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Contentions

Walking Back

It took several days for the White House to come out with an explanation for the 32 words: “her word choice in 2001 was poor.” Got it?

ABC News reports: “About her use of the word ‘better,’ Gibbs said ‘I think if she had the speech to do all over again I think she’d change that word.’” Well, yeah. Now.

But this was part of a speech and it was duplicated for a law review article. Was it sloppy draftsmanship? Or does she now she realize that it was impolitic? Moreover, isn’t her view of personalized jurisprudence the gravamen of the speech? I think it’s hard to escape the conclusion that those words were entirely consistent with the overall theme of the speech, which also included this passage:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes 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. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor — I did graduate from there and I am not really biased except that they seem to be doing a lot of writing in that area – Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

And the 32 words, remember, are part of this paragraph:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice 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 Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also 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. Second, 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 is a speech quite obviously devoted to identity politics, extolling a message of legal realism which declares the ideal of impartial judging to be bunk. I find it hard to believe the White House thinks this will suffice.

Senators should take Sotomayor through that speech carefully, and take her through other examples of her work as well, to determine what she believed then and what she believes now. Well are all entitled to change our minds, but claiming “poor word choice” for a Supreme Court nominee isn’t going to fly, I suspect. Besides, it’s a rather odd defense for a Supreme Court nominee, isn’t it?



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