The commentary on Judge Sonia Sotomayor’s speech at Berkeley’s School of Law in 2001 and published a year later in Berkeley La Raza Law Journal has proliferated in recent days, and at this point the White House regrets those 32 words (“I would hope that a wise Latina woman …”) as much as anyone.
Of course, as many have pointed out, the identity-perspective statements are not something to shy away from, not, that is, when one speaks them in academic settings. They are, instead, customary sentiments. When Judge Sotomayor uttered them at Berkeley, I imagine that few noticed them except in terms of approval. Indeed, to me what stands out in her disquisition is how routine and unimaginative the presentation is, the defense of identity-based understanding mostly a series of standard expressions.
We have some unobjectionable, common-sense assertions that people’s experiences color their judgment (“Personal experiences affect the facts that judges choose to see”). Who would argue with that?
But then we have the extension of them to positions that off-campus Americans find altogether problematic, the “wise Latina woman” sentence and others, too.
For instance, Sotomayor cites Judge Miriam Cedarbaum’s contention that the idea that “judging should be gender or anything else based” is “dangerous,” then claims, “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” That seems to many people to verge on removing the blindfold from justice, or to adjusting the scales for different identities.
Another worrisome statement follows when Sotomayor raises questions of different perspectives and even different thought processes and judgment habits across groups:
“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.”
“Basic differences in logic and reasoning”? One wishes that she had spelled those out. There are important legal and epistemological arguments behind these assertions, to be sure, but when you get down to it, people are uncomfortable with the prospect that a judge will take identity into account when deciding a case, or that one judge will reason one way and another judge another way about a case, not because of different moral or ideological positions but through some deep cognitive differences. They expect a fair, consistent standard — not a white male perspective and not a Latina perspective.
Jurists such as Cedarbaum recognize that a person’s experiences always come into play, but they need to neutralize them as much as possible. Personal experiences are unpredictable and arbitrary, which means that they can work against justice as well as for it.
Sotomayor recognizes the potential, but doesn’t see the problem:
“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.”
A step is missing here. Acceptance is fine, but we need some critical distance from gender and heritage as well. We can’t stop with “hope” and the “unfamiliar” and “I simply do not know.” Precisely because of the limits of identity perspectives, we shouldn’t just accept them. We should accept them and transcend them.
