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Judge Sotomayor's Lecture, "A Latina Judge's Voice":
My co-blogger Jonathan Adler points to today's story in the New York Times by Charlie Savage about a lecture Judge Sotomayor published in the Berkeley La Raza Law Journal in 2002 about the role of race and gender in judicial decisionmaking.

  I tend to agree with Jonathan's take that some of what Judge Sotomayor says is entirely unexceptional: surely a judge's personal experience will naturally impact his or her decisionmaking in some cases, as it will draw the judge to some conclusions more or less readily than others. At the same time, I agree with Jonathan that some of the statements seem to go beyond that commonplace observation into more normative territory, and there I suspect different readers will draw different conclusions.

  I thought readers (especially those without Westlaw) might be interested in reading the speech directly, so I have excerpted what I believe to be the key sections below. As I understand the address, it was the Mario G. Olmos Law and Cultural Diversity Memorial Lecture delivered at Berkeley Law School, as the kickoff address for a conference. Also, by way of context, Judge Sotomayor refers in the text below to the views of Judge Miriam Cedarbaum, a former colleague on the District Court bench. Sotomayor's address suggests that Judge Cedarbaum had taken the view that there was little empirical evidence that men and women judge differently, and that it was dangerous to start looking for cultural or innate differences in thinking and judging between men and woman and caucasians and minorities.

  Anyway, here are what I believe are the key sections of the address, with two paragraph breaks added for clarity. It is available in full as A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87 (2002).
  I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench. . . .

  While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. 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.

  I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor--I did graduate from there and I am not really biased except that they seem to be doing a lot of writing in that area - Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be. . . .


UPDATE: The text of the entire speech is here.
Obseradd:
This part might also be useful for review:

"I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations."

[OK Comments: Thanks very much for the suggestion -- I have added that.]
5.15.2009 11:01am
Thackery (mail):
Can someone tell me what La Raza translates as in english?
5.15.2009 11:02am
Matthew K:

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.

The second sentence is rather jarring, though I think the rest of the statement is fairly unexceptional.
5.15.2009 11:10am
ASlyJD (mail):
Thackery:
"The Race"
5.15.2009 11:11am
dmv (www):
Matthew:

The second sentence is, I think, only properly understood in context. So look at the next sentence:


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.
5.15.2009 11:17am
Malvolio:
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.
All I did was take out a paragraph break. Sotomayor believes or claims to believe:

(1) A Latina woman makes a better judge than a white male; and
(2) That some white males support race and gender prejudice is proof of (1).

Ignore the rather vicious sentiment: that isn't even an intellectually coherent position. She's basically saying, "I'm better than whites, because whites are racist."

Uh, no. She can't be a Justice and probably shouldn't be a judge.
5.15.2009 11:22am
Thackery:
DMV:

Your example is unhelpful. She makes a gross generalization in the 1st sentence of your example, which cannot be rescued by reference to two specific examples. If it could, than hispanic males are more likely to be rapists because these two specific racists were hispanic.

ASlyJD:

Thanks.
5.15.2009 11:24am
dmv (www):
Or she's saying:

A Latina woman will reach better conclusions on issues that affect women or minorities than someone who has not had the experience of being either (1) a woman or (2) a minority.

My way of reading the two sentences together is intellectually coherent.

But I know, let's assume that she means the least rational thing possible in interpreting anything she says. This is such a fun game.
5.15.2009 11:25am
dmv (www):
Oh, and also note that she says, "I would hope."

Not, "It necessarily is the case that..."
5.15.2009 11:26am
Brett Stevens (mail) (www):
Can we please have a minority judge or candidate who talks about something other than how oppressed they were, and how we need enforced equality to fix it?
5.15.2009 11:36am
krs:

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.

I'm not well versed in the literature on this stuff, but I recall reading complaints from some quarters that white people don't understand race because society regards them as sort of "race-less" and being white means that race isn't part of your identity at all.

Judge Sotomayor seems to hold this view as well, and I read the above statement as suggesting that "I have every advantage that a white man with my resume does, and on top of that I have a gender and a race that inform my decisions even more." Maybe I'm missing the point by a mile, but that's how her remarks strike me right now. I'm not sure whether I'd agree or disagree with the sentiment. Perhaps someone who knows this stuff better can enlighten me.

As I've said before, I've been unimpressed with most of the commentary on Judge Sotomayor, so I'm very happy to see this post and also Tom Goldstein's post from half an hour ago highlighting Judge Sotomayor's significant appellate opinions. Analyzing what Judge Sotomayor has actually said and done seems to me to be far more productive than looking at basically content free criticisms from her anonymous detractors and content free praise from her proud sycophants.
5.15.2009 11:37am
David Welker (www):
I don't believe, reading the passage as a whole, that she is saying that Latina women are better judges than white males. That interpretation is hard to square with the following:


Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.


But, if Latina women were always better judges than white males, then why include white males at all, as Sotomayer is suggesting we should here?

I think what she is saying is that the bench benefits from the presence of people of color and women. And that having those perspectives will make the judiciary, as a whole, better. I don't think she is saying anything other than that.

I think we should keep in mind that this is not a law review article, but instead a speech. One that may not have been transcribed perfectly. Also, she may have been speaking contemporaneously, and therefor not completed a thought that would have made this more clear.
5.15.2009 11:37am
Constantin:
This has officially gone from just stupid and racist to downright scary. This person should not be a judge.

And dmv, I see no place where she limits her assessment of her racial and gender superiority to only issues "affecting women or minorities."
5.15.2009 11:39am
GSC:
Isn't she making a joke when she says this: "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."
If there was a recording, I wonder if everyone laughs? Sounds like a joke to me.
5.15.2009 11:39am
Conservationist (www):
She's suggesting that minorities, by being outsiders and not part of the dominant paradigm, have a better view toward criticism of it.

My rejoinder, of course, is that if it's gotten that bad, we don't need criticism -- we need a redesign.
5.15.2009 11:40am
Oren:

But I know, let's assume that she means the least rational thing possible in interpreting anything she says.

It's like the opposite of trying have a genuine intellectual argument about a contentious issue while still assuming good faith!


Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging,”

I think this is really the core of the liberal/conservative divide. Judging is both an exercise of power and an activity that requires reasoned judgment -- the latter being intimately tied to relative normative claims and being given poignancy by the former.
5.15.2009 11:40am
GSC:
Btw, in case someone misunderstands my commment, the joke is not that a "Latina woman" would never reach a better conclusion, only that Judge Sotomayor was making the point that one's background affects one's decision, and then jokingly stating that her background is the best one.
5.15.2009 11:41am
Calderon:
Thanks Orin for posting this except. I was wondering if the context shed any light on her quote that "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," but in context it seems to mean the same thing it did out of context. The quote just seems very strange, and in particular what she means by "better conclusion."

