Sotomayor’s Supporters May Spin Her Out Of A Job

posted at 7:44 pm on June 3, 2009 by Legal Insurrection
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The White House explanation for Sonia Sotomayor’s 2001 “wise Latina” statement was that Sotomayor used a “poor” choice of words and certainly would “restate” the language. This spin made no sense, as the full text of the 2001 speech made clear that Sotomayor did not misspeak or use uncertain language. Rather, the speech taken as a whole and in context was a reiteration of standard identity-politics in which Sotomayor specifically was responding to and rejecting identity-neutral approaches of Justice Sandra Day O’Connor and Judge Miriam Cedarbaum.

Sotomayor seemed to confirm this defense yesterday, although obliquely, through a statement released by Judiciary Committee Chair Patrick Leahy:

“Of course one’s life experience shapes who you are,” but she added, “Ultimately and completely, a judge has to follow the law no matter what their upbringing has been.”

Now it is revealed, by Greg Sargent, a supporter of Sotomayor no less, that Sotomayor used almost identical language in a 1994 speech:

“Justice O’Connor has often been cited as saying that “a wise old man and a wise old woman reach the same conclusion in dueling cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Prof. Martha Minnow is correct, there can never be a universal definition of ‘wise.’ Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.”

So the White House spin holds no water. There was no misspoken word. The language in question appears to be part of Sotomayor’s stump speech.

The spin by Sargent and others is that since Republicans did not object to the language when Sotomayor was nominated to the Court of Appeals in 1998, there must be nothing wrong with the language. Sargent’s spin makes less sense than the White House spin.

First, as noted in the The Economist, the 1998 speech did not contain the explicit comparison to the judgment of white males, as does the 2001 speech, so it is less objectionable on its face. Second, regardless of whether anyone noticed the language in 1998, Sotomayor now is being nominated to the Supreme Court and people have noticed. It’s like arguing against a speeding ticket because last time the cop let you go. Third, as Ben Smith points out, the existence of the 1994 speech “also makes it harder for the White House to cast it as a slip of the tongue.”

The White House thought it was doing Sotomayor a favor by spinning the “wise Latina” language as a poor choice of words. Pat Leahy thought he was doing Sotomayor a favor by spinning the language as nothing of significance. Greg Sargent thought he was doing Sotomayor a favor by spinning the language as old news.

Although I reject identity-politics in the judicial context, I am not yet convinced that Sotomayor would be a bad choice, given the alternatives. I’m still taking a wait and see approach. There may come a point at which I would support Sotomayor, but that point may be moot at this rate, as the spin from Sotomayor’s supporters is doing more damage to Sotomayor than the “wise Latina” language itself.

As with Nancy Pelosi’s shifting explanations of her knowledge of waterboarding, Sotomayor’s supporters’ spin is surrounding Sotomayor with herself, which is a losing strategy. Keep putting forth more ridiculous spin, and Sotomayor’s supporters may just end up spinning her out of a job.

Cross-posted with updates at Legal Insurrection Blog

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