Monday, June 1, 2009

Off-topic: Sotomayor's 'white male' comment

"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." Sonia Sotomayor, Berkeley California, October 26, 2001.

The White House and others say that Supreme Court nominee Sotomayor's remark has been "taken out of context." Read the speech yourself here. I don't know if that assessment is especially helpful, or accurate.

I submit that important nuance is missing from knee jerk appraisals that "she's a bigot" and "no she's not." I don't think she's a bigot, but I think her worldview on gender and race needs to be understood in order to assess her.

Let us start with the statement itself. Let us construe and interpret Judge Sotomayor's remarks in a manner she would find familiar -- the way a judge construes and interprets the words of a contract or statute. The common law has developed, over the course of hundreds of years, a sophisticated way of reasonably construing the written words people choose, as reflected in various canons of construction, and even though a speech is not a contract or a statute, those principles are helpful here. For example, it is a canon of construction settled beyond dispute that all the words in a document must be read together and given effect, if reasonably possible. Words that are clear and unambiguous on their face -- and by any reasonable measure, the Sotomayor statement at issue is clear and unambiguous -- should not be rewritten under the guise of interpreting them. People are presumed to choose their words carefully, and clear and unambiguous words -- even in isolation -- should not be discarded as mere surplusage.

Judge Sotomayor's "white male" statement seems to be an isolated one. The gist of her speech suggested that a judge's gender and race informs his or her perspectives and influences his or her judgments. Among other things Sotomayor said: "However, to understand [the values and needs of people from a different group] 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." She noted that even when white males have reached decisions affirming equality, they typically have been helped in arriving at those decisions by persons of disadvantaged groups.

Lani Guinier, a professor at Harvard Law School, defended Sotomayor's remarks, writing in The New York Times that "cognitive psychology and history predict that every justice acts from a perspective." With all due respect, that doesn't really address the remark at issue. That addresses Sotomayor's larger point, the gist of her speech.

I noted above that Sotomayor's statement was an isolated one, but that doesn't mean it should be discarded as mere surplusage. In fact, the statement can be reasonably construed with, and not do violence to, the larger purpose of her speech. But it should not be assumed that Judge Sotomayor didn't mean to say precisely what she said, or didn't intend her words to have precisely the effect they are now having.

The White House wants us to chalk up the words as a mistake -- akin to a slip of the tongue or a classic scrivener's error -- both the President and the White House spokesman have said that Sotomayor would reword the statement if she could. We likely will hear Judge Sotomayor clarify that statement to say pretty much what Prof. Guinier said. Declaring that the statement wasn't worded correctly is, of course, different than saying it was taken out of context. If some people have concluded that the statement expresses bigotry against white males, perhaps that conclusion follows precisely because the statement wasn't worded correctly, just as the White House has suggested.

The obvious point needs to be acknowledged and not swept under the rug: every clear and unambiguous bigoted comment that has forced a white celebrity to be fired or to go running to apologize to Jesse Jackson is claimed by some to have been "taken out of context"-- from Imus to Jimmy "the Greek" to Michael Richards -- the list goes on and on. In contrast to Judge Sotomayor's prepared comment, each of those remarks were extemporaneous statements uttered by persons no one considers serious thinkers; certainly none of them are in the business of choosing their words carefully as Judge Sotomayor is.

But let us be fair. It would be a stretch to conclude that Judge Sotomayor's comment is indicative of a worldview that Latina women are generally inherently superior to white men. She likely meant Latina women make superior judges when it comes to issues important to disadvantaged groups. Her statement likely manifests a perception that white males have not always answered the needs of groups she perceives as disadvantaged.

It is on that worldview that Sotomayor needs to be assessed. That is why it is unhelpful and inaccurate to compare her to David Duke on the one hand or to insist her "white male" comment has been "taken out of context" and leave it at that.

The judge does not deal with whether the special needs of men (e.g., in family law court, or when falsely accused of rape) have been answered by male judges, or otherwise. Her focus is on the needs of other groups. Perhaps she feels -- as do a great many feminists -- that men's needs are more than adequately protected solely because men represent most of the persons in power. That would be something readers of this blog would like to know.

More interesting for our purposes is this statement from the speech, which suggests that some male lawyers may need to undergo a process of self-assessment to acquire greater sensitivity to the needs of the disadvantaged: "I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach."

(Emphasis added.)