So you're denying the role of race/ethnicity in experience (and, by her extension whether we agree with it or not, wisdom)? That seems way sillier than what she actually said (which is that women and people of color have markedly different experiences than white males).

We'll never know, but even if we assume you're right (note: I doubt you're right), that has nothing to do with her point.

This is all about her use of the word "better." If she had just said, "different conclusion" or "more informed conclusion" or "more nuanced conclusion" I don't think it would've stirred the pot of white males so much. If it did, I'd have to tell them to shut up, because I think what she said is true. We are all products of our upbringing and culture, and a white man cannot possibly see things through the same eyes as a hispanic woman. I don't even think a man can see everything the same way as a woman! That is why it's important that we have diversity on the Supreme Court (i.e. why we need more than one woman to represent a female point of view or perspective when warranted).

I find a claim that one's particular race or ethnicity contributes experience or wisdom that can be assumed to be superior to that of another person, identified only by race, faulty. It's that claim that a wise woman or a wise Latina would more often than not make better decisions than a white guy, whose experiences we apparently are supposed to conclude are uniform and less rich, that I think is crap.

Okay.

I don't think that's what she meant by that quote. Taken in context, it's pretty clear to me that she's saying that a latina exposed to and experienced in cultural influences would probably have the insight to make judgment calls on people and situations familiar to her...moreso than someone that was unfamiliar with the culture or people of that culture.

I don't think there's anything wrong with thinking that way. I may have studied black history in one college class, but slavery and the civil rights movement, though moving to me, is still probably more emotional to black people in this country. Men may have cared one way or the other about a woman's right to vote (or choose abortion, to bring it into today), but it was women who took up that fight because it was a bigger deal to them. That's just two (or three) examples of law and policy that have been changed in our country due to discussion from different points of view gained from different experiences.

Some white males. ;)

I think pretty much everyone has said that she could have chosen her words better. I think she has said that.

This is where I think you're taking what she said beyond what she meant. She didn't say her experience was "superior" to anyone else's. She said it was different, and that the difference (not superiority) in experience was what she would hope would lead to a better decision. She gave a specific example of what she meant -- that someone who has experienced discrimination would, she would hope, approach cases involving what amounted to legalized discrimination differently, and that the inclusion on the Court of the voice of someone who had actually experienced discrimination would contribute to a better decision than might be reached absent the presence of such a voice in a case involving discrimination.

I hate to keep harping on this, but that's not what she said. She said she would hope that a wise Latina judge would reach a better decision. I think that is a key distinction. "I would hope" takes it from being a catagorical assertion that Latina or female judges will more often than not reach a better decision than white males and makes it more a statement that better decisions result from people of all backgrounds and experiences having a voice and from judges who recognize the ways that their own experiences will shape their decision-making.

Again, I think you're reading things into what she said that the speech in context simply will not support. She never said that white male judges' experiences were uniform or any less rich than the experiences of other judges. She said that they were different -- rich and varied in different ways, if you will. She also suggested that sometimes, white male judges failed to understand that their experiences were not universal, although she was clear in saying that this was certainly not always the case.

Even in context, I don't think she restricts her claim the way you do, Peppy.

I've already said that I have less problem with the idea of how diverse bodies are supposed to function over those made up of demographically similar people, but it doesn't carry down to the idea that this individual's decision making is likely to be yield better decision more often than not than another individual of a different race or gender.

It might or it might not. The racial or ethnic background of an individual in itself isn't likely to be predictive of the quality of decisions.

But you too are reading a lot more in than what was said.

I've already indicated that I don't think the speech is a big deal. I think the ideas expressed are pretty typical in political circles and pretty accepted. I think they're problematic and I'm less inclined to be as generous in my interpretation of what she really meant than you.

I don't think it matters very much.

I don't think I am. True, she didn't describe other experiences as rich and varied, but she also did not describe them as uniform or bland. I think the import of her speech as a whole is what I've said before -- everyone comes from a his or her own ethnic and experiential background and it is counter-productive to pretend that doesn't have an effect on decision-making.

