Monday, June 08, 2009

A Wise Latina

Despite my own warning to ignore such nonsense, I've been thinking a bit about Judge Sotomayor's "wise Latina" remark. Here it is (with emphasis added by me) in full context:
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.

Now two observations:

1) There is no claim whatsoever to inherent racial or sexual superiority of Latinas/Latinos over Anglos or of women over men. Judge Sotomayor does not say that race or sex confers any superior abilities. The notion that this is somehow a racist statement is just ridiculous.

2) There is also no claim of inevitability. Speaking not of all decisions but in particular about cases involving claims of discrimination, Judge Sotomayor says only that she "hopes" that the experience of being part of a minority group will lead a "wise" Latina (note not all Latinas, but just wise ones) to make better decisions about such cases than a member of the dominant group, even as she acknowledges that it is possible for a white male judge, with sufficient effort, to appreciate the impact of discrimination on the out groups.

These points, in my view, fully rebut the hyperbolic claims of the conservatives who have seized on this language as somehow disqualifying. However, I'd like to raise a different point that is of more academic interest. To the extent we can generalize, Judge Sotomayor seems to be saying that the experience of having been oppressed leads people to be more sensitive to the oppression of others. It's not entirely clear whether she means to say that a member of any out group will therefore be sensitive to the oppression of members of every out group, but I think that is a fair inference, and even if that's not implied by Judge Sotomayor, it's a commonly held view.

A version of the view dates back to the great Greek tragedians. The chorus in Agamemnon says "man must suffer to be wise," and the chorus in Antigone tells Creon that suffering is the schoolteacher of man. Now, Aeschylus and Sophocles weren't exactly saying that suffering breeds sympathy for the suffering of others, but something like that view is implicit, and the point gets picked up especially in Christian ethics that extol the poor and the meek as virtuous.

Still, I have my doubts. The experience of oppression can as well lead either to a kind of survivalism in which the oppressed, of real or perceived necessity, look out only for their own good. Or a group that is relatively oppressed may resent other oppressed groups as competitors for resources and status. Many historians attribute the weakness of the American labor movement to the fact that poor white workers were unwilling to join a multi-racial coalition with African Americans. The exploitation of the poor whites left them, not sympathetic to African Americans who were in an even worse position, but wanting to make clear their own higher social status. More recently, I think it is not entirely accidental that support for same-sex marriage and gay rights more broadly is less widespread among minority groups than among whites.

So the experience of being on the outs can lead one to be more sympathetic to other out groups, but the effect is hardly inevitable.

Posted by Mike Dorf


egarber said...

So the experience of being on the outs can lead one to be more sympathetic to other out groups, but the effect is hardly inevitable.

The experience in Germany between the world wars would seem to be a related case study. The battle over WWI reparations and the resulting hyper-inflation were clearly humiliating for Germans generally. But the reaction to that forced submission was internal backlash against minorities within the German population.

Neil H. Buchanan said...

Similarly, the central thesis of Ignatiev's How the Irish Became White is that Irish immigrants raised their social status in the U.S. when they stopped living and socializing with blacks and instead emphasized their differences (and supposed superiority). Or, as Elvis Costello put it: "Even a scapegoat needs someone to hate."

Daniel said...

While I certainly agree that the statement is to a large degree taken out of context and possibly wildly misconstrued, I still find it troubling that she thinks life experience (life experience not being education in law) is relevant to her position- especially as it relates to her racial and gender status.

I would be far more comfortable had she said a Latina woman with education in the law equal to that of a white male would be just as likely to make the right decision.

This isn't to say she isn't clearly well-educated. She is, and she shows it. But it leads me to find some humor in the National Review caricature of her as Buddha on their cover (for those who haven't seen it yet you can doubtless Google it or find the Newsy video which goes into some more depth about the perspectives behind it).

heathu said...