My more general problem with the excerpt is that it seems internally confused and not much more than a mystifying cloud of words. She keeps bouncing between appearing to claim that women/minority judges have a different and "better" perspective, to acknowledging the contradictory point that women and minority judges have different points of view within those groups and that at least some white people can understand the (non-existent) "minority" or "women's" viewpoint. It seems like all too many papers or speeches by academics where you read or listen and at the end wondering what they said.
5.15.2009 11:42am
cboldt (mail):
-- A Latina woman will reach better conclusions on issues that affect women or minorities than someone who has not had the experience of being either (1) a woman or (2) a minority. --
.
Define "better" in this context. Is she saying, "My empathy lies with Latinos and women, so in a close case, I will decide in their favor."?
5.15.2009 11:42am
krs:
cboldt, I read her remarks as saying that her experience living as a woman and a member of a minority race gives her additional information that will help her make better decisions than a white guy.
5.15.2009 11:46am
Soronel Haetir (mail):

Can we please have a minority judge or candidate who talks about something other than how oppressed they were, and how we need enforced equality to fix
it?


We already have one one the court, and the left seems to hate him for it.
5.15.2009 11:46am
dmv (www):
GSC:

Honestly, I thought exactly the same thing when I first read it. My attempts to rebut other commenters' assertions that she's a stupid racist whackjob are just that.

Oren:

It's like the opposite of trying [to] have a genuine intellectual argument about a contentious issue while still assuming good faith!

Yes. It's a shame, too, but there it is.
5.15.2009 11:55am
cboldt (mail):
-- I read her remarks as saying that her experience living as a woman and a member of a minority race gives her additional information that will help her make better decisions than a white guy. --
.
I'm still at a loss for understanding "better" as she means to convey that thought. She didn't raise the case, but it's not much of a "plus" to assert that you'd have sided with the dissent in Dred Scott. "Better" is an assertion of some sort of superiority, and I'd hope that superiority would be based on equality before the law and the application of sound logic.
5.15.2009 11:55am
Steve:
I don't think the meaning of this quote is difficult to understand at all. She offers it as a counterpoint to the claim that "a wise old man and wise old woman will reach the same conclusion in deciding cases." And then she cites specific, historical examples - Holmes' and Cardozo's votes upholding gender and racial discrimination, the Supreme Court's jurisprudence on gender discrimination prior to 1972 - where modern thinking would consider these decisions "wrong," and where a minority female Justice may well have made the "right" decision.

That's it. Food for thought, in my view, and not particularly controversial unless you have a hair trigger.
5.15.2009 11:58am
cboldt (mail):
-- then jokingly stating that her background is the best one. --
.
He comment seems to run more serious than humor, in that she uses Holmes and Cardozo as concrete examples of "not better."
5.15.2009 11:58am
Steve:
I'm still at a loss for understanding "better" as she means to convey that thought. She didn't raise the case, but it's not much of a "plus" to assert that you'd have sided with the dissent in Dred Scott.

Really? Is it not generally accepted today that the dissent was the right side to be on?
5.15.2009 11:59am
dmv (www):
Steve:

Food for thought, in my view, and not particularly controversial unless you have a hair trigger.

This is VC. Hair triggers abound. And don't you dare think about taking them away.

2nd Amendment, FTW.
5.15.2009 11:59am
Joseph Slater (mail):
This is VC. Hair triggers abound. And don't you dare think about taking them away.

2nd Amendment, FTW.


LOL.
5.15.2009 12:01pm
cboldt (mail):
-- Is it not generally accepted today that the dissent was the right side to be on? --
.
As far as I know, it's universally accepted today, so that one would not raise that as being a positive distinction, a "plus" over one's peers in the field of jurisprudence.
5.15.2009 12:04pm
David Welker (www):
Just to add a few more points. Since this is a speech, the paragraph breaks have been arbitrarily inserted by some student.

I think the argument may be that a Latina woman would have been less likely to make the same mistake as Justices Holmes and Cardozo who, with their votes, "upheld both sex and race discrimination in our society." If she means that a Latina woman would do a better job than a white male in that particular context, if we take Justice Holmes and Cardozo as representative of what white males would be likely to do, then I don't see her statement as particularly problematic. If, hypothetically, had there been a female Latina Justice deciding these cases, the argument is that they probably would have done a better job and not wrongly chosen to uphold race and sex discrimination. The argument is speculative, but it certainly isn't racist or otherwise offensive.

Also, I think it should be important to highlight what Sotomayor also said, because I think it is critical to interpreting her remarks.


While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.


I think an argument can be made that someone who works towards a goal, but is aware of the difficulties of achieving that goal, may be more likely to succeed in that goal that someone who fails to recognize the difficulties.

But, just as significantly, I think this should frame everything that is said afterwords. She is saying that we should aspire to transcend personal bias and sympathies in judging, but that may be difficult. I think any reading of Supreme Court cases throughout history would decisively demonstrate that, in practice, there are have been many instances where judges have failed to transcend their personal bias and sympathies (i.e. Dred Scott, Lochner, etc. The list goes on and on.) So, this is a hard thing to do.

But, the point should be repeated. Sotomayor believes we should aspire to transcend personal bias and sympathies.
5.15.2009 12:13pm
cboldt (mail):
-- I read her remarks as saying that her experience living as a woman and a member of a minority race gives her additional information that will help her make better decisions than a white guy. --
.
The result ("better" decider) doesn't directly follow from one's race or sex. Substitute any thought-based occupation for "judge." Does being a minority female make a "better" programmer? accountant? politician? CEO? investigator?
.
I just leave the utterance with a lack of understanding what forward-looking "better" she means to convey.
5.15.2009 12:15pm
Redman:
Since the Constitution was written by white men, shouldnt all supreme court justices be white men?
5.15.2009 12:22pm
Sunshine is good:
I love these impossibly-close readings of her speeches. Are her opinions from the bench delivered in these same tones? I would think that her judicial work would be more important to pick apart to see what sort of SC justice she would become...

Hmm, what does "better" really mean? Gimme a break... better with quotes, better without quotes? Did she speak with quotes, or maybe make that little hand-signal indicating quote marks?!
5.15.2009 12:26pm
Strict:
The "bad" decision made by the white male judges was to uphold race and sex discrimination.

The "better" decision would have been to strike such discrimination down.

She didn't say that the "better" result would have directly come from the judge's race or sex - just that in those old race and sex discrimination cases which were wrongly decided by white males, she would "hope" that a Latina female "more often than not" would have, partly because of her personal experience, reached the "better" result.
5.15.2009 12:27pm
RPT (mail):
"Since the Constitution was written by white men, shouldnt all supreme court justices be white men?"

There are many here who may agree, and look fondly back to the pre-women's suffrage and Civil Rights Act days, when "rational men" could be men. These threads have been a good preview of the attacks that will be led by Jeff Sessions, and will be made against any non-white male nominee by the party which asserts that Rush Limbaugh's patriotism and service to the country trumps Colin Powell's.
5.15.2009 12:34pm
runape (mail):
Is there audio or video of the speech available somewhere? In light of the nature of the conference and the law school where it was hosted (and some of the comments in the speech), it seems the audience may have had a substantial Hispanic attendance; and, in that light, the "wise Latina woman" quote sounds like a joke along the lines that alumni frequently give when they give a commencement address at their alma mater (not-very-subtle not-very-funny digs at peer schools or whatever).
5.15.2009 12:38pm
Per Son:
Oy vey. Judges with varied experiences are good for the judiciary, multiple judges with multiple experiences are good too.