I think what I might be doing is reading it like a lawyer -- that is interpreting what she said through a legal/jurisprudential lens rather than a political lens. Maybe that's leading to the way I (and, I think, other lawyers/law students) are understanding her comments.

I don't either, so why are we talking about it? :D

Seriously, I'm not nearly as concerned about what she said as i am about the totally a-contextual spin it has been getting in some circles. Again, maybe it's the lawyer in me, but trying to make major hay out of a sentence or two while ignoring the context of that sentence is what drives me bonkers.

Let's try this:

A. Women of color have markedly different life experiences than white males.
B. These experiences are thus unique.
C. In some instances, having a certain unique experience is a boon to an individual (in terms of decision making).
D. In few instances is a lack of a certain experience a 'boon' to an individual (it may be 'better' than not having it in the way that 0 is better than -5, but almost never is it a net benefit; limited to decision making).
E. Tying these together, all things being otherwise equal, having an experience is generally better than not having that experience.
F. Taking this to her logical conclusion, having an experience would hopefully lead to better judicial decisions than not having that experience.

What part of this do we disagree with? It seems very straightforward, almost to the point of being lame or tautological, mostly because it is pie-in-the-sky to the point of worthlessness (but certainly not because it is "racist", race-baiting, or even unnecessarily makes assumptions about race or gender).

[ETA at the top with bullet points that respond more directly]

- No individual is without some unique individual experience, even if that person is a white male.

- There may be no reason to assume that the legal decisions based on the unique experiences of women of color will likely be better more often than not that any individual white guy, whose own experiences are likely to be rich and varied.


I suppose I don't agree with the idea that a Latina's unique experience is as individually valuable judicially as Sotomayor seems to believe it is. I don't regard it as a hindrance, certainly, but the value of different experience, if there is one, exists in terms of what that experience contributes to a diverse body. (And I'm afraid that it's often overstated in terms of the contributions it makes to those. How is Clarence Thomas's blackness working out?)

Bringing a unique set of cultural experiences, which I think we all have no matter what race or ethnicity or culture, isn't an individual asset likely to yield better individual results over some hypothetical person with a different unique set of cultural experiences. You can really only compare this individual with that individual. You can't compare this individual with the richness of her cultural experience with a hypothetical white dude and conclude or reasonably hope that her conclusions are likely to be better because there is no hypothetical white dude who isn't bringing his own decision making assets or deficits as the individual case may be.

The comment is generating the out of context hype is it because it can't be turned around an appear neutral or positive. If it would clearly be "racist" if assert about a white guy, it's suspicious when asserted by someone else. ("I would hope that a white guy with the richness of his experience would more often than not make a better decision than a Latina without the same experience" seems wrong on the face of it.) It appears to be a claim that asserts the superiority of a person based on that person's race or ethnicity, and generally we're not down with that these days.

You mean like a body that's never had a Hispanic woman among its members? I think you're on the right track here - you are certainly allowed to feel she's overrating this (and again, the "I hope..." takes the edge off), but that doesn't change the fact that you're basically validating the comment here.

Yes you can compare.

See how easy that is? Why can't you? I think you certainly can, and to deny it seems very head-in-sand-ish about racial issues in the United States and the comparative differences between being white and being, well, not white.

The quotation has nothing at all to do with "superiority."

Besides this, the statement WOULD be ridiculous about a white guy, because it is literally impossible for the statement, in its context, to apply to a white guy because it is a strict comparison.

This is beside the fact that it apparently CAN be neutral - I think it's exactly neutral.

This is purposefully obtuse, is it not? The point is that the experiences of being Latina are unique from the overall set by nature of differences that do not exist for whites. Sure, everyone's a unique snowflake, but that's not the point.

There may not be. There may be. She hopes there is. That's the whole point.

Headache.

Is there an overall set of experiences? Are white experiences so uniform that the claim makes sense?

It doesn't to me.

I think that the experience of being Ted Kennedy varies so significantly from the experience of being Eminem, especially pre-success, that it's kind of goofy to lump them together by race and culture and assume that they've shared formative experiences.

