Even More Context Needed

Cross posted at Attackerman


Ta Nehisi Coates has a post up about Supreme Court justice nominee Sonia Sotomayor and one of the supposed controversial statements that she made in a speech she gave in 2001 to some students at the University of Californa Berkley School of Law. Here is an excerpt:

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.

I think we can immediately dispense with the crazies who think this statement should disqualify Sotomayor for the Supreme Court. It's worth noting that William Rehnquist once endorsed segregation, and yet rose to be Chief Justice of the court.

That said, I think Sotomayor's statement is quite wrong. I understand the basis of it, laid out pretty well by Kerry Howley over at Hit & Run. The idea is that Latinos have a dual experience that whites don't have and that, all things being equal, they'll be able to pull from that experience and see things that whites don't. The problem with this reasoning is it implicitly accepts the logic (made for years by white racists) that there is something essential and unifying running through all white people, everywhere. But White--as we know it--is a word so big that, as a descriptor of experience, it almost doesn't exist.

Indeed, it's claims are preposterous. It seeks to lump the miner in Eastern Kentucky, the Upper West Side Jew, the yuppie in Seattle, the Irish Catholic in South Boston, the hipster in Brooklyn, the Cuban-American in Florida, or even the Mexican-American in California all together, and erase the richness of their experience, by marking the bag "White." This is a lie--and another example of how a frame invented (and for decades endorsed) by whites is, at the end of the day, bad for whites. White racism, in this country, was invented to erase the humanity and individuality of blacks. But for it to work it must, necessarily, erase the humanity of whites, too.

Sotomayor, unwittingly, buys into that logic by conjuring the strawman of "a white male." But, in the context that she's discussing, no such person exists. What is true of the straight Polish-American in Chicago, may not be true for the white gay dude working in D.C. I'm not even convinced that what is true for the white dude in West Texas, is true for the white dude in Austin--or that what's true of the white dude in Austin, is true of other white dudes in Austin. There's just too much variation among people to make such a broad statement about millions of people.

After having reread the speech I have to say that this is one of the rare times that I totally disagree with Coates. My disagreement really isn't on the substance of his argument per se, but on the premiss of the argument itself. Here is my response as published in a comment on his blog:

I actually think even more context is needed and a focus on the words Judge Sotomayor actually said.

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. 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.

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. 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. 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.

What I believe Sotomayor to be saying here isn't about painting with a broad brush that encompasses "all white men". I believe she is making a point about white men who do not have a lot of experience dealing with women and minorities on a personal level. To me the key to understanding what she is saying is when she points out that there is no universal standard for what "wise" is or isn't. Many people consider a person who is wise to denote academic achievments alone. I believe that in the totality of her speech she is making the case that wisdom also comes from personal experience. She made the case pretty clearly earlier in the speech that there have been studies that show that women and minorities as judges rule differently than their white male counterparts on the whole. And even in what I quoted she points out that all male courts did not vote against sexual or racial discrimination until 1972 yet they were seen as "wise men".

Now for me its hard to see how anyone can say that this is an absolutist statement especially when she makes allowances that it isn't. Let me quote it again to reiterate.

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. Many are so capable.

What she is saying is that on the other hand there are also many "wise white men" who do NOT have the capacity for understanding the values and needs of minorities and women for a variety of reasons that she lays out, that a woman who is also minority and has had a wealth of experience with other minorities and women wouldn't be hindered by when judging cases.

And if the problem ISN'T that she is pigeon holing every white man then are we REALLY going to argue against decades of precedent that shows that white men have on the Supreme Court have in fact affirmed that discrimination based on race or sex or sexuality was in fact perfectly fine under the constitution?