I know very little about Judge Sotomayor, and make a habit of not judging people based on a few lines from a speech. My comments are more about the judiciary as a whole.

Many people on this site criticize the judges who come from the white liberal elite, because it appears that they bring a very particular point of view. For example, not many white wealthy liberals seem to know much about guns (I am stereotyping here, since I know a lot) or hunting, and the daily rigors of being a farmer. Now at the trial level, they need to make a ton of decisions regarding what the reasonable person is in a whole lot of instances before a jury will ever hear anything. Do you only want

All the time I here white people say what is and is not racist against blacks and hispanics, but maybe the targets of such racist speech have a better idea of what actually hurts/offends them. People with those experiences can shed valuable light on what is reasonable for, perhaps, Title VII cases.

A personal example - on several seperate occasions, highly intelligent non-Jews tried telling me that the expression "Jewing someone down" is actually a compliment to Jews, because Jews are such great bargainers. WHy did they think that? It was not because they are dumb, it is because they never dealt with Jews much, and their personal experiences made it ok to use such nasty anti-Semetic slurs without realizing the venom spewing from their lips. A varied judiciary is a bullwark against this type of ignorance and bias.
5.15.2009 12:43pm
ASlyJD (mail):

Does she speak with quotes?


Amazingly enough, it is possible! She could have said "Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a quote better end quote conclusion than a white male who hasn't lived that life." (None of that stupid "quote unquote better" business I hear even news people try to pass off as proper usage.)

Personally, I lean toward the faux humor explanation.
5.15.2009 12:46pm
GD:
I thought Cardozo was Hispanic.
5.15.2009 12:50pm
RPT (mail):
Really, isn't the point of these Sotomayor discussions to allow Obama critics to proclaim their own intellectual objectivity and superiority, lack of bias, or perspective or subjectivity while parsing every statement of anyone who is a potential Obama nominee. It will certainly get worse.

Per the Online Dictionary:

"La Ra·za (lä räsä)
n.

Mexicans or Mexican Americans considered as a group, sometimes extending to all Spanish-speaking people of the Americas.
[American Spanish, the people.]"

Not "the race".
5.15.2009 12:50pm
Benjamin Davis (mail):
Gee I remember people praising John Harlan for his dissent in Plessy v/ Ferguson which came from his experience growing up in the South. Also, Powell in Bakke in which many remarked that his decision was informed by his experience with the desegregation of Virginia schools when he lived there. Also, Thurgood Marshall being informed by his experience as a black civil rights lawyer. Or, Hugo Black and his membership in the KKK making him more progressive on race issues then was expected. In all these cases, their life experiences (and yes, being a white person or a hispanic person or a woman or anything else influences one in ways that are by their nature complex and sometimes hard to explain). So, I find nothing in what she has said that is either an "outlier" or controversial. I think people are grasping at straws and I again wonder about whether this stuff on her is a thinly veiled effort to denigrate a competitor to someone who is preferred by the speaker.

My personal worry is that, with the exception of Koh, I have no sense of the persons whose names are bruited as having strong abilities in international law - not U.S. foreign relations law but international law. I think that leads to impoverished decisions by our Supreme Court.


Best,
Ben

P.S. I will say I am against Dean Elena Kagan of Harvard because of her support for Jack Goldsmith as having "good hands" for the future of international law at Harvard. Maybe merely puffery, but not true. Maybe he is great at US foreign relations law, but not international law. See his torture memo twisting international treaty language to authorize taking people out of Iraq to third countries to be tortured.
5.15.2009 12:53pm
Per Son:
Cardozo was a white Sephardic Jew. Like many Sephardic Jews, his family fled from the brutal oppresion of the Porteguese Inquisition to The Netherlands and England.

Sometime later his family made it to America.
5.15.2009 12:57pm
ASlyJD (mail):
RPT:

raza [rah’-thah]
noun
1. Race, generation, lineage, family, clan: branch of a family. (f)
3. Each of the races of mankind. (f)

Yes, in context, the word refers to the Mexican American Organization; however, the word does translate to race.
5.15.2009 1:00pm
ASlyJD (mail):
And apparently my link did not work.

I am quoting from the translation given by www.spanishdict.com
5.15.2009 1:01pm
/:
La Raza

RACIST!

Oh, they're not white? Carry on.
5.15.2009 1:05pm
CJColucci:
I have appeared before Judge Sotomayor and did not like the experience. As recently as a few days ago, I would never have thought of her as a Supreme Court Justice. What I have read here and elsewhere over the last few days, however, has caused me to change my mind.
5.15.2009 1:06pm
dmv (www):
ASlyJD:

Look here.

You'll notice that the definition is not specifically referring to the organization.

Indeed, this definition is the only one to make sense in the context in which it appears in this instance: the Berkeley La Raza Law Journal, whose website says:

Entering its twenty-eighth year, the Berkeley La Raza Law Journal is the longest continually published journal of legal scholarship that focuses on Latina/o conditions, communities, and identities in the U.S.

RPT wins this one.
5.15.2009 1:06pm
ruuffles (mail) (www):
OK this is wiki because googling is not specific enough

La Raza (literally "The Race") is sometimes used to denote people of Chicano (i.e. Mexican American) and Mexican descent and the Latino world, as well by mestizos who share Native American or national Hispanic heritage.

i don't know what organization you're talking about
5.15.2009 1:07pm
Per Son:
CJColucci:

Can you give more? For example, Scalia is an arrogant and obnoxious prick during oral arguments, and I assume even his ideological allies would tend to agree.

Or is bad in argument and opinions?
5.15.2009 1:09pm
dmv (www):
P.S. to my 1:06 pm:

It's the only one that makes sense because if "la raza," in this context, meant simply "race," the Berkeley La Raza Law Journal would focus on racial issues generally.

The Berkeley La Raza Law Journal focuses on Latina/o issues.

"La Raza" is defined as Mexican-Americans generally, Mexican-American culture, or "Mexicans or Mexican Americans considered as a group, sometimes extending to all Spanish-speaking people of the Americas."
5.15.2009 1:09pm
dmv (www):
ruufles:

The organization commonly called "La Raza" is the National Council of La Raza.
5.15.2009 1:10pm
dmv (www):
Although I should also note that, contra ASlyJD, the National Council of La Raza is not a specifically Mexican-American organization. It's an organization focused on Hispanic civil rights and advocacy. Not just Mexican-American civil rights and advocacy.
5.15.2009 1:12pm
ASlyJD (mail):
Let's go to Thackery's question:

Can someone tell me what La Raza translates as in english?


