The Charge: Judge Sonia Sotomayor Made a Racist Comment in a 2001 Speech; One Conservative Blogger’s Verdict: Not Guilty Beyond a Reasonable Doubt

— Richard E. Vatz

As one often involved in discussion of politics and public policy, I have some familiarity with the claim that a quote is taken out of context.

Sometimes a quote is strategically taken so dishonestly out of context that it bears no genuine relationship to the criticism of it. If I say in a speech that “Towson University has the most impressive population of administrators, faculty, students and staff I have ever seen” (true, by the way), but that “there are 4 or 5 terribly incompetent staff members,” it is quoting me out of context and inaccurately to say that “Vatz says there are many ‘terribly incompetent staff members’ at Towson University.”

The charge has been made that Judge Sonia Sotomayor, Supreme Court nominee, made a racist comment in a racist speech at the Berkeley La Raza Law Journal’s Twelfth Annual Symposium on October 26, 2001.

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The American Heritage Dictionary is one of the best places to go if one wants a non-majoritarian definition of a term. That dictionary defines “racist” as “[T]he belief that race accounts for differences in human character or ability and that a particular race is superior to others…Discrimination or prejudice based on race.” Both concepts are relevant here, particularly the second definition which leads to the question, does she support in judicial decisions “discrimination or prejudice based on race.”

What I would find in Judge Sotomayor’s speech is a lack of care of language. She says, for example, that “I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.” Although the use of “prejudices” may be used because it supposedly answers the claim by Judge Miriam Goldman Cedarbaum “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,” it does not appear that Judge Sotomayor believes that generally utilizing “prejudices” based on race is specifically reconcilable with “integrity.”

More telling, when she made her now-infamous 32-word (possible) gaffe, saying “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,” it was to support correctives to situations not experienced by men, such as when “…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” and when “wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.”

In addition Judge Sotomayor qualified her general remark with the following caveat: “I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.”

Thus, one cannot conclude beyond a reasonable doubt that Judge Sotomayor believes “that race accounts for differences in human character or ability and that a particular race is superior to others.”

Let me be precise regarding my own reaction to Judge Sotomayor’s speech: I think she is loose with her language and sometimes contradictory in her thought. I think she should have stayed with her observation that judges from an earlier era – not judges of a different race – misunderstood some of the relevant issues in judicial decisions.

Judge Sonia Sotomayor is too liberal for my taste, but a liberal president won the election. I do not, however, for whatever it’s worth, believe that the case is reasonably made that she is racist or that her views are sufficiently outside the American mainstream, per this speech, to disqualify her for the Supreme Court.

Some Democratic partisans irresponsibly throw around the accusatory “racist” epithet prolifically; one should expect more of conservatives.

Professor Vatz teaches an advanced course in Persuasion at Towson University.

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