Hark, the sound of a new Supreme Court nominee. The soundbite’s only part of an extended riff on what a disastrous pick he thinks she is, “the antithesis of a judge by her own admission”; see Mark Halperin for a transcript. The reply, naturally, is that her assertion about a “wise Latina woman” being the empathetic superior of a white man was yanked out of context. Was it? Quote:
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.
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. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. 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.
I’m looking forward to hearing whether she thinks any of the white men on the Court currently aren’t devoting the “time and effort” needed to neutralize their white-male-ness, and to whether she’s devoted any of her own to understanding the “experiences” of people who aren’t female and Latino. I’ll go out on a limb and guess that Stevens and Breyer are in the clear. No doubt The One realized before picking her that this quote would be a big deal, but the upside for him is that it’s bound to spark another round of infighting between moderate and conservative Republicans over how hard to push on it, with his nemesis Rush leading the bomb-throwing brigade. The Senate GOP will go easy on her lest they lose more Hispanic votes — even Robert Bork’s predicting softballs — and that’ll only infuriate Rush and the base more, leading to yet another GOP clusterfark. Ah well. Let’s get on with it. Exit question: Who said this? “I think that the only reason Clarence Thomas is on the Court is because he is black. I don’t believe he could have won had he been white. And the reason is, I think it was a cynical ploy by President Bush.” Answer here.