It's a Spanish word. I gave the translation.

Now, we can ask Thackery whether he was wanting the Spanish definition or the meaning of the word when used in English. I gave the former; apparently others think he was requesting the latter.

I am at a loss as to how I lose by answering the question as asked.
5.15.2009 1:13pm
dmv (www):
Well, first, I think it's clear that he wanted to know what it meant in terms of the name of the journal, because the only time "La Raza" appears in this thread other than you and me is Thackery asking the question in the comments, and in the original post in the name of the journal.

Second, you lose because I was reading more into your response on what it means in Spanish than simply answering what "raza" means in Spanish. I apologize for that. I lose this one. :P
5.15.2009 1:18pm
ASlyJD (mail):
dmv,

I was unaware of their other advocacy work, as in Kansas City La Raza's main accomplishment was moving their annual convention in response to the mayor putting a member of the Minute Men on the Parks board.
5.15.2009 1:18pm
Oren:

Does being a minority female make a "better" programmer? accountant? CEO? investigator?

Judging is not like those things -- it is not something can be measured by some objective criteria towards a universally-agreed-upon goal. It requires, gasp, judgment.
5.15.2009 1:19pm
ASlyJD (mail):
dmv:

I understand. Words hastily typed convey poorly what we mean to say, and speaking as Carroll's Caterpillar -- meaning nothing more or less than the words -- is an invitation for misunderstanding, due to its very rarity.
5.15.2009 1:33pm
A. Zarkov (mail):
dmv:

Or she's saying:

A Latina woman will reach better conclusions on issues that affect women or minorities than someone who has not had the experience of being either (1) a woman or (2) a minority.


I think you are trying to make a silk purse out of a sow's ear. If she meant what you say then she would have stated that if only to head off the obvious misinterpretation that would naturally ensue. But even your version has problems. We could well argue that a Latina woman would be encumbered by emotional baggage that would cloud her reasoning.
5.15.2009 1:33pm
cboldt (mail):
-- Judging is not like those things -- it is not something can be measured by some objective criteria towards a universally-agreed-upon goal. It requires, gasp, judgment. --
.
So being a minority female makes one better at exercising judgment?
5.15.2009 1:40pm
Thackery:

...when Ms. Murguia of the National Council of "The Race" announces that "when free speech transforms into hate speech, we've got to draw that line " we don't know whether to laugh or cry, since her own organization's very nomenclature "The National Council of La Raza" is hate speech to the core.

No other ethnic organization these days would dare to refer to themselves as "The Race." Despite all the contortions of the group, Raza (as its Latin cognate suggests), reflects the meaning of "race" in Spanish, not "the people" — and that's precisely why we don't hear of something like "The National Council of the People" which would not confer the buzz notion of ethnic, racial, and tribal chauvinism.

Racist indeed.
5.15.2009 1:49pm
einhverfr (mail) (www):
You know, from a philosophical perspective, I agree with most, though not all, of what Sotomayor is saying. It is true that ANY EXERCISE of critical reasoning is an exercise cannot be fully separated from the background of the individual involved in that reasoning. Justice Thomas's statements at the award ceremony recently helped me understand how his life experiences, and even his racial identity come into play with regard to his dissents from Kelo to Hamdi.

However, this is where Sotomayor lost me:

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.


Now, "would hope" softens this statement much more than "think likely." However, it fundamentally moves from a framework where these different pieces bring something unique to the discussion and shed light on eachother to a sort of racial and sexist chauvanism that I don't want to see in a judge. This is not "I can bring a new and helpful perspective" but rather "I hope my perspective is BETTER than those of the others." This is reason to question Sotomayor's open-mindedness in deliberative processes. While it is still premature to make such an opinion unalterable, it does hurt her chances in my book, however.

Now, back to the larger discussion though. A lot of this comes back to the question of whether wise people will always agree on every difficult issue. How does gender, race, past experiences, etc, bear on one's understanding of a topic? Here I think Sotomayor's points, once we disregard the problematic statement are quite accurate and could be helpful.

I get the sense that a lot of the objections to this perspective occur from the sense that within a system of law, every legal question has exactly one optimal answer and therefore the important quality in a judge is to find that single optimal answer more often than others might. While this is true in a limited case, with decisions which merely and correctly uphold past precedent and therefore cause no changes to the system of law, it is not true as soon as novel questions are raised or elements of past precedents are shown through the course of time to be unworkable. In these cases, every decision represents a change, however subtle, in the system of law.

My own approach, as an outsider, is that of a postmodern structuralist (applying structuralism from the fields of linguistics and anthropology to the field of law and discounting the idea that modernist progress makes things better). In this approach, the relative merit of any specific rule, law, etc. is in a void meaningless and obtains its meaning only in how it interacts with other rules, laws, etc.

For example, if the Framers couldn't agree as to whether the Alien and Sedition acts were Constitutional (and they were eventually repealed before the Supreme Court would have taken up the issue), originalism with regard to freedom of expression becomes something built on a foundation created from arbitrary selection of old documents based on the prejudices of the judge. We are fortunate that the Jefferson/Madison view has been held as the meaning of the First Amendment's free expression clauses, but we ought to be mindful that this represented a minority opinion of folks ratifying the Constitution.

In short, every interesting case represents SOME exercise of judicial judgement and creation of judicial policy, guided from the background and resulting personal understanding of the judge. When a judge such as Sotomayor says that impartiality is a worthy but unattainable goal, I have no problem with this statement because it is simply true. I only have an issue when she says her point of view is superior to others more often than not. She hasn't quite said this but has implied that this is what she thinks. This is the sole issue here, IMO and the rest of the lecture is actually correct.
5.15.2009 2:04pm
RPT (mail):
"Racist indeed."

Yes, Victor Davis Hanson is certainly the most qualified person to tell members of La Raza what the name of their organization "really" means. Next week we will have the new official position of the R's that millions of Americans are members of the "Democrat Socialist Party".

I can see now how the possible (but unlikely) nomination of my former colleague Carlos Moreno would go.
5.15.2009 2:07pm
Javert:

Judging is not like those things -- it is not something can be measured by some objective criteria towards a universally-agreed-upon goal. It requires, gasp, judgment.
Translated: Shred the Constitution. We want a government of men (driven by racial passions) not of laws.
5.15.2009 2:11pm
einhverfr (mail) (www):
Regarding the translation of "La Raza," it means (roughly) the same as older English definitions of "the race." However one has to be very careful about projecting modern concepts in English onto languages which inherited rather than borrowed the word. Also, one can't generally translated by substituting word for word and have it come out to be ideomatically correct.

Older uses of "race" in English were closer to what has been termed "ethnicity" today. Today, it sounds stilted to talk about "The French Race" or to suggest that the Norwegians, English, Danes, and Swedes are somehow different races, but earlier in our language, this was a common way the word was used. In these cases "race" was usually used to denote an intact culturo-linguistic group and hence the French, the Spanish, etc. would qualify. But because of uncertain scope one could also talk about a Latin American race, a Celtic race, a Pan-Germanic race, etc.

