Jim Manzi perfectly captures the intense problems with Sonia Sotomayor’s identity politics approach to judging.
Many bloggers have made the argument that Judge Sonia Sotomayor’s famous “wise Latina” comment has been taken out of context. If you read the whole speech, they say, her statement is far more innocuous in context. As a result of these urgings, I read it. I’m not so sure it looks better in context.
That said, Sotomayor makes the indisputable point that decisions made by judges are at least partially impacted by their biological characteristics and life experiences. Human judgment clearly plays a role in such decisions; hence the need for human judges, as opposed to “law interpreting algorithms” in the first place. A key point, of course, is that in the passage under consideration, she goes beyond this and asserts not just that her decisions would therefore be different than those made by a white male but “wiser.” What she doesn’t address is that if we take a relativist approach to making judgments, how can one judgment said to be wiser than another? What is the objective standard of wisdom to which she implicitly appeals when making her assertion?
It seems to me that a thoughtful jurist would then be compelled to find the limit condition to subjectivity, or else assert that there is no such limit. In other words, is anything asserted by any judge equivalently valid as an interpretation of the law as any other statement? Is there any such thing as law, really? Or is it all just rhetoric used in support of power politics? With no stopping condition the legal philosophy that refuses to accept the idea of objectivity becomes legal nihilism: The law is whatever those who have the loyalty of the armed forces say it is, or more precisely, act as if it is.
which gets me back to the original problematic quote:
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” — Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001
aside from the extremely offensive racialist message, what does she mean by “better”? Better according to what standard? as far as I can tell all she means is better according to her own subjective thoughts, opinions, or feelings. Better becomes simply what I like better and the rest of you will just have to go along.
Could it mean anything else?