[Ilya Somin, May 26, 2009 at 10:02am] Trackbacks
The Sotomayor Pick:
I am not yet sure what position to take on President Obama's selection of Sonia Sotomayor. My general sense is that she is very liberal, and thus likely to take what I consider to be mistaken positions on many major constitutional law issues. I am also not favorably impressed with her notorious statement 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." Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins. Stuart Taylor's comments on Sotomayor's speech are telling:
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."
I may have been wrong in suggesting that Alito's preappointment record was "far" more impressive than Sotomayor's. But I still do think that he had a significant edge. That said, I reiterate my view that Sotomayor's credentials are good enough that she should not be rejected on qualifications grounds. The real objection to her is based on judicial philosophy.
UPDATE #2: It should be noted that Sotomayor put "I would hope that" immediately prior to her statement that a "wise Latina" judge would generally make better decisions than a white male one. I don't think that the "I would hope" materially changes anything in a context where it's pretty clear that she thinks that the hope is justified. After all, the statement comes in a paragraph criticizing Justice Sandra Day O'Connor's reputed view that "a wise old man and wise old woman will reach the same conclusion in deciding cases." Sotomayor's comment would not be a meaningful criticism of O'Connor's unless Sotomayor thought that the wise Latina judge really was likely to do better than a white male "more often than not."
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