"Inherent Physiological" Differences?

by Pejman Yousefzadeh on July 8, 2009

I keep waiting for someone to slow down the headlong rush to confirm Sonia Sotomayor to the Supreme Court so that some serious questions can be asked concerning her nomination. If this story doesn’t cause us to pause and think about the nomination, nothing will:

A biased judge should not be promoted to a higher court. Yet the Obama administration has not been able to put to rest fears that Supreme Court nominee Sonia Sotomayor might let ethnic grievances sway her decisions on the bench.

That’s exactly what it appears Judge Sotomayor did in the Ricci v. DeStefano case, in which she ruled that white firefighters could be denied promotions they clearly had earned. That’s why it is worth revisiting the Supreme Court nominee’s infamous “wise Latina” speech. The renewed focus on that speech should center on two highly objectionable lines that have not received enough attention.

The most quoted sentence from the speech in question, as published in the spring 2002 issue of Berkeley La Raza Law Journal, is that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life.” That statement alone is troubling. It suggests that ethnicity trumps the facts and the law. She repeated that line, or variations of it, in at least seven other speeches.

However, that sentence, bad as it is, pales in comparison with two others from that speech — each of which she repeated on at least two occasions.

In the Berkeley speech, a 2003 speech at Seton Hall University and a 2002 address at Princeton University, Judge Sotomayor said this: “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [federal district] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging.”

In both the Princeton speech and the Seton Hall speech, she repeated another line, nearly verbatim, from the Berkeley address: “My experiences will affect the facts that I choose to see as a judge.”

The first statement is the more abhorrent. In any other circumstance, any person who asserts that there are “inherent physiological” differences between the races — especially when discussing mental abilities — is automatically shunned from polite society and sometimes fired. If it is a fireable offense for sports and entertainment figures — such as the late Los Angeles Dodger executive Al Campanis and the late oddsmaker Jimmy the Greek — to assert that the races have inherent differences, then why is it OK for a judge to make such a bald assertion?

Here is the Sotomayor speech in question. It gives us all the full context of the judge’s statement. The following context seems to be particularly appropriate to consider:

Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.” I am quoting adjectives that were bandied around famously during the suffragettes’ movement.

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.

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. 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 further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. 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. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father’s visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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.

(Emphasis mine.) The passage is quite clear on Judge Sotomayor’s opinions. She believes that not only a diversity of experiences can lead to differences in judging, but that also, “inherent physiological” differences might play a role, “a possibility [Judge Sotomayor] abhor[s] less or discount[s] less than [her] colleague Judge Cedarbaum.” It is bizarre enough to suggest that different cultural experiences might cause judges to read the language of a statute, or of the Constitution differently. It is utterly wacky to think that “inherent physiological” differences might lead to differences in judicial thought as well.

Senate hearings for Supreme Court nominees are supposed to be dedicated to asking tough questions and demanding honest answers. Tough questions cry out to be asked of Judge Sotomayor on whether she really thinks that “inherent physiological” differences ought to lead judges from different ethnic groups to make different legal determinations.

  • roscopico

    Thank you, Pejman, for the legwork nobody thus far has seen fit to undertake… the “wise latina” statement has become a meme, but the full context is even more troubling.

  • roscopico

    If I might indulge a further thought…
    Perhaps if Robert Bork possessed a whit of the implied physiological superiority of a person of “color” (conceding the premise “white” is the absence of color) he may have fared a bit better in his confirmation.

    Perhaps the significance of “color” is overstated in her argument, and her speech seeks only to point out the plain truism that wisdom is a derivation of what sort of genitalia the nominee presents, (after all, shouldn't one have to prove it for something so important?).

    Just as I lift the tail of a dog pound puppy, we should and must require a SCOTUS nominee to lift their vestments and pee in their socks if standing upright.

  • http://24Ahead.com 24AheadDotCom

    If you want to block her, the best way is to turn public opinion against her. That shouldn't be overly difficult since, in addition to the above and all the rest, she joined not just one but two racial power groups. One group she joined even gave an award to someone who'd proposed genocide against “gringos” years earlier. Instead of standing on street corners waving loopy signs and whining, tea partiers and others should concentrate on getting out the *facts* about her (not made-up things). And, those in the GOP leadership (or their underlings) who aren't willing to work against her nomination should be held accountable for all her actions in case she's confirmed.

  • cbulllitt

    When the hearings begin, more than one Senator should read this quote and then ask if she is familiar with “The Bell Curve.” From there, her non-confirmation should be easily achieved.

  • http://twitter.com/MediaQuire Victoria lynn Weston

    Great article!

  • http://hakomike.blogspot.com hakoMike

    “inherent physiological differences… will make a difference in our judging.” I'm listening to the confirmation hearings now, and I can't get away from this quote. Does she really believe that the mental processes of different racial groups are fundamentally different? That does more than imply that some ethnic/racial groups have superior physiology with regard to mental processes, but that also some must be inferior. Maybe she'd like to assert that all Asians are good at mathematics next.

  • http://hakomike.blogspot.com hakoMike

    “inherent physiological differences… will make a difference in our judging.” I'm listening to the confirmation hearings now, and I can't get away from this quote. Does she really believe that the mental processes of different racial groups are fundamentally different? That does more than imply that some ethnic/racial groups have superior physiology with regard to mental processes, but that also some must be inferior. Maybe she'd like to assert that all Asians are good at mathematics next.

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