Le·gal In·sur·rec·tion

At Sonia Sotomayor's confirmation hearings, Sotomayor was asked by Patrick Leahy (D-VT) to explain her comment 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" (emphasis mine).

As pointed out by John Hinderaker and others, Sotomayor disingenuously contended that she merely was agreeing with a statement by former Justice Sandra Day O'Connor about "wise men" and "wise women" reaching the same conclusion in a case. In fact, as I posted prior to the hearings, in her "wise Latina" comment Sotomayor actually expressed disagreement with O'Connor, and used the "wise Latina" construct to set herself apart from O'Connor. Ruth Marcus of the Washington Post reached this same conclusion at the time:

Sotomayor was deliberately and directly disputing remarks by then-Justice Sandra Day O’Connor that a wise old woman and a wise old man would eventually reach the same conclusion in a case.

Why Sotomayor chose to give an explanation which clearly was not true is baffling. She had plenty of time to come up with an explanation to a question she knew would be asked.

But the explanation actually was worse than that, because Sotomayor's explanation distorted O'Connor's statement to make it seem as if O'Connor shared Sotomayor's views about the impact of gender on judicial decision-making, when in fact the opposite was true.

Few people, it appears, actually have read O'Connor's statement at issue, which is reproduced in more complete form in my prior post, What Sandra Day O'Connor Said. In pertinent part, O'Connor rejected what she called the "new feminism" which sought to assign distinct approaches to male and female judicial decision-making (emphasis mine):

Just when the Court and Congress have adopted a less sanguine view of gender-based classifications, however, the new presence of women in the law has prompted many feminist commentators to ask whether women have made a difference to the profession, whether women have different styles, aptitudes, or liabilities.

Ironically, the move to ask again the question whether women are different merely by virtue of being women recalls the old myths we have struggled to put behind us. Undaunted by the historical resonances, however, more and more writers have suggested that women practice law differently than men. One author has even concluded that my opinions differ in a peculiarly feminine way from those of my colleagues....

This “New Feminism” is interesting, but troubling, precisely because it so nearly echoes the Victorian myth of the “True Woman” that kept women out of law for so long. It is a little chilling to compare these suggestions to Clarence Darrow's assertion that women are too kind and warm-hearted to be shining lights at the bar....

If we are to continue to find ways to repair the existing difference between professional women and men with regard to family responsibilities, however, we must not allow the “New Feminism” complete sway....

Do women judges decide cases differently by virtue of being women? I would echo the answer of my colleague, Justice Jeanne Coyne of the Supreme Court of Oklahoma, who responded that “a wise old man and a wise old woman reach the same conclusion.”

This should be our aspiration: that, whatever our gender or background, we all may become wise-wise through our different struggles and different victories, wise through work and play, profession and family."

Clearly, O'Connor rejected any notion that men and women reach different results as a function of their gender, or that one or the other is better, which is the opposite of what Sotomayor said in her "wise Latina" statement.

In response to Leahy's question, Sotomayor had a chance to give her pre-determined explanation of the "wise Latina" statement. Yet Sotomayor's explanation made no sense, unless one had not read O'Connor's full statement. Sotomayor portrayed O'Connor as holding a view consistent with the "wise Latina" comment as to gender differences (emphasis mine):

I gave a variant of my speech to a variety of different groups, most often to groups of women lawyers or to groups, most particularly, of young Latino lawyers and students.

As my speech made clear in one of the quotes that you reference, I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society.

I was also trying to inspire them to believe that they could become anything they wanted to become, just as I had. The context of the words that I spoke have created a misunderstanding, and I want -- and misunderstanding -- and to give everyone assurances, I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.

What -- the words that I use, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges.

That has to be what she meant, because judges disagree about legal outcomes all of the time -- or I shouldn't say all of the time, at least in close cases they do. Justices on the Supreme Court come to different conclusions. It can't mean that one of them is unwise, despite the fact that some people think that.

So her literal words couldn't have meant what they said. She had to have meant that she was talking about the equal value of the capacity to be fair and impartial.

In response to additional questioning by Jeff Sessions (R-AL), Sotomayor again mischaracterized what Justice O'Connor said (emphasis mine):

I also, as I explained, was using a rhetorical flourish that fell flat. I knew that Justice O'Connor couldn't have meant that if judges reached different conclusions -- legal conclusions -- that one of them wasn't wise. That couldn't have been her meaning, because reasonable judges disagree on legal conclusions in some cases. So I was trying to play on her words. My play was -- fell flat.

It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge. It's clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.

Sotomayor's construct, that O'Connor could not have meant that there were gender differences in judicial decision-making, was double-talk since O'Connor's words could not possibly be construed in such a way. Sotomayor took a clear rejection of the "new feminism" by O'Connor, used those words to portray O'Connor in just the opposite manner, and then purported to salvage O'Connor's words by insisting that O'Connor could not possibly have meant what she said.

The whole explanation was a dodge. Why didn't, and doesn't, Sotomayor simply explain what Sotomayor meant, rather than twisting O'Connor's words to create a convenient foil? Or as they say in the law, a "red herring."

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Related Posts:
Sotomayor's Supporters May Spin Her Out Of A Job
What Sandra Day O'Connor Said
Sotomayor "Meant What She Said and Said What She Meant"

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