Wednesday, July 8, 2009

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?

Judge Sotomayor, unlike Jimmy the Greek, took an oath to administer the law impartially. Her offense, therefore, is more serious.

Not to put too fine a point on it, but the “inherent physiological … difference” line — expressing a belief that Judge Sotomayor said she does not “abhor” or “discount” — is an assertion one would have expected to hear more from 1960s race-baiters like George Wallace than from somebody nominated for the Supreme Court.

Then there’s the line about “facts that I choose to see as a judge.” It’s a dangerous standard to assert that a judge is allowed to “choose to see” certain facts and not others.

In those same speeches, Judge Sotomayor endorsed the idea that “there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging.” A judge who chooses to see certain facts and ignore others, and who rejects the notion of objectivity, is a judge untethered from her sworn duty to provide impartial justice.

It’s in that light that two of Judge Sotomayor’s positions look most ominous. It is fair to question whether it was the law she was trying to uphold, or her own biases, that led to her decision to deny promotions to the white firefighters in Ricci v. DeStefano. It is likewise questionable whether the law or her biases led her to assert that if a state’s prison population is disproportionately black or Latino, currently imprisoned murderers must be allowed to vote.

No judge who says her gender or ethnicity allows her to choose to see only certain facts and not others should come within a country mile of a lifetime appointment to the Supreme Court.

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