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Thu

04

Jun

2009

Sotomayor's Problem isn't being Too Latina; It's Having Hung with White Suits Too Long
Thursday, 04 June 2009 03:48
by Dave Lindorff

I don’t know at this point whether Judge Sonia Sotomayor is a good choice for Supreme Court Justice or a bad one.

She certainly is a lousy judge for writers and other creative people, having ruled (and been overruled by an appellate court and then, when that reversal was upheld, by the US Supreme Court in a case called New York Times Inc. v. Tasini) that the Times and periodical publishers could reprint, without any additional compensation, any freelance works they contracted on the basis that they had a general copyright on each entire issue they publish.

And she appears to have rarely met an insurance company that she didn’t feel was more deserving of court succor than any insured person suing an insurer. In a report in the Philadelphia Inquirer, reporter Joseph N. DiStefano quotes an insurance attorney named Randy Maniloff as saying that in cases involving insurance companies and insurance policyholders “It’s insurers by a landslide.” Such a pro-corporate position would put her in league with the Roberts/Alito/Scalia/Thomas wing of the court, and would be consistant with her pro-corporate stance vis-à-vis writers and artists and copyright law. (In fairness, Sotomayor did rule against an insurance firm and in favor of a policyholder’s family in 2005.)

Having said that Sotomayor shows a disturbing pro-corporate stance in her past rulings, I have to say that the freak-out on the right over Sotomayor’s comments regarding the impact of her being female and Latina on her decisions as a jurist is the height of nonsense and hypocrisy. To watch them frothing, you would think that she was a latter-day William O. Douglas, which is hardly the case.

What Sotomayor said that has the right in a lather was:
“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 made that comment at a lecture in Berkeley in 2001, but it came following this earlier statement:
“Whether born from experience or inherent physiological or cultural differences...our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure....that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise…”
She went on to note:
“Let us not forget that 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.”

The point is, as long as we have an unequal society, in which some people are denied equal treatment because of race or religion or gender, and we clearly have that type of society in America today, the people from those discriminated-against groups are bound to see the world in a different way than do most white males.

But the elite—the white male editors and TV commentators, the white male politicians, and the white male public—don’t see their own decisions as rooted in their white male expereience. They see their experience as being “normal” and “unbiased.” It is, to them, only others who are not “normal” like them who are biased, or or who are carrying some kind of chip on their shoulders.

What Sotomayor was saying at Berkeley was simply a fact of life: as a Latina woman, and hopefully as a women who grew up in a poor, working-class, fatherless family, she is going to view the world differently than the white male and even black male or white female colleagues who currently constitute the members of the US Supreme Court. If this were not so, there would be no need to have women on the court at all, or African Americans.

That is obviously ridiculous.

White upper-class males on the court for a century saw nothing wrong with slavery being inflicted on black people, nor did they see anything wrong with denying the vote to people who didn’t own property. White males on the court for a century and a half saw nothing wrong with women not having the vote. For two centuries they saw nothing wrong with white governments using Jim Crow laws to prevent blacks from voting, either. (Many of them still see nothing wrong with such legal obstructionism.)

There are plenty of reasons to oppose President Barack Obama’s appointment of Sotomayor to the Supreme Court—she is not a particularly profound Constitutional scholar and she has a record of accommodating corporate interests at the expense of individuals—but her acknowledging that being female and Latina may have a positive impact on her judicial decisions is not one of them.

If she is confirmed as a Supreme Court Justice later this year, as appears likely, one can only hope that she will allow her decisions to be informed by that background, and that she will not just become another one of “the boys” on the bench.

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