Through the Sonia Sotomayor Looking Glass

“Racist,” “reverse-racist,” “bigot” and “activist” are just a few of the fighting words being bantered around endlessly by pundits and politicians over President Obama’s Hispanic Supreme Court nominee Sonia Sotomayor. These harsh words, through the fire of the Sotomayor debate, are reshaping public discourse over the role cultural identity and life experiences should have in the judicial process. Sotomayor might just be the much needed bellwether for this complicated and difficult discussion.

As potentially the first Hispanic and third female to be appointed to the high court, Sotomayor has been facing intense criticism by conservative opponents since the announcement of her nomination. Many argue that her judicial philosophy is unduly influenced by racial and ethnic characterizations. Her most outspoken adversaries have been former House Speaker Newt Gingrich and controversial radio host Rush Limbaugh. Both conservatives labeled Sotomayor “racist,” with Gingrich even advising that Sotomayor withdraw from consideration and Limbaugh comparing her to David Duke, the former head of the Ku Klux Klan. The fodder for these attacks has been Sotomayor’s now infamous 2001 UC Berkeley speech where she made remarks about the personal experiences of judges by stating, “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.” Sotomayor repeated this statement in almost precisely the same manner in speeches she delivered at the Princeton Club in 2002 and at Seton Hall law school in 2003, according to copies of those speeches recently delivered to the Senate.

Sensing the public backlash against the Sotomayor name calling, many members of the Republican establishment have voiced their opposition to Gingrich’s and Limbaugh’s divisive commentary. Senator Orrin Hatch (R-Utah) rejected Gingrich’s and Limbaugh’s assertions that Sotomayor is racist. “I don’t agree with that,” he said on CNN. Senator John Cornyn (R-Texas) also said, “I think it’s terrible” in condemning Republicans who have called Sotomayor a racist. Gingrich, under the weight of GOP political pressure, has since backed down from his characterization of Sotomayor by admitting that his words had been “perhaps too strong and direct.” However, Gingrich also noted that Sotomayor’s remark about wise Latinas still “reveal[s] a betrayal of fundamental principle.” Limbaugh has indicated that he could potentially support the Sotomayor nomination but still refuses to retract his cutting critique of her on the issue of race.

The laser focus on the “wise Latina” line of Sotomayor’s 2001 Berkeley speech, taken out of its full context, has unfortunately obfuscated the progressive message delivered by her in that address about the inevitable intersection of gender, heritage and law. Nonetheless, these select words have provided a subject for endless hours of dissection by both liberals and conservatives. For the past week, the fervent discussion of the “wise Latina” has been playing out ad nauseum in the media and within Washington’s hallowed political hallways. As opponents attempt to brand Sotomayor a judicial activist, searching for the meaning behind her 2001 remarks has become the mission of inquisitive senators and will most certainly be the primary subject for scrutiny during her confirmation hearings. The fortunate consequence of this mincing of words is that a meaningful dialogue has begun about the influence of cultural perspective on judges’ analytical processes and its potentially positive impact on law and society.

The maelstrom over the “wise Latina” remark has also led Obama and now Sotomayor to take the disappointing, yet politically expedient and predicable steps of almost complete public retraction. Obama stated, unconvincingly, that Sotomayor misspoke in her comment by saying, “I am sure she would have restated it.” Would she have? Sotomayor then cleverly attempted to refute GOP bias claims by stating, during her closed door sessions on Capitol Hill this week with key senators, that she would follow the law as a judge without letting her life experiences inappropriately influence her decisions. Senator Patrick Leahy, (D-Vt.), the Judiciary Committee Chairman, quoted Sotomayor as saying, “Ultimately and completely, a judge has to follow the law no matter what their upbringing has been.” Sotomayor, when asked about the meaning of her 2001 comments also told Leahy, “Of course one’s life experience shapes who you are but…as a judge, you follow the law.”

Judge Sotomayor is a Puerto Rican woman who was raised by a single mother in the public housing projects of the South Bronx. She rose from her economically and socially disadvantaged background to achieve glittering academic success at Princeton University and Yale Law School. Sotomayor then went on to become a highly accomplished federal prosecutor, private practitioner and judge on the federal bench. Interestingly though, Sotomayor’s recent statements on Capitol Hill concerning the influence of cultural identity and life experiences on judging seem to be a marked departure from the philosophical tenets she espoused in her now controversial 2001 speech. In that talk, Sotomayor, when discussing the impact of gender, race and life experiences on judicial analysis quoted Professor Martha Minnow of Harvard Law School. Minnow stated, ‘there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging.’ Sotomayor went on to lend support to Professor Minnow’s theory by saying,

“I further accept that our experiences as women and people of color affect our decisions. 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. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.”

Sotomayor then begins the paragraph in her speech which contained the “wise Latina” words with this provocative sentence: “Whether born from experience or inherent physiological or cultural differences…our gender and national origins may and will make a difference in our judging.”