La Raza also shows some of its Latin elements by tying to familial heritage, family branches, etc. Thus it can be used more narrowly than the English loan-word.

So in this context, I think "La Raza" in dealing with Latino issues is looking at this from an intact cultural group rather than a "racial" group in the way we typically think of it.
5.15.2009 2:19pm
Gabriel McCall (mail):

Does being a minority female make a "better" programmer? accountant? CEO? investigator?
Judging is not like those things -- it is not something can be measured by some objective criteria towards a universally-agreed-upon goal. It requires, gasp, judgment.


I learn new things every day on this blog, including the fact that being a programmer, accountant, CEO, or investigator does not require the exercise of judgement.

Pro tip: Even accounting, a discipline which one would like to imagine offers just one objectively-correct answer to any question, requires endless exercise of personal judgement... and this is true even within the constraints of the GAAP.
5.15.2009 2:21pm
einhverfr (mail) (www):

I learn new things every day on this blog, including the fact that being a programmer, accountant, CEO, or investigator does not require the exercise of judgement.

Pro tip: Even accounting, a discipline which one would like to imagine offers just one objectively-correct answer to any question, requires endless exercise of personal judgement... and this is true even within the constraints of the GAAP.


As the owner (and effective CEO) of a small business that mostly does computer programming of accounting software, I too resent the idea that none of this requires judgement.

Also, I will say that although I don't think women categorically make better or worse participants in these fields, projects that I work on that have diversity in gender, ethnicity, etc. tend to go BETTER than those where that diversity is lacking.

Once again, I think there are elements to Sotomayor's points which strike me as arrogant. However, aside from that, I think that epistemological points are correct and that impartiality is fundamentally both worthy as a goal and unattainable except as illusion.
5.15.2009 2:33pm
U.Va. Grad:
Whatever's going on with the National Council of La Raza, the Berkeley La Raza Law Journal has no affiliation with it whatsoever. The journal's a good, old fashioned secondary-journal-run-by-lefty-student-acitivsts.

http://www.boalt.org/LRLJ/about.php
5.15.2009 2:41pm
U.Va. Grad:
Me and my poor HTML. The journal website.
5.15.2009 2:42pm
sbron:
National Council of La Raza seriously considered changing their name due to the negative connotation of "Raza." Victor Davis Hanson offered the suggestion that if NCLR wants a more race-neutral name, they could change it to "National Council of Das Volk."
5.15.2009 2:45pm
Oren:

So being a minority female makes one better at exercising judgment?

Not necessarily, but the notion that judgment comes with experience is not something novel I just came up with.
5.15.2009 2:45pm
Oren:

Pro tip: Even accounting, a discipline which one would like to imagine offers just one objectively-correct answer to any question, requires endless exercise of personal judgement... and this is true even within the constraints of the GAAP.

I was thinking of programming (of which I do a lot in my job) -- there is a specification and an implementation and you can objectively determine whether the latter meets the conditions of the former.
5.15.2009 2:46pm
Oren:



Judging is not like those things -- it is not something can be measured by some objective criteria towards a universally-agreed-upon goal. It requires, gasp, judgment.



Translated: Shred the Constitution. We want a government of men (driven by racial passions) not of laws.


Sure, because a mechanistic interpretation of the Constitution can easily explain construct judicial doctrine that implements normative (and ultimately subjective) phrases such as:

unreasonable search and seizure
cruel and unusual punishment
excessive fine
due process
speedy trial

What the hell does "unreasonable search" mean except as a recourse to human judgment? How could you even answer a question like that in an objective sense?

How are judges interpreting the 5A/14A supposed to figure out what process is "due" in a particular context? Even they figure out the interpretive part, what about construction -- how are they do make actual rules to implement their interpretation?

Reasonable people disagree about interpretation and construction, but to pretend like it's just not needed at all because the Constitution is self-executing is intentional self deception.
5.15.2009 2:53pm
cboldt (mail):
-- but the notion that judgment comes with experience is not something novel I just came up with. --
.
There you go again, changing the subject.
5.15.2009 2:55pm
PatHMV (mail) (www):
On the issue of "La Raza," if a bunch of white folks started an organization and named it "The Race," or "The National Council of The Race," would you folks seriously not find that offensive or racist? The focus of that group, the focus of any organization that calls itself "the race," is on their racial characteristics, not the content of their character or their abilities or even their shared philosophical beliefs.

If David Duke started "The National Council for the Race," people would rightly scream bloody murder. This should truly be no different. We're supposed to be rising above racial differences, not increasingly identifying with them.
5.15.2009 3:03pm
Javert:

but to pretend like it's just not needed at all because the Constitution is self-executing is intentional self deception.
I had planned on responding, until you went ad hominem.
5.15.2009 3:04pm
einhverfr (mail) (www):
Oren:

I was thinking of programming (of which I do a lot in my job) -- there is a specification and an implementation and you can objectively determine whether the latter meets the conditions of the former.


And yet one thing you will never see is a complete specification.
5.15.2009 3:12pm
einhverfr (mail) (www):
PatHMV:

The point I bring up is that "La Raza" doesn't exactly mean "The Race" in Contemporary, Standard American English.

What is the difference between:

"Religious Organization of The Folk" and "Religious Organization of Das Volk?" The Folk and Das Volk are closer than Race/Raza.
5.15.2009 3:16pm
Ariel:
I'd like to challenge some of the bases for her argument, instead of considering whether it makes her fit to be a judge or not. Under the modern definition of a Hispanic, Cardozo is a Hispanic. A Hispanic is someone of Latin American or Spanish origin. Cardozo's background as a Sephardic Jew means that he would be considered Hispanic under the modern definition. Now here's where it gets interesting: before 1970, there was no legal category called Hispanic. They were either White, Black, or Native American, depending.

To add yet another curve, at the time of the NAACP's founding, Jews were considered colored people, not white people. So while Cardozo would be considered a Hispanic under modern law, he would be considered a colored person under the law roughly around the time of his judgeship (not sure about the exact coincidence of timing). In other words, under either the modern definition or the (roughly) contemporaneous definition, Cardozo may have voted in favor of upholding race discrimination, but it was not because of his race.
5.15.2009 3:27pm
Ariel:
FWIW, use of the words "La Raza" is used by all of my Mexican-origin friends in particular as an explicitly racialist category. They'll often hit their chest twice and then do a sort of salute while saying it.
5.15.2009 3:32pm
Oren:

And yet one thing you will never see is a complete specification.

Not true. I do computational science so the complete specification is in the laws of physics that I implement (including, of course, simplifying assumptions).

As a trivial example, if you write a molecular dynamics (NVE) simulation, you check that it conserves energy &momentum and that's it -- that assures that it is solving* the differential equations that are Newton's law of motion.

