This week it was reported that Judge Sotomayor has made several speeches in which she suggested that a "wise Latina woman," or simply a "wise woman," would make different or better decisions as a judge than a "wise man." Does this matter? According to some, this is further evidence that her statement in a 2001 speech that she hoped a "wise Latina" judge would make "better" decisions than a white male judge was not an isolated misstatement or "unscripted" moment, as claimed by the White House.

Sotomayor's supporters claim, however, that these prior speeches show that her 2001 speech was no big deal, as Republicans did not make these remarks an issue when she was nominated to the U.S. Court of Appeals for the Second Circuit. I am not sure I follow the logic of this argument, however, as it seems quite apparent that most Senators apply greater scrutiny to Supreme Court nominations than to those for lower courts. Most devote more time analyzing Supreme Court picks, and apply a higher standard for confirmation. So, for instance, there were Democrats who voted to confirm John Roberts to the D.C. Circuit who opposed his elevation to the Supreme Court, including Joe Biden and Dianne Feinstein. I also suspect many Democrats (and law professors, for that matter) who did not oppose confirming Michael McConnell to the U.S. Court of Appeals for the Tenth Circuit would have opposed his elevation to the Supreme Court. In the latter case, writings and speeches that were not an issue when McConnell was nominated to be an appellate judge would have been an issue in the context of a Supreme Court nomination. This does not mean that these speeches are sufficient grounds for opposing Sotomayor's confirmation, just that I don't see why Senators who failed to raise them before should be estopped from raising it now.

UPDATE: Commenter Barbra writes: "Your puzzlemant [sic] over the logic of the argument is a puzzle. If these comments were not enough to brand her a sexist-racist in 1998, they are not enough to brand her a sexist-racist today." If I thought Judge Sotomayor's comments indicated she was a "sexist-racist," then that would have been as true in 1998 as it is today. However, I do not believe Judge Sotomayor's speech indicates that she is either a sexist or a racist (and I find the repeated accusation, made in comment threads and elsewhere, quite tiresome). As I noted in my first post about the speech, my concern is what her remarks indicate about her conception of the role of the judge, and this is precisely the sort of concern that could well be greater for a potential Supreme Court justice than an appellate judge.