While many would not disagree with Sotomayor’s most recent statement from her Capitol Hill meetings that it is the role and ultimate responsibility of a judge to ‘follow the law,’ the question over what factors influence how a judge reads and interprets the law that they follow still looms. Do life experiences and cultural identity, including race, religion, gender and political persuasion impact a jurist’s method of interpretation? If so, then can and should those influences be used by judges as an instrument to effectuate positive change in a pluralistic society through the law? Also, in an increasingly diverse nation, shouldn’t the members of our judiciary and their respective judicial philosophies reflect, at least to some extent, the varied experiences and world views of the citizenry? Sotomayor’s 2001 speech seems to lend support to these forward thinking ideas about the composition of our judiciary and the role cultural identity and perspective can play in a judge’s intellectual approach. It is disheartening though to now see Sotomayor bending to the political game by distancing herself from the advanced thinking she demonstrated in that speech.

The reliance on past legal precedent to render opinions on present cases simply provides an analytical framework for a judge. A judge’s reading of facts and their assessment of the interplay of those facts with the law results from cultural filtering. The law and the facts are first received through a judge’s cultural, intellectual and emotional lens before analysis is undertaken and decisions are rendered. That lens evolves over the course of one’s human development through the confluence of personal identity with life experiences. Family structure, home and community environment, education, religion, ethnic practices and socioeconomic circumstances, among multiple other psychosocial factors determines the shape of the lens and how it interprets the surrounding world that it is constantly filtering and processing. Even adherents of strict constitutional interpretation must recognize that cumulative life experiences and cultural identity influence judicial legal analysis.

Despite the divergent opinions over Sotomayor, Democrats and Republicans are ironically both sticking to the principle that the bench should not be used to promote a judge’s cultural or political perspective. Perhaps Democrats feel that it is good p.r. to highlight their feigned adherence to the idea of total impartiality in light of the concerns over Sotomayor’s judicial philosophy. Republicans, on the other hand, know deep in their strict interpretation hearts that the illusion of complete judicial restraint is just that. It is simply the party mantra that they, for some reason, feel the need to continue promoting. Really though, who is kidding who here? Both sides of the aisle are simply sidestepping the painful truth that cultural identity and life experiences do and will continue to impact judicial decision making no matter how impartial a judge may ever aspire or claim to be. At least Sotomayor was able to make the refreshing admission in her 2001 speech that she is not immune to the impact of her biases and that she is cognizant of those biases in her judging. She stated,

“I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”

Even though Obama and Sotomayor herself have been attempting to reassure critics that she is not an activist judge, many Republicans still ardently believe that Sotomayor will use her position on the Supreme Court to make government policy based on personal politics and preferences. In addition to the “wise Latina” remark, the opposition has zoomed in on a 2005 comment Sotomayor made during a panel discussion at Duke University’s law school. During the discussion, Sotomayor said the Court of Appeals is “where policy is made.” Although she qualified the statement, conservatives have viewed this as evidence that she would not strictly interpret the U.S. Constitution as they prefer but instead would pursue a policy agenda from the bench. Mitt Romney, a potential 2012 Republican presidential candidate and a Sotomayor opponent stated, “What the American public deserves is a judge who will put the law above her own personal political philosophy.” Also, Senator Lindsey Graham, (R-S.C.), who met with Sotomayor for more than thirty minutes during her recent trip to Capitol Hill, still remained concerned about her “wise Latina” remark and repeated his call for Sotomayor to apologize publicly for it.

The inherent hypocrisy in Sotomayor’s opponents’ arguments is that a judge who espouses a strict interpretation philosophy is conducting legal analysis without drawing from their life experiences or being influenced by any form of political or cultural cues. Despite this claim, many would argue that although Supreme Court Justice Antonin Scalia is one of the most vocal advocates of strict interpretation and judicial restraint in modern day American jurisprudence, his opinions tend to consistently reflect the life experiences and personal identity of an individual with a politically and socially conservative world view.

The Sotomayor nomination process provides a unique and historical opportunity for both sides of the debate to finally stop perpetuating the myth that constitutional analysis and the judicial process occurs in a vacuum that is hermetically sealed from the vagaries of cultural and political ideology. The politic is inevitably personal. It always has been and will continue to be even if Sotomayor is not appointed. As she once bravely conceded in her 2001 speech, identity, culture and life experiences invariably seep into judging and when applied properly to the interpretation of law, can lead to positive and transformative societal change. Hopefully, Sotomayor will have the courage and ability to openly share this modern judicial philosophy during the confirmation hearing process without facing extreme political retaliation or consequence. If Sotomayor succeeds in becoming the next Justice, her new position will signal an evolution of the Supreme Court toward an institution that is ultimately more reflective of the panoply of humanity for which it renders its powerful judgments.

Matt Semino is a New York attorney and legal commentator. He is a graduate of Columbia Law School, Cornell University and is a Fulbright Scholar.

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Contact Matt Semino at Matt@MattSemino.com