Certainly, the shared experience of legal training is going to narrow the gap some, and maybe there's not as profound a variety in the experiences of white guys likely to become judges. But I still think a big sweeping comment about what ethnicity, race, or culture contribute is likely to be pretty faulty.

Did you all see this already?

http://www.slate.com/id/2219699/

It's about how the language we're discussing here is recycled from a previous speech about how the richness of a woman's experience would allow her to reach better decisions and defines better.

What seems oddest to me in the media's discussion is the idea that GOP would be actively trying to come up with a strategy for stalling her. It seems like Obama could have done much worst by GOP assumed standards.

I think KSigRC and KSigkid have done a good job of showing that it can.
Context matters yet again. One has to bear in mind that she was talking primarily about cases involving discrimination. Like I've said before, in that context, the corollary is: I would hope that someone who has experienced discrimination would make a better decision in a case involving discrimination than someone who has not experienced discrimination.

And note how the "I would hope" (with the implied "but it might not") takes care of your Clarence Thomas example, while she specifically refers to cases like Brown to show that she does not view personal experience of being discriminated against as necessary to making the better decision.

Note that the "definition" of "better" comes from a White House aide, not from J. Sotomayor.

WE AGREE! I really don't understand why some among the GOP are trying to stall this, because I agree -- it could have been much worse from their perspective.

In the 1994 speech she defines better herself.

ETA: Slate hyperlinks the paragraphs from both speeches.

My bad. I read the sentence wrong. Thanks.

It's not a really radical definition, and it seems in keeping with what Obama suggested he wanted.

The only thing the repeated speech contributes that it's harder to make the case that she would have expressed it differently, but I don't think that matters much anyway.

I think it's kind of funny, but not really surprising, that sometimes it's just being female that makes the difference and sometimes it's being Latina depending on who the audience is. Wouldn't it be more interesting to make the claim to an audience that wasn't expecting exactly what they would hear? To tell a group of diverse women that it's being Latina that makes the difference? To tell a Latina/Latino audience that being a woman is enough to offer hope of better decisions. If the claim is as valid as it's supposed to be, why not?

I'd still chalk that up to context. If I'm talking to a bunch of Boy Scouts, I'm going to focus on how being a Scout influences my perspective on things. If I'm talking to a bunch of people over 6 feet tall, I'm going to talk about how being tall influences my perspective on things.

Sort of an aside: there is research that suggests that in states where judges are elected, all other things being equal more voters tend to favor a female over a male.

Sure, but even though you were talking to Scouts you probably wouldn't address the Scouts' attitude toward gays. There's something about appropriateness, but there's something about playing it safe with the audience you've got too. It's completely normal and expected, but for some reason, it amuses me in this case.

I don't think that most people in the abstract have a bias against women judges, so your second point isn't really surprising. Most of the time, I think voters imagine that women will be outside of any Good Ol' Boys network, and I think that's what they are hoping for in judges.

(I do think that employees tend to be ridiculously hard on most females in superior employment positions, but that's neither here nor there in this case. I'm just noting that in reality/ direct experience, people frequently hold women to different standards than they do men. )

Yes. They are uniformly devoid of being non-white.

I have said this over a dozen times now - nobody is disputing this fact. YOU are assuming a "shared formative experience" - I am not. She is not, in the speech. You're arguing a strawman, and have been for like 5 pages now.

I'm not sure I'm following what you mean.

The research I've seen suggests a bias toward female judges. The reason may have some to do with not being in the GOB network, but (again, according to what I've seen) has more to do with a perception that females are more likely than males to combine application of the law with compassion. Hmmmm.

In the first part, that when giving addresses that you've been invited to give, you usually consider a topic your audience is likely to be receptive to.

In the second part, I haven't read the research so I have no idea, but what you've said wouldn't surprise me. I'm not sure who is anti-compassion when combined with application of the law; some of us are perhaps afraid of compassion used as a standard on its own or a substitute for application of the law.