* Numerically for some arbitrary starting condition *
5.15.2009 3:32pm
Perseus (mail):
Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging,”

I found that to be the most jarring statement. Is the statement that “there is no objective stance but only a series of perspectives" itself an objective statement or is it but one of a series of equally (in)valid statements? Postmodern drivel. Judging becomes little more than a language game in which the judge puts her thumb on the scale in favor of the (arbitrarily defined) "oppressed." Or as Chief Justice Roberts would put it, “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”
5.15.2009 3:49pm
Rock Chocklett:

FWIW, use of the words "La Raza" is used by all of my Mexican-origin friends in particular as an explicitly racialist category. They'll often hit their chest twice and then do a sort of salute while saying it.


I remember there used to be some Hispanic pro wrestler(s) who would yell "Ariba la raza!" I used to work at a restaurant with a bunch of Hispanic guys, and I would yell that phrase to them whenever I went into the kitchen. I had no idea what it meant, but the younger guys thought it was hilarious and saluted me. The older men muttered under their breath in contempt.
5.15.2009 3:51pm
einhverfr (mail) (www):
Oren: Complete specs exist probably for scientific simulations. However, for business tools, they are about as common as a pink unicorn.

The specs themselves have to be filled in with a lot of knowledge about how exactly the tool will be used, common sense, etc.
5.15.2009 3:56pm
einhverfr (mail) (www):
Perseus wrote:

I found that to be the most jarring statement. Is the statement that “there is no objective stance but only a series of perspectives" itself an objective statement or is it but one of a series of equally (in)valid statements? Postmodern drivel.


And yet both Einstein and Heisenberg discussed the process of deriving scientific theories from observations in remarkably similar terms and were able to show that this is the case for epistemological reasons. Why would a field like law admit of purer objectivity than any of the sciences?

Here is an exercise for you: Go read the following three cases:

Ex parte Milligan
Ex parte Quirin
Hamdi v. Rumsfeld

In particular, ask yourself which of the opinions in Hamdi most closely match the precedents. Was Rhenquist better at reading than Scalia? Was Thomas closer to the truth than Stevens? (For the record, I favor Scalia's dissent in that case, but I can understand how the plurality got to its decision.)

The problem, as Walter Ong ("Orality and Literacy") and George Steiner ("After Babel") both point out is that verbal communication doesn't occur in the objective world. Instead it is a series of inter-subjective operations. For this reason arriving at a singular correct interpretation of any written text is a fundamental impossibility.

We get around this problem with two words, however: stare decisis.
5.15.2009 4:04pm
Oren:


We get around this problem with two words, however: stare decisis.


How does this get around the problem if we can't even know what it means?!
5.15.2009 4:05pm
Per Son:
Ariel-

By your own definition, Cardozo cannot be Hispanic since his family came from Portugal. As for the term Hispanic - prior to its use those now generally referred to as Hispanic were "other."

In modern terminology, Hispanic does not refer to people from Spain. Spainiards are not Hispanic. Instead, it refers to people who come from Latin America/Caribbean countries formerly ruled by Spain. Those from Belize, Surinam, and Brazil are not Hispanic.

As for Jews being considered colored back in the day, I am not sure I agree with you. For example, I have seen very old deeds that referred to Israelites and Coloreds referring to banned groups.
5.15.2009 4:27pm
Javert:

The problem, as Walter Ong ("Orality and Literacy") and George Steiner ("After Babel") both point out is that verbal communication doesn't occur in the objective world. Instead it is a series of inter-subjective operations. For this reason arriving at a singular correct interpretation of any written text is a fundamental impossibility.
Does your statement have an objective interpretation? If you say "yes," then you're contradicting yourself. But suppose you say "no." Then what about that statement? The Greeks called this: reducing a skeptic to babbling.
5.15.2009 4:27pm
Perseus (mail):
einhverfr: Her statements are far more radical than merely making the common sense observation that discovering the one true meaning of the text is a difficult, if not impossible task. Rather, it is her postmodern belief that there really isn't one true meaning, just a series of perspectives:

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 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...

There is always a danger embedded in relative morality...
5.15.2009 4:36pm
einhverfr (mail) (www):
Oren:

How does this get around the problem if we can't even know what it means?!


It does because it constrains future decisions and allows a smaller scope of inquiry. Without stare decisis, then the latitude is much higher. We can't come up with a single objective view, but we can come up with a view which is subject to a common, traditional anchor.
5.15.2009 4:45pm
einhverfr (mail) (www):
Perseus:

Her statements are far more radical than merely making the common sense observation that discovering the one true meaning of the text is a difficult, if not impossible task. Rather, it is her postmodern belief that there really isn't one true meaning, just a series of perspectives.


As Heisenberg stated (about epistemology, not quantum physics): "Data does not imply theory." So I think Sotomayor is factually correct, that documents don't have a single true meaning and that the meaning that we can derive from it is in part a function of our perspective.

This being said.... this doesn't mean that all perspectives are created equal. Grounding in our legal tradition and the documents are both important. This is what I call "collective grounding" which takes the place of "objective meaning" in my own analysis.
5.15.2009 4:52pm
einhverfr (mail) (www):
Javert:

Does your statement have an objective interpretation?


I suppose I would need to know exactly what you mean by "objective" and "interpretation." By my definitions of those terms, one can't interpret something in an objective manner for the same reasons that Heisenberg (and Einstein too!) argued that data does not imply theory.

Interpretation is fundamentally a subjective exercise. There is no objective interpretation even if we can agree on commonality of meaning. Now I think I could rephrase your question as "do all reasonably valid interpretations of your statement have some degree of common ground?" Sure. Can we even argue that "there is an interpretation which could serve as the basis for a broad consensus."

However, just because you get my message doesn't mean it has objective meaning independent from both of us. This was a big issue the structuralists in the field of language noticed early on (Whorf, Sapir, etc), and even later linguists (Chomsky, etc) have not been able to negate this basic finding.

Looking for the objective meaning in a document is like looking for the objective existance of daylight savings time, or the objective value of the dollar (divorced from our PERCEPTIONS of its value). These things work because we all have a pretty good idea of what other people expect the dollar to be worth, and we all agree as to how to set our clocks. But these things don't have objective elements divorced from our subjective uses.

So what I am getting at here is the concept of collective grounding. The fact that Sotomayor is epistemologically correct that there is no single objective interpretation of a document does NOT provide license to just make everything up. Instead it mandates additional effort at care in the judiciary and a commitment to tradition which must therefore take the role of restricting meaning and interpretation. This means that decisions must be grounded in:

1) Language and historical perspective of the original documents
2) History of interpretation

In short if we dispense with the notion of objective meaning, but we still understand we have to be able to debate and discuss meaning, this means it is EVEN MORE Important to follow a conservative methodology when it comes to jurisprudence.

I don't think you have to go from "there is no single true meaning" to "we can make it up as we go along." Heisenberg, in "Physics and Philosophy" spent a fair it of his book disputing the idea that it was even POSSIBLE to discover scientific truth as an abstract, objective concept.
5.15.2009 5:11pm
Cato The Elder (mail):
I am not a fan of the leftist penchant for identity politics at all. But I think many people misunderstand the term "La Raza", which does not correspond exactly to an inimical racialist meaning that it might convey in English. Ironically, one could see the idea as part of a fight against identity politics.

