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Monday, June 1, 2009

What Sandra Day O'Connor Said

In my post yesterday, I noted that Washington Post columnist Ruth Marcus wasn't "buying" the Obama administration spin that Sonia Sotomayor made a "poor" choice of words or misspoke in her speech in 2001 when Sotomayor said “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.”

Among Marcus' reasons for believing that Sotomoyor "meant what she said and said what she meant" was that 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."

To follow up on Marcus' point, here is the language used by Justice O'Connor to which Sotomayor was responding. The differences in approach between O'Connor and Sotomayor are quite startling. O'Connor explicitly rejected the "new feminist" approach which appears to be advocated by Sotomayor.

The language is from a 1991 N.Y.U. Law Review article by O'Connor which appears at 66 N.Y.U. L. Rev. 1546 (sorry, can't find an internet link for it, but you can access it from Westlaw or Lexis)(italics 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.

The gender differences currently cited are surprisingly similar to stereotypes from years past. Women attorneys are more likely to seek to mediate disputes than litigate them. Women attorneys are more likely to focus on resolving a client's problem than on vindicating a position. Women attorneys are more likely to sacrifice career advancement for family obligations. Women attorneys are more concerned with public service or fostering community than with individual achievement. Women judges are more likely to emphasize context and deemphasize general principles. Women judges are more compassionate. And so forth.

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....

I would hope that your generation of attorneys will find new ways to balance family and professional responsibilities between men and women, recognizing gender differences in a way that promotes equality and frees both women and men from traditional role limitations. You must reopen the velvet curtain between work and home that was drawn closed in the Victorian era. Not only women, but men too, have missed out through the division of work and home. As more women enjoy the challenges of a legal career, more men have blessings to garner from taking extra time to nurture and teach their children.

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. For example, asking whether women attorneys speak with a “different voice” than men do is a question that is both dangerous and unanswerable. It again sets up the polarity between the feminine virtues of homemaking and the masculine virtues of breadwinning. It threatens, indeed, to establish new categories of “women's work” to which women are confined and from which men are excluded.

Instead, my sense is that as women continue to take on a full role in the professions, learning from those professional experiences, as from their experiences as homemakers, the virtues derived from both kinds of learning will meld. The “different voices” will teach each other. I myself have been thankful for the opportunity to experience a rich and fulfilling career as well as a close and supportive family life. I know the lessons I have learned in each have aided me in the other. As a result, I can revel both in the growth of my granddaughter and in the legal subtleties of the free exercise clause.

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." [footnotes omitted]

Related Posts:
Sotomayor "Meant What She Said and Said What She Meant"
Prominent Constitutional Scholar Warns Of "Stealth Nominee"
Sotomayor's Damned Statistics
Those Other "Unfortunate" Words

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  1. Would it not be reasonable to ask Judge Sotomayor to poduce an intellectually honest logical demonstration of the falsity of her assertion? If she can't or won't, that should tell us something of where she actually stands.

  2. What is really important is that O'Connor was right, as anyone with any experience with women lawyers, bankers ad executives of all kinds can testify. Even more, how does Sotomayor's Latin heritage affect her decisions? If she were correct, her decisions and those of Miguel Estrada would bear some Latin-based resemblance.

    It's a shame that such manifestly wrong nonsense has so many followers in the academey and elsewhere.

  3. Of course, a wise old woman would have gone through menopause, so she's basically functioning with male hormones. Maybe that's why she's reaching a wise decision. Ann Coulter joking around said that it was a pity women got the vote, because if they didn't vote, conservatives would always be in office. In my experience, women are less rational, including myself.

  4. Thanks so much for posting O'Connor's original article- that was really interesting! O'Connor wasn't that great of a judge, by the way. She was the swing judge because she was weak.

  5. btw, doesn't all this mean that Soto is a terrible researcher, too. her quote says she isn't sure O'Connor said it, but if this is from an article written by her, then there really is no doubt.

    But yes, 100% what O'Connor said. No better refutation could be imagined.

  6. Consider this ...

    First, we have Sotomayor's provocative statement:

    "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."

    She is passing what she considers to be a fact that her identity affects her legal decisions. Whether that identity is along race, ethnicity, gender, or age is irrelevant. The point is that she recognizes there is a hue applied to her legal decisions as a result of her collective experiences, i.e. her identity.

    Second, everyone has an identity. I state this as fact.

    What we're left with is the very subjective - and what I consider to be offensive - word "better". I won't call it racist as many have, but it certainly betrays a prejudice on Sotomayor's part. For my part, it sounds arrogant and, frankly, there's only so much you-haven't-walked-a-mile-in-my-shoes I can take. Especially from someone who attended Princeton and Yale.

    Nevertheless, the offensive insinuation that her experiences somehow create a superior decision-making ability within her is ultimately just an opinion. I don't doubt that it would cause her to arrive at different legal decisions, but I don't doubt that other judges arrive at identity-influenced decisions either. (I say different, she says better – two sides of the same coin.) In other words, there is nothing going on here that isn't already being done.

    While I'm uncomfortable with her "better" talk, I'm genuinely troubled that she thinks policy is made in the U.S. Courts of Appeals. A recent NY Times article published the following:

    This month, for example, a video surfaced of Judge Sotomayor asserting in 2005 that a "court of appeals is where policy is made." She then immediately adds: "And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know."

    Talk like that is fine for anybody other than a judge. The problem, of course, is that she is a judge and she is in the running for the highest court in the land.

    I don’t think Sotomayor should be a Supreme Court Justice because I don’t think interpreting the law is the extent of her ambitions. However, her admission that her legal decisions were/are/would be affected by her identity is less of a concern to me, regardless of how inelegantly she chooses to express herself.