On Sonia Sotomayor and the Process of Inclusion

BlogHer Original Post

I have thought long and hard about writing this post about Judge Sonia Sotomayor and the racial debate touched off by what I think is a misreading of her 2001 speech, "A Latina Judge's Voice."

By now,you know the speech I'm talking about -- the one including the quote, "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."  My fellow BlogHer CE Dana Loesch is among those who see the quote as either evidence of Sotomayor's incompetence or racism. As BlogHer CE Miguelina pointed out in commenting on Dana's post, that statement was immediately followed with:

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.

My reluctance comes not just because I knew the Judge in college and came to think highly of her. I wasn't one of her close friends, and we haven't talked since her graduation from Princeton University in 1976. She and I served together on the governance board of the Third World Center, a unit of Princeton University's student affairs office that provided resources for academic, cultural and social programming centered upon the needs and interests of students of color. (The TWC is now known as the Carl Fields Center for Equality and Intercultural Understanding, in honor of the University's first administrator of color.)Back then, I was impressed by her ability to calmly sort through contentious arguments and tedious bureaucratic details. Considering the sweep of her accomplishments in the 33 years since she finished second in her class at Princeton, I have every reason to believe that she will be a fine Associate Justice of the Supreme Court.


I have some concern about adding to the focus on Sotomayor's public comments and her participation in organizations in organizations concerned with racial justice, to the exclusion of her substantial judicial record. Tom Goldstein as the SCOTUSblog conducted a systematic analysis of 50 of Sotomayor's decisions related to race and found no evidencethat she placed racial empathy or identification above the law. Goldstein said his numbers "decisively disprove the claim that she decides cases with any sort of racial bias."Reflecting on Goldstein's analysis, Prof. Ann Althouse notes that in one of her dissents on a race-related case, she argued for the free-speech rights of a white employee who was fired for disseminating racist material. Althouse adds:

"Stop jumping ahead to the assumption that Sotomayor stretches the law to decide cases in favor of people who tug her heart strings and look at the record." 

But I do think that there is a contribution I can make to this discussion that hasn't been made, and that is to look at Sotomayor's speech, and her past involvement in racial advocacy groups such as the Puerto Rican Legal Defense Fund as part in the context of an intraracial process of leadership development. 

 Where others worry that Sotomayor's interests intimate racial chauvinism, I see the organizations in which she has participated, and others like it, as deliberative spaces where people of color who had the privilege of education and entree to the professions could contemplate the meaning of their positions, and the responsibilities that inhere in the privileges that we had been accorded.

I understand this as part of a tradition that goes back to the days of the American Negro Academy where a small cadre of African American intellectuals caucused about the conditions of African Americans in the Jim Crow era.

What We Did at the Third World Center 

When Sotomayor and I colabored at the Third World Center, much of the work concerned mundane matters common to all student organizations:constructing budgets, building a calendar of speakers, career workshops, films, cultural festivals and parties, making sure the building was maintained. And yes, there were also protests against university policies -- labor practices, investments in companies doing business in South Africa, and other issues. But, as a group, we also debated the efficacy of affirmative action, shared stories about our respective heritages, and contemplated the world we wanted to create.

 These conversations and activities were integral to my Princeton education. Chatting with Chinese-American students about how their families fled Mao's China enriched my Chinese politics class and helped me see the weaknesses in the arguments of some of the academic Maoists on campus. The Native American students told me about their responsibilities to their tribal governments, which included, in one case, writing arguments to help get decent water and electricity on their reservations. The Puerto Rican students taught me about Jose Marti. I tasted sushi and ground nut stew for the first time. I listened to my Haitian friends' struggle to figure out how to help their homeland suffering under the boot of the Duvalier dictatorship and other attendant ills. I brought my own worries about gang warfare in my home town, police brutality, and unequal access to quality education, jobs and health care.  

My recollection is that Sonia was optimistic about the opportunities that were opening up in corporate America and other sectors of power. Indeed, her ascent demonstrates that her faith was not misplaced. It's been amazing for me to watch many of my fellow TWC members ascend to leadership positions in government, industry, the arts, sciences and professions. Even our First Lady, Michelle Obama '85, is a former member of the TWC governance board. Our activism was a springboard into the wider world across campus and outside of Princeton.

The World in Which We Came of Age 

Truthfully, in the mid-1970s, many of us did not know what was possible. I have written before that those of us who are the children of the Civil Rights Movement have spent most of our lives testing the boundaries of America's promise of equality. DocJess has a letter from an attorney, Karen Porter, that reminds us of what some of the obstacles were:

"As a newly minted lawyer in 1974, I was hired as director of a Philadelphia corporate legal department; and my first priority was to hire two lawyers. When I told my superior that I had chosen, for the first position, a Latina lawyer who had been tops in her class at her American college and law school, his first question was: "But how is her English?" That Latina lawyer went on to become "the first" in so many roles in public service and private law practice that I lost count of all her achievements years ago. (She's also a friend of Judge Sotomayor's.) I told her this story recently, and she said I'd never told her before - and she cried. She also said that no one else would hire her then."

According to Porter, racism and sexism persists in the legal profession to this day:

"These were my experiences in only my first five years out of law school (1974-79) - I won't even attempt to cover the next 30 years in this letter. The list goes on and on. Even today, people ask why I haven't worked in a law firm or for local government. But that question is usually asked not by women or minorities because they know what we were and are up against."

Sotomayor's Berkeley Speech 

This is the context in which I see Sotomayor's 2001 speech. It was given at a Berkeley Law School symposium "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." It was republished in the Berkeley La Raza Law Journal, described as "one of four journals in the United States that focus on Latina/o conditions, communities, and identities in the U.S. and abroad—and the sociolegal conditions of other communities of color."In other words, she was speaking to fellow members of the legal community about what it means to be Latina and a judge. She noted her expectation that one purpose of the conference is to propose strategies for addressing the underrepresentation of Latino/a judges, particularly in the circuit and Federal appeals courts.

The "wise Latina" quotation comes 4/5ths of the way through the speech -- toward the end of a complex meditation on whether women or people of color in the judiciary function differently as judges.  Earlier in the speech, she contemplates what it is that makes her a Latina, sorting through historical,linguistic and cultural definitions of ethnicity in ways that remind me of academic discussions of Franz Boas or Du Bois' Conservation of Races.She acknowledges ethnic identity that can be deeply felt, but not easily defined.

Sotomayor questioned whether it is possible or desirable for those women and people of color who are on the bench to complete set aside their identities when they are on the bench. But what does she mean by this? Here, I think,is the core of her argument:

"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."

That said, she adds, as part of her conclusion:"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."

She ends with a call to the lawyers in the audience to reflect on how their identities affect their professional practice.The speech is not an attack on white men. It is a call to an audience of attorneys of color to think about the difference they want to make in the world. She's looking at the misjudgments by the Holmes' and Cardozos and saying, in effect: They had blind spots as a result of their experience. Let's hope that we can use our experience to see more clearly. (To that list, by the way, I would have added former Chief Justice Rehnquist, who wrote a memo defending Plessy v. Ferguson in the 1950s and helped deny black citizens' voting rights in the 1960s.)

That kind of conversation doesn't divide us. It helps us think about the basis on which we come together.

Cross-posted at Professor Kim's News Notes