PrintAugust 4, 2009
Sonia Sotomayor: From Biased and Proud to just Biased
(1) "I accept the proposition that... to judge is an exercise of power and because ... there is no objective stance but only a series of perspectives -- no neutrality, no escape from choice in judging, I further accept that our experiences as women and people of color affect our decisions." - Sonia Sotomayor, 2001
(2) "The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others." - Sonia Sotomayor, 2001
These comments come from the same speech as the now-infamous "wise Latina" comment. In fact, the entire speech is essentially a tirade in which Sonia Sotomayor argues in favor of the very bias that she is now claiming does not affect her judgment. Given that the 2001 speech is available for all to see, the remaining question is: Has the 2008 defeat left the Republicans in a state of permanent gutlessness, or will they get their (to use a wise Latina word) cojones back one day?
Sotomayor's speech is a legally styled argument, starting with the basic assumption contained in these quotes: personal biases (read: biases based on race, ethnicity, gender, social status, upbringing, etc.) are inescapable in judging. Thus we should seek ‘justice' not by ignoring our biases; Sotomayor urges her audience to embrace biases, and to seek to diversify the bench as much as possible to ensure, in essence, that different biases are equally represented. She argues that this process of appointing a string of biased judges will, in some strange and wacky way, achieve ‘fairness.' Call it justice via distributive biases.
Sonia Sotomayor reveals her one-sided reasoning and propensity to ignore facts in discussing the counterarguments to her theory. Judge Miriam Cedarbaum, a colleague of hers, raises the obvious counterargument (paraphrased): "Well, if people cannot ever get past their inherent biases to get to the right decisions, why is it that all the major civil rights decisions in favor of the disenfranchised, the poor, and racial minorities have all been decided by a court with nine (presumably well off) white guys on it?" Sotomayor's reply to this seemingly ship-sinking criticism:
"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. " [Emphasis added.]
A more intellectually dishonest response is unimaginable. First, the idea that a minority attorney involved in a civil rights case would sway a court of nine racist white guys to decide in favor of the plaintiff is inherently ridiculous -- if anything, he or she would do the opposite. More importantly, the examples Sonia brings up to counter this criticism (Thurgood Marshall, Constance Motley, and Brown v. Board) completely ignore about 90% of seminal civil rights decisions which were argued by white guys, in front of a court full of white guys, for the benefit of non-white guys (or girls).
Since she obviously knows better than this, when she states "I choose to emphasize..." in the quote above, what she is really saying is "I choose to completely ignore your counter-argument and press on with my own, since I have no answer for your argument."
In spite of failing to prove her point, Sotomayor's argument does prove something: that for her it is indeed impossible to get past personal biases. Her only mistake is that she goes on to assume that the same is true for everyone -- which it is not.
Her unshakeable commitment to the idea that white guys cannot ever realize the error of their ways, even after hundreds of years of judicial unfairness to minorities and at least 50 years of consistent scrapping/overruling of all those old mistaken laws, is uncanny.
Being politically educated, she likely knows that the very same white guy who dropped the bomb (Harry Truman) came up with the first affirmative action, that white guy JFK actually coined the term "affirmative action" in Executive Order 10925, and that (Southern) white guy LBJ expanded the idea of affirmative action into something many consider to be not only a "leveling of the playing field" but actually an ongoing process of "reverse racism."
Admirably unencumbered by obvious facts however, Sonia still presses on and "chooses to emphasize" facts which she thinks indicate that nobody can get past their biases. Sonia is nothing short of a fox applying for position of chicken-coop security guard. The chicken coop is actually the highest court in the land and the chickens, fat and ripe for slaughter, are constitutional questions whose rulings affect the way we interpret and apply the tenets of the document at the heart and soul of our country. As a Justice on the Supreme Court, Sotomayor will have a say in what we are as Americans. And she believes we are all biased.
Moreover, Sotomayor's "solution" for picking judges is rationally absurd and legally incoherent. By every account, there are at least 100 distinct "ethnicities." There are men and women, gays and straights, in each of these 100 or so ethnicities. Are we to believe that the only way to have a fair court system is to have one person of every "category" on the bench?
Why aren't Republicans in the Senate making her answer for all of this? Why are they harping on a single comment and allowing her to explain that comments away as ‘failed inspirational rhetoric'?
The 2008 election losses have (understandably) caused many in the Republican Party to question their political strategies. But if Republicans don't even have enough fight left to vigorously contest such a disastrous nomination as Sonia Sotomayor, then the only thing remaining for the rest of us to do is to move to China while we still can -- before the Government decides it wants to buy the airlines -- and air travel becomes prohibitively expensive and unsafe.