"La Raza" is a part of the Mexican nationalist mythology, formed in response to the very stark inequalities between the the European-descended elite and Mestizo and Indian underclass. As anyone who has studied Mexican history can see, many of the pioneers of land distribution schemes and socialist movements were Mestizo in origin, like Zapata and Villa, while the oligarchy and politicians in charge up till the present day still look as light-skinned as their conquistador ancestors. Because racial political self-identification is such a destructive force in a democracy, the term's is an attempt to convince people that they are all one "Race", similar to the popular fuzzy headed notion of all human beings being one race, "The Human Race," that one might find amongst college students. Also underlying the idea is a romantic notion that those demographics determining social classes will continue to mix, similar to the way some people in the United States believe society's acceptance of interracial marriage will heal pre-existing tensions. Indeed, it was first used in the the work La Raza Cosmica in that sense, according Wikipedia, to describe the author's hope in the "gradual racial mixing that was already underway in the Hispanic world". Their elite know the benefit of assimilationist rhetoric than ours.
5.15.2009 5:16pm
Eli Rabett (www):
La Raza = The Chosen People . . .
5.15.2009 5:19pm
Cato The Elder (mail):
*better than ours.
5.15.2009 5:20pm
/:
Because racial political self-identification is such a destructive force in a democracy, the term's is an attempt to convince people that they are all one "Race", similar to the popular fuzzy headed notion of all human beings being one race, "The Human Race," that one might find amongst college students.


Too bad nobody told the Mexicans that.
5.15.2009 5:23pm
Ariel:
Per Son,

Look at the Wikipedia link I put in there, as well as the cited Census site. Hispanic is defined to include people of Spanish origin. I've seen other definitions that use it to include Portuguese as well - I think it was the OMB, but it might have been another gov't agency, that includes anyone with ancestry from the Iberian peninsula, as well as Latin Americans.

Prior to 1970, Hispanics were not "other." That's precisely the point - they were whatever they were, until a separate category was invented. So they were only other if they didn't fall into any of the other groupings. You need go no further than Loving v. Virginia - the trial judge there described the races as "white, black, yellow, malay and red." Those were the legal categories in 1959, when he issued his opinion. Hispanics were not a separate category, and were not "other" either.

As to Jews, I heard that they were considered colored persons from a friend of mine, who I trust, but who could be wrong. It does explain why the NAACP is not called the NAANP, which would have made sense if it only referred to blacks, using the language of that time.
5.15.2009 5:23pm
Perseus (mail):
So I think Sotomayor is factually correct, that documents don't have a single true meaning and that the meaning that we can derive from it is in part a function of our perspective.

That claim of "fact" is itself the result of a particular, contestable, epistemological perspective, from which I dissent.
5.15.2009 5:30pm
Javert:

So what I am getting at here is the concept of collective grounding.
So during the Bronze Age, the world was flat because that was the "collective grounding?"
5.15.2009 5:32pm
Cato The Elder (mail):
/:,

I think the reason for that, is because our under-achieving minority population is much smaller than Mexico's, we Americans have the luxury of creating protected racial groups - why wouldn't an immigrant group who sees the tempting fruit offered try to snatch it?
5.15.2009 5:34pm
Oren:

That claim of "fact" is itself the result of a particular, contestable, epistemological perspective, from which I dissent.

I don't think she would have any problem with that.
5.15.2009 6:00pm
/:
why wouldn't an immigrant group who sees the tempting fruit offered try to snatch it?

Integrity? Independence? Self-esteem? Stop me when I get too individualistic.
5.15.2009 6:07pm
sbron:

I think the reason for that, is because our under-achieving minority population is much smaller than Mexico's, we Americans have the luxury of creating protected racial groups - why wouldn't an immigrant group who sees the tempting fruit offered try to snatch it?


The problem is that Latinos are now slightly over 50% of those 18 and under in California. Whites are now only 30% of K-12 students. So you have a situation where the majority is eligible for preferences that various minorities (white, Asian) are barred from.
5.15.2009 6:10pm
jukeboxgrad (mail):
Integrity? Independence? Self-esteem?


Do you mean like the kind of "integrity," "independence," and "self-esteem" demonstrated by "libertarian academics who oppose government ownership of universities" but nevertheless "take jobs with state schools?" Because it's possible to come with elaborate rationalizations for this behavior?

Government hands out all kinds of benefits and giveaways (tax breaks etc) to all kinds of individuals, groups and companies, for all sorts of reasons, both rightly and wrongly. When do you see those benefits turned down out of of a sense of "integrity," "independence," and "self-esteem?"

I have a feeling there are a bumch of old white guys in the South who reliably vote GOP and who nod their heads when Rush talks about Social Security being a socialist evil, but who also don't think twice about cashing their monthly check when it arrives.

So I wonder where one might be able to find the kind of "integrity," "independence," and "self-esteem" you're talking about. I guess an example would be someone who was admitted to, say, Harvard, based on legacy admissions, and decided to give up the slot to someone else who earned it through merit. Know anyone like that?
5.15.2009 6:32pm
einhverfr (mail) (www):
Perseus wrote:

That claim of "fact" is itself the result of a particular, contestable, epistemological perspective, from which I dissent.


Ok, but at least we can discuss this.

Is there such a thing as an objective thought?
5.15.2009 7:08pm
Per Son:
Ariel:

I just happen to disagree with the wikipedia entry. Notwithstanding whether it is right ot not, you can agree that Portuguese does not equal Hispanic.
5.15.2009 7:29pm
keypusher64 (mail):
The particular historical meaning of "La Raza" is the mestizo race that resulted from the fusing (nice euphemism, that) of the Spanish conquistadores and the Indians. What it means now has been argued at length in the thread.
5.15.2009 8:30pm
Javert:

Is there such a thing as an objective thought?
Yes -- a thought that corresponds to reality and that integrates with the rest of one's knowledge.
5.15.2009 9:19pm
Desiderius:
Javert,

"Translated: Shred the Constitution. We want a government of men (driven by racial passions) not of laws."

Bingo.

Liberalism: the rule of law safeguards the rights of all (including the weak) more effectively than the rule of men.

Progressivism: Rule of wise old Latinas? Sign me up! End the patriarchal oppression that keeps women in the dark!
5.15.2009 9:38pm
Desiderius:
Javert,

"Yes -- a thought that corresponds to reality and that integrates with the rest of one's knowledge."

That's too solipsistic. Indeed, it is the salient feature of objective thought in this context that it looks outward in an attempt to construct a shared reality among diverse minds, and thus the raw material out of which are woven the ties of trust necessary to bind together a community broader than one bound together by the gene.