Regarding Prof. Dorf's observation "More recently, I think it is not entirely accidental that support for same-sex marriage and gay rights more broadly is less widespread among minority groups than among whites:" while that may be in part due to the phenomena of some minority groups wanting to "make clear their own higher social status," I can't help but think the explanation for softer support for gay marriage in minority communities may be caused, at least in part, by the influences of their churches. Compared to the country as a whole, Latinos are disproportionately Catholic and Blacks, Southern Baptists. Both churches have taken strong stands against gay marriage.

(And as an unrelated technical question, how does one generate italics in this comment section? I only seem able to get plain, courier text.)

egarber said...


For italics, add "" at the beginning of your text, and "" at the end -- without the quotes.

egarber said...

Crud. Not sure how to show it.:)

Michael C. Dorf said...

In reply to heathu, I think you're certainly right that if one controls for religiosity, some of the differences we see between whites, on the one hand, and Latinos/Latinas and African Americans with respect to same-sex marriage may go away. Still more of the difference might go away if we controlled for education and overall socio-economic status. Whether that would leave any difference is a question for which I don't have any data. However, anecdotally, I do know that some prominent African Americans (including very well-educated people who are not apparently governed by religious fervor in other matters) have taken offense at the comparison between the civil rights movement and the LGBT equality movement. That phenomenon--and the more general phenomenon of historically persecuted groups competing unproductively over who had it worse (e.g., slavery versus the Holocaust)--is a version of what I had in mind. And to repeat, I'm not making a claim that Judge Sotomayor is wrong, only that it doesn't always work that way.

Glen Salo said...

In its passionate search
for absolutes
mankind overlooked the evidence.

Unknown said...

Although I am responding more to Professor Dorf's FindLaw column, "What is Sonia Sotomayor's Judicial Philosophy?", I thought it would be most useful to post my comment here.

I am curious whether Professor Dorf would elaborate on why he believes that, for legal formalists, "empathy is irrelevant to judging." In his FindLaw column, Dorf suggests that empathy is irrelevant to formalists because formalists rely exclusively on legal documents, which consist of words. But words of course require interpretation, which might be guided by empathy. For example, by consulting the events surrounding the adoption of the 14th Amendment, a formalist judge might use empathy to reach the conclusion that the purpose of the Equal Protection Clause is to prevent majority groups from subordinating minorities and that the Equal Protection Clause thus demands some sort of antisubordination principle. Moreover, even if the formalist did not use empathy to derive the relevant legal principle, it isn't clear to me why the formalist judge wouldn't find empathy to be a useful tool in applying that principle. For example, the formalist judge might use empathy to determine the right context in which race-conscious laws create the type of racial subordination that led to the ratification of the Equal Protection Clause.

In sum, I just don't think it's accurate to characterize formalism as treating empathy as irrelevant to legal decisionmaking. In fact, we can see in Scalia's highly emotional dissents that he is one of the most empathetic Justices on the Court (though perhaps not empathetic in the way that Dorf or I would prefer). Whether a good thing or not, it seems to me that both realists and formalists can appeal to empathy while remaining faithful to their judicial ideologies.

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BillOGoods said...

Doesn't anyone find this issue dripping with the irony that we universally instruct a jury in the performance of its duties to set aside "sympathy" and "prejudice regarding race, sex, religion, national origin, age" and so on and not to allow these emotions to "influence your decision," but, here, we have a candidate for the highest appellate court in the land who has all but stated it's okay for her to, not only do so, but aspire to do so?

And she's not supposed to be deciding the facts---just the law. So, since when is emphathy properly on the checklist for appellate decision making?

An additional, but equal irony, is the parsing of her statement by Professor Dorf when, I can anticipate with certitude, that (and not necessarily by him) a conservative, "natural law," strict constructionist, or another similarly inclined candidate would not have had that benefit. By now, he or she would have been forced to withdraw in some measure of disgrace.

So, I'm not so sure the suggestions that Sotomayor's statements are at all "out of context" when understood as disqualifying if said by a white candidate.

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