Sonia Sotomayor’s “poor word choice”

When I switch on the TV, listen to the radio, or read news and opinions on the Internet recently, I often come across with a strange opinion on Judge Sotomayor’s two statements back in 1994 and 2001. I may not like her, but I can’t see a reasonable explanation about the negative reactions to the revelation of her two almost identical statements made in 1994 and 2001.

Here’s her 1994 statement:

Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases”. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.

Here’s her 2001 statement:

Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

The only difference of the two texts in bold is the addition of “Latina” and “than a white male who hasn’t lived that life” seven years later. First of all, Sandra Day O’Connor’s statement that “a wise old man and a wise old woman reach the same conclusion in dueling cases” is often analyzed by comparing it with the one made by Ruth Bader Ginsburg in deciding a case involving Savana Redding, a 13-year old girl who had been strip-searched at school by the authorities on suspicion of hiding some ibuprofen pills that may be bought over-the-counter. As a result of her male colleagues’ having not been troubled by the search, she said in an interview with USA Today that “They have never been a 13-year old girl. It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.

When analyzing a statement, taking into consideration the contextual meaning of every single word in that statement is critical. Sandra Day O’Connor’s words can’t be disagreed with easily. Pay attention to the word wise!  While it is really critical that judges be wise (who would disagree with that), common sense tells us that there can be judges who are not as wise as they are supposed to be, regardless of the court level they are appointed in. That’s why there are appellate and supreme courts, that’s why in these two levels there are more than 1-2 judges and that’s why there are three types of opinion – a majority one which is the decision of the court, a concurring one which agrees with the majority opinion but after having reached to that decision on a different basis of arguments, and a dissenting one which disagrees with the majority and concurring opinions. Although a judicial case is debatable – and that’s what makes it judicial – I really doubt that there can be two opposite but just decisions on it, regardless of how plausible they are.

Not being of a particular gender, race or ethnicity is what Justice Ginsburg and other people, including affirmative action advocates, often point out as a cause to the consequence of not quite understanding one who is of the other gender and/or of a different race or ethnicity. That opinion has its merits. However, pay attention to the word “old” too! The men and women that Sandra Day O’Connor talked about are not just wise but old, or experienced, as well. I think that “old” is the word that should be questioned in her popular statement because, while “wise” is not very hard to determine by reasonable people,  it is not the same case with “old” but that’s another matter.

I read the entire 2001 speech of Judge Sotomayor. It was mainly about race and gender of the state and federal judges, or how disproportionate to the population proportion they are. What the mainstream media and Republicans such as former Speaker of the House Newt Gingrich and radio talk-show host Rush Limbaugh have failed and keep failing to mention in their analysis of her statement above as cited are what she was talking about in University of California Berkeley School of Law (race and gender of the state and federal judges and its disproportionality to the population proportion) as well as parts of her speech before and immediately after that “poor word choice”:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment (which is a very good point, Judge Sotomayor, but I still can’t see what was so unequal in the test that the New Haven firefighters took).

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging (which shouldn’t happen though, and a good justice must ignore their gender and national origins and look into a particular case from both of its sides). Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise (the fact that people haven’t found that definition doesn’t mean that it can never be found). Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society (society was less wise back then, so as wise as Oliver Wendell Holmes and Justice Cardozo were at that time, they aren’t wise enough from nowadays’ perspective). Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group (I cannot agree more). Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage (so Judge Sotomayor accepts that she is probably not good enough to be a U.S. Supreme Court judge).

Together with that text, her statement that she is being criticized for, it looks different, doesn’t it? One thing is to interpret a sole statement and a perfectly different thing is to interpret it by taking into consideration the justifications for saying it. In her “poor word choice” she explains that different real life experience leads to different conclusions, but then again – nowhere does she say that a wise Latina woman with the richness of her experiences reaches better conclusions than a white male who hasn’t lived that life. She merely hopes that a wise Latina woman with the richness of her experiences would more often than not (or, in other words, oten but not necessarily always which is as politically correct as she can possibly say it) reach a better conclusion than a white male who hasn’t lived that life. Whether these inadequate reactions to her nomination are part of the whole process of pretending a debate is debatable, but I really don’t approve of them.

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