Sotomayor

For all the talk about Sotomayor's "wise Latina" speech, Heather Mac Donald raises a point that few have mentioned: the speech is very poorly written. Back in 2005, I agreed with the concern that Harriet Miers' writing was simply inept, and Sotomayor's writing isn't that great either. To be sure, she's replacing someone who tended to annoy other Justices with all of his excess verbiage, so perhaps it's a wash in that regard.

What about the "wise Latina" line, though? Here's the full paragraph:

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.

On one reading, Sotomayor is simply making the commonplace point that the diverse experiences of judges will inevitably affect how they view certain types of cases. Although the "more often than not" is eye-opening, the surrounding paragraphs seem to limit the discussion to "race and sex discrimination," and it makes sense that someone from a minority background would see her own perspective as being relevant and helpful in such cases.

That said, it would be more consistent if she had said that a "wise Latina woman" might reach a "different" -- not "better" -- conclusion in such cases. After all, Sotomayor herself said that she agreed with a law professor's view that "there is no objective stance but only a series of perspectives -- no neutrality." On that view, a "wise Latina woman" can't make an objectively better decision in the first place.

In any event, I was rather more intrigued by a couple of other comments. First, earlier in the speech, she says, "Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address."

In the 1994 speech from which this is all copied, Sotomayor mentioned only gender -- and specifically cited Carol Gilligan, famous for difference theory. She followed up later with a sentence that was deleted from the later rendition of the speech, explaining that a "better" decision would be "a more compassionate, and caring conclusion." [The superfluous comma is hers.] So in that version of the speech, she is leading up to the common, although not uncontroversial, claim that women are more "compassionate and caring" than men. But here she seems to be suggesting that not just women, but also "minority judges" might have basic differences in logic and reasoning. Hmmm.

Second, note that the "wise Latina" paragraph begins with these words: "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."
Now this may be just yet another example of sloppy writing (again, the 1994 speech mentioned only gender here), but she's suggesting that "national origins" could involve "inherent physiological . . . differences" that are relevant to judging, and that she gives more weight to this possibility than does her colleague.

Now as to gender, the inherent physiological ability to become pregnant could influence a judge's perspective in, say, cases under the Pregnancy Discrimination Act. But national origin? I'd be curious to know what such "inherent physiological" traits she has in mind there.