The subjective is essential for new creation, art, all sorts of things, but it has no place where the ties of that broader community are most sorely tested: before the bench.
5.15.2009 9:59pm
nick:
Changing the meaning of "La Raza" from its actual Spanish meaning, "The Race", to "The Ethnicity" doesn't make it any less bigoted. The word with the bigger problem here is "La", which definitely translates to "The", not "A". To describe mestizos as *the* race instead of *a* race, or as *the* ethnicity instead of *an* ethnicity, implies that other races or ethnicities don't count or are inferior in status. In either case it's an extremely bigoted implication made by the name "La Raza".

BTW, the fact that alternative meanings of "raza" are other genetic groupings, such as "family" or "clan", doesn't get you any closer to the lie on La Raza's website that it just means "community".
5.16.2009 12:37am
nick:
That should read "or Hispanics as *the* ethnicity instead of *an* ethnicity..."
5.16.2009 12:43am
Jason F:
Hispanic may not have been an official census category until 1970, but that does not mean that prior to then, Latinos were just considered white peope who spoke Spanish. Read any history of the annexation of Texas or the Mexican-American War; there was indisputably a racial element to what was going on, and that necessarily implies that Latinos were considered something other than white.
5.16.2009 1:39am
Nick056:
Desiderius, the "subjective" is a necessary adjunct to "the normative" which is of course at play before the bench.

Incidentally, my reading of Sotormayor's controversial phrase is that she would hope a person with direct life experience pertaining to a class of people would render a better ruling in that area than someone not equipped with the asset of experience. It is nothing more than the hope that a "wise Latina woman" with a relevant and "rich" background can employ that background in discovering the best holding with the most persuasive reasoning in a certain set of cases. Following that is a reminder that intellectually acute people without the benefit of "rich" and relevant experience in minority issues were quite capable of reaching the wrong decision.

From this we can infer that she hopes such experience would've supplied those men with the greater wisdom that aids one in arriving at a better judgment.

Finally: do people on this thread who've not yet heard of "La Raza" and who are, at the same time, offering an uncharitable if not incorrect view of Sotormayor's speech really want to serve as persuasive exhibits for the necessity of being familiar with an issue before you parse or pass judgment on statements topical to that issue? There's nothing wrong with not ever having heard of "La Raza" but the very issue at the heart of this is, it's unwise to be heedless or inconsiderate in judging something of which you have little first-hand experience. Judgments rendered by a whole body of such people, exclusively, would, one expect, be the poorer for it.
5.16.2009 5:06am
J. Aldridge:
Can we please have a minority judge or candidate who talks about something other than how oppressed they were, and how we need enforced equality to fix it?

But that wouldn't win elections among the HUGE Hispanic voter base (compliments of federal usurpation and juridical activism) anymore.
5.16.2009 7:49am
J. Aldridge:
^^^ juridical = judicial
5.16.2009 7:51am
/:
^^^ juricidal
5.16.2009 10:03am
Desiderius:
Nick056,

"Desiderius, the "subjective" is a necessary adjunct to "the normative" which is of course at play before the bench."

Care to flesh that out a bit? I would think that the normative (from whose root we get words like "normal" that chafe against the subjective) in and of itself, not to mention the relatively proscribed ambit of normative activity delegated to the judiciary in our system, speaks more to the shared experiences and values of the community, and less to the subjective imagination of the individual, however crucial that imagination is to the future creation of new norms.

That is properly the function (among others) of art, not adjudication.
5.16.2009 11:40am
Arnostocles:

the term's is an attempt to convince people that they are all one "Race", similar to the popular fuzzy headed notion of all human beings being one race, "The Human Race," that one might find amongst college students.


A lot of anthropologists and genetists [e.g. Cavalli-Sforza] believe that the features distinguishing many people are better characterized as "clines," not "races" or "subspecies."


As anyone who has studied Mexican history can see, many of the pioneers of land distribution schemes and socialist movements were Mestizo in origin, like Zapata and Villa, while the oligarchy and politicians in charge up till the present day still look as light-skinned as their conquistador ancestors.


Look at Vicente Fox, of German/Basque descent, or Carlos Slim, of Lebanese descent.

When people of Cuba, we don't think of black people [who are the majority], we think of Galicians - the Castro brothers who have ruled for 50 years.

Bolivia's majority is indigenous people. Evo Morales in Bolivia is the country's first indigenous leader - the FIRST Indian to run the country in 500 years.
5.16.2009 12:12pm
Joseph Slater (mail):
I remember there used to be some Hispanic pro wrestler(s) who would yell "Ariba la raza!" I used to work at a restaurant with a bunch of Hispanic guys, and I would yell that phrase to them whenever I went into the kitchen. I had no idea what it meant, but the younger guys thought it was hilarious and saluted me. The older men muttered under their breath in contempt.

FWIW, the wrestler's character's name was/is Konan. He worked with the WCW and then TNA promotions.
5.16.2009 12:27pm
einhverfr (mail) (www):
Nick056:

It is nothing more than the hope that a "wise Latina woman" with a relevant and "rich" background can employ that background in discovering the best holding with the most persuasive reasoning in a certain set of cases.


I didn't read the context of the remark to make that "certain set of cases" quite expansive. "More often than not" suggests it would include over half of the cases before the court. If she said "sometimes" I would agree with you. Maybe she was just exaggerating. I hope so.
5.16.2009 12:43pm
einhverfr (mail) (www):
Nick:

Changing the meaning of "La Raza" from its actual Spanish meaning, "The Race", to "The Ethnicity" doesn't make it any less bigoted.


Be VERY careful about overly analysing labels in translation. It is not methodologically sound, and it reminds me of all the overly legalistic arguments that surround the true meaning of the Bible, where the presumed correct version is the KJV, and where those arguments are entirely unsupported when one digs into the original Koine/Hebrew texts.
5.16.2009 12:48pm
Sean Smith (mail):
I wonder if anyone can come up with a genuine legal situation where we might agree that being a white male could be an advantage and lead a judge to a better conclusion than a latina (however wise she may be).
5.26.2009 9:53am
Lashika Witherspoon (mail):
Umm.. has it occured to OH, ANYONE,..
that if any caucasian was a member of a organization that was titled ''LA RAZA'' (THE RACE, IN SPANISH) that they would be run out of any consideration for ANY governmental position and never considered for being appointed dog catcher?...
This woman is either a racialist or a racist and needs to be treated like a racialist or a racist.
5.26.2009 9:50pm
Grog (mail):
Lets not forget... while professing all this poor upbringing, she moved up thru the ranks under Reagan, Bush I, Clinton, and Bush II... so, while expousing how her poor upbringing was, it is safe to say that under 3 conservatives she had a good life/career, based on HARD WORK... which, obama does not want people to do. He tells college students to go out and join the community organizers, peace corps, etc... not work hard so you can contribute to society through your hard work.

SOTOMAYOR is just another RACE related selection and she will legislate from the bench, etc... and is racist, La Raza.
5.27.2009 12:48am
STEVE (mail):
Per son, then why was Spain known as Hispanola?
5.27.2009 5:50am

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