As the Sotomayor hearings proceed, I thought I would turn again to the issues raised by the Judge's oft-cited "wise Latina" speech and similar remarks suggesting that there may be a connection between judicial decision making and the judge's ethnicity and background.
One common approach is to wonder whether this is "racist." Shortly after the nomination was announced, I did a segment with Joy Cardin on Wisconsin Republican Radio. She seemed perplexed that I refused to assume the "racism" position, playing a clip of Tom Tancredo making that charge as if it to tell me that I wasn't a team player.
But I think it is unfair to say that she was making a claim for some form of racial superiority.
Another common approach is to say that she was simply suggesting that judges need to be aware of the biases that arise from their backgrounds so that they can check them and that a panel consisting of persons with different backgrounds will be more likely to, collectively, identify and deal with these biases.
I think that Judge Sotomayor almost certainly believes this and I agree that there is a great deal of truth in it, although I may be less likely to believe that gender or ethnicity implies common histories and assumptions.
The reason that the debate has not - and should not - end with the second approach is that it is - literally - not what she said, both in the La Raza article and on other occasions.
Although it seems reasonable to explore these statements during the hearings, I am not confident that it will be done by the Senators in an incisive way or that Judge Sotomayor will depart from her talking points. What's happened so far this morning confirms that.
I would suggest a third meaning - or group of meanings. Judge Sotomayor may have been saying something like a juridical version of the concept of the epistemological privilege of the poor advanced by liberation theologians. The idea is that the oppressed have a special insight into the nature of and reasons for their oppression. John Yoder, for example, writes that if you see things from below, you will see them as God does.
Of course, Judge Sotomayor was making no theological claim, but she may have been saying that, given her understanding of the nature of our society, the perspective "from below" may be more accurate.
A "thinner" variation of this view might be something like John Hart Ely's argument for a juridical hermeneutic that concerns itself with protection of those who may be less able to protect themselves in the political process.
For a variety of reasons, I disagree with both variations on this view, but I am not unsympathetic with its underlying rationale and don't think it's fair to call it racist. Perhaps it is not at all what Judge Sotomayor had in mind. Still, I think that the extent to which a judge believes and is informed by the assumptions that inform it and its implications for judicial decision making is fair game.
Cross posted at Marquette University Faculty Blog