Put simply, stereotypical mother-figure vs. stereotypical father-figure.

Despite any media-speak to the contrary, there's no realistic possibility that this would happen at the level of courts we're talking about (i.e. federal appellate and the Supreme Court).

Yeah, it seems pretty unlikely on a multi-justice court, even assuming you could get a justice interested in doing it appointed to the court in question, which also seems ridiculously unlikely.

I find it difficult in this instance to look at a comparative statement and not look at the what's implied about the side that comes up lacking.

Don't let it trouble you. Be content that you don't find it racist and call it a day. ETA: I don't mean stop criticizing whatever you want to, but sometimes you actually seem to be getting frustrated and I doubt it's worth it to be repeating 12 times something that I'm not getting, perhaps mainly because I don't want to.

Now some people are wondering why she has so little in assets.

Wake me up when she's confirmed.

What does it say about me that I actually like her more for this?

It's not really that I'm frustrated per se - certainly not with you specifically or as a person. It's more that I feel like you're arguing against points I'm not making, and that you've decided that the "null hypothesis" is something vastly different than I would ever consider - but it's all good, it's not really a debate to convince each other, and it seems to be in good spirits.

It's kind of a funny thread because we're all in agreement, I think, that of the choices Obama was likely to make, she's a pretty good one.

Does anyone else find it odd that so many are so hot and bothered about "diversity" on the bench, while in the same breath demand a person who went to either Harvard or Yale, has had essentially the same career since entering college as every other justice on the bench and is a Judge on one of two or three Circuits?

I don't know if this article prompted your question, but the NY Times talked about this a couple of days ago: http://www.nytimes.com/2009/06/09/us....html?_r=1&hpw .

I don't really have a problem with the Court being limited essentially to Ivy League grads; they're the people who most likely got the high level appellate court/Supreme Court clerkships, they're more likely to have argued before the Court, and they're more likely to get the circuit judge appointments. Do I think there's a time when we may see a Justice from somewhere like the University of Michigan Law or University of Texas Law? I think that will happen at some point. However, I have no problem with it being limited to people from the top 8-12 law schools (and I say that as someone who's at a decent school and has an ultimate dream goal to be a judge on an intermediate state appellate court).

As for the limitation on where the judges are drawn from, and being limited to a couple of circuits; I see that as more of an issue, but I see the reasons for it. If you've got a place like the 9th Circuit, which is known for throwing precedent out the window and staking itself to rather extreme legal claims, then I'm not sure they're the best people to put on the Court. There's something to say for being a creative legal mind, but there are boundaries to that. I'm a big fan of the 7th Circuit (Easterbrook, Wood, Posner, among others), and I'd like to see a judge from that court end up on SCOTUS at some point.

But, at the end of the day, the legal profession is one that can typecast you, so to speak, throughout your career. If you went to a certain school, you're more likely to get a good clerkship, get a job at a big firm or a high level government position (Office of Legal Counsel, for example), and more likely to end up as a rainmaker partner or a judge. There are exceptions of course, especially for well-connected regional schools (i.e. if you went to Suffolk Law in Boston, you have a leg up on many law students from outside of Boston), but I think, for the most part, that's just the way the profession is set up.

I read that article, and posted as an item on my Facebook page. I don't have a problem with it either, and I don't see it changing for a while and when it does, it will still be judges from schools like Michigan, UT, and Berkeley.

Did you read the NYT article about Scalia? He basically explained why he doesn't hire clerks who didn't go to a handful of law schools.

I saw the article about Scalia when it was linked on abovethelaw. It's not really a surprise; if you look at his clerks over the past 20 years, he does only limit to a handful of schools. Then again, that's the way most of the justices are in their picks. Only Clarence Thomas and Alito have gone outside the top 10-12, and even there it's exceptions to the rule.

Heck, even when you look at the people who were chosen from the top schools, they have ridiculous academic records (very top of class, law review experience, including being published, heavy duty moot court experience, and for some, a couple of years at top law firms). It gets limited even more when you look at the judges who are the top "feeders" to the SCOTUS justices.