After some consideration, I have decided that Sonia Sotomayor's 2001 speech, "A Latina Judge's Voice" deserves more extensive analysis than I gave it in a previous post. I still believe that the speech shows that Sotomayor thinks that judges can often legitimately base decisions in part on their racial or ethnic backgrounds. I especially think that that interpretation is by far the most plausible reading of Sotomayor's statement that she hopes 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."

However, it would be foolish to overlook the fact that many people, including serious commentators such as University of Texas lawprof Frank Cross and Reason's Kerry Howley believe that the relevant part of the speech is actually innocuous. I can't ignore the possibility that the speech is unclear, or that I just got it wrong. At this point, however, I still think that my initial interpretation was largely correct, and in this post I will try to explain why. For convenience, here is the entirety of the paragraph where the "wise Latina woman" sentence occurs:

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.

I. Is Sotomayor's Claim Limited to Discrimination Cases?

Some of my critics, including Cross, argue that this passage merely means that a Latina judge will, on average, do better than white males in deciding discrimination cases (perhaps because of her greater personal experience with discrimination). The first sentence of the next paragraph does in fact state that we should "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." However, it seems unlikely that Sotomayor's claim really is limited to such cases. After all, she made it in explicit response to Justice O'Connor's far more general statement that "a wise old man and wise old woman will reach the same conclusion in deciding cases." If Sotomayor meant to say that O'Connor's argument is correct the vast majority of the time with the exception of discrimination cases, it is strange that she gives no hint of that. Moreover, in an earlier part of the speech, Sotomayor denies that the goal of transcending one's race in judicial decisionmaking "is possible in all or even in most cases." That suggests that she believes her argument to have much broader application than merely to discrimination cases.

Even if Sotomayor's claim really is limited to discrimination claims, it is still deeply problematic. It is wrong to assume that a judge belonging to a group that is often victimized by a particular type of injustice will be generally superior in deciding cases that address it. Are white male judges generally superior in hearing reverse discrimination cases such as the one Sotomayor decided in Ricci v. DeStefano? Are judges who own real estate better qualified to hear takings claims? Perhaps judges who own businesses are the ones best qualified to hear claims asserting that an economic regulation is unconstitutional or otherwise illegal. A judge belonging to a group victimized by a particular type of injustice might be less likely to reject similar claims that have merit. On the other hand, she might also be excessively prone to accept claims that should be rejected or to ignore important interests on the other side of the case. Which effect dominates the other will probably vary from judge to judge and from case to case. In any event, we will likely be better off if judges assess discrimination cases and other claims as objectively as possible, while seeking to minimize the impact of their own personal racial or ethnic backgrounds.

II. Did Sotomayor Merely intend to Recognize the Impact of Judges' Racial Backgrounds on their Decisions, Without Embracing it?

Other critics, including Howley, argue that Sotomayor merely meant to recognize the commmon sense point that judges' decisions are sometime affected by their racial backgrounds, without claiming that this is a good thing. In one part of the speech, Sotomayor does indeed state the following:

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.

However, in the very next sentence Sotomayor said that "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." This suggests that it isn't necessarily a good idea for judges to strive to "transcend . . . personal sympathies and prejudices." In combination with the above-quoted statement about the supposed superiority of Latina judges over white male ones in deciding many cases, it seems that Sotomayor believes that judges not only take account of their racial background in making decisions, but are often justified in doing so. Perhaps Sotomayor also believes that judicial transcendance of personal sympathies and prejudices is a desirable goal; but since in her view it is probably impossible to achieve in a large number of cases, it will often be a "disservice" to pursue it at the expense of denying the special insights that might sometimes be had by relying on those "prejudices" after all. That doesn't mean that Sotomayor believes that a judge's race or gender is a useful resource in all cases or that impartiality is completely worthless. After all, she said that the "wise Latina" judge is likely to do better "more often than not," not that she will have an advantage across the board. However, it's clear that she does believe that race and gender are useful guides to judicial decisionmaking in at least a large number of situations.

In addition, if Sotomayor really did merely mean to say that judges sometimes wrongly take account of their personal background in deciding cases, there would have been no need to dwell on such an obvious point at great length - one that hardly any serious commentator disagrees with. The real question - the one she actually tried to address - is how we should react to this state of affairs. One approach - the one I think best - is to try to appoint judges who will ignore their own racial backgrounds as much as possible and to strive to promote that as a norm for all judges to follow. Sotomayor's approach, by contrast, is to endorse reliance on personal background in at least some cases, and to urge minority judges to offset the "personal sympathies and prejudices" of their white colleagues with their own.

Finally, I think it's telling that hardly any one would defend a similar statement made by a white male judge. As legal columnist Stuart Taylor puts it:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences" [as Sotomayor did later in her speech].

I don't think that Sotomayor is a "racist and a sexist," nor do I think she should be "banished from polite society." However, her statement does show that she believes that judges should often base decisions in part on their personal racial and gender backgrounds. If a white male judge had said something similar, few would deny that such (or something much worse) was the import of his words. Sotomayor's speech should be judged by the same standards.

I would have cut Sotomayor more slack if the statements in question had been off the cuff remarks rather than part of a prepared speech delivered as a keynote address at a conference; the speech was also published in a law journal in 2002, at which point Sotomayor could have removed or clarified any part of her remarks that didn't really reflect her considered views. I would also be willing to ignore the speech if she had repudiated it at any time in the past eight years. I will even give her the benefit of the doubt if she repudiates the more problematic parts of the speech now (perhaps at her confirmation hearings). We have all sometimes made mistaken statements that we admit to be wrong in retrospect. But until that happens, I can't avoid the conclusion that the speech reveals a troubling element of Sotomayor's view of judging.

UPDATE: Frank Cross authorized me to post the following from e-mails he sent me clarifying his position:

I didn't mean the statement was innocuous. Just that it was limited to the discrimination context. I think it is objectionable in that context as well. Though not outrageously so, as I suspect it is a common psychological feeling for anyone that they are right and others wrong . . .

I think she was talking about the discrimination context, I think it's wrong to say that a Latina woman would make a "better" decision than a white male in this context, but I think it is right to think that a panel including diversity would make a better decision in this context.