Does Sonia Sotomayor really believe wise Latina women are better jurists?

Women writing about politics, etc.
July 13 2009 1:13 PM

White Men Can't Judge?

Why Sonia Sotomayor might really believe that Latina women make better judges.

Sonia Sotomayor.
Supreme Court nominee Sonia Sotomayor

For a few days there, it looked as if all the Sturm und Drang over Judge Sonia Sotomayor's "wise Latina woman" comment was going to fade away. Speaking at Berkeley's law school in 2001 at a conference about race and gender, she said, "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." Thirty-two words that launched a thousand tantrums.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The talk-radio crowd had mostly backed away from charges that Sotomayor was a racist or "reverse-racist." The White House was claiming the speech was a one-off. Also that Sotomayor's "word choice in 2001 was poor" and that, as President Obama told NBC's Brian Williams, given the chance, "I'm sure she would have restated it."

But then we learned late last week that Judge Sotomayor chose to use those or similar words more than once; indeed, by one count, seven times. Suddenly Sotomayor's defenders went dark. For all of the efforts to justify and rationalize and contextualize her 32 words, their repetition over the years sure sounds like a blanket claim that Latinas make better judges than white guys. And that's kind of a big deal for liberals who purport to believe that race and gender don't generally make one "better" at things.

As my colleague John Dickerson noted, the word better, repeated on various occasions, forces Sotomayor's defenders to grapple with a question they plainly don't want to think about: "Does she think she's better positioned than a white male judge would be in hearing cases of sex and racial discrimination—or even other kinds of cases as well?"

This conversation might have generated less heat if Justice Ruth Bader Ginsburg had not blown on the embers by offering up her own ambiguous claims of female "betterness" in certain cases. In the wake of a maddeningly clueless oral argument about a 13-year-old girl who was strip-searched, Ginsburg expressed frustration in an interview with Joan Biskupic of USA Today: "They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

Ginsburg—who has only in recent years come to talk openly about how gender has influenced her legal views—added: "[T]here are perceptions that we have because we are women. It's a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive."

So what are Sotomayor and Ginsburg really talking about when they claim that white male judges don't always get it, and does saying that women are "better" on race or gender make them reverse racists and sexists? We know what the studies about judging say, but what does the relevant social science say?

Reader Patrick St. John recently brought to my attention research that describes a phenomenon called "imaginative identification." The gist of it is that in order to get ahead in the world, you learn to see life through the eyes of those who have already succeeded. According to at least some anthropologists, women have had to get awfully good at understanding what it would be like to be a man. Men, on the other hand, are rarely forced to think about life in a woman's Manolos.

Anthropologist David Graeber makes this precise point in an essay about women and imaginative identification. He argues, for instance, that women imagine life as a man every day of their lives. As he explains it:

A constant staple of 1950s situation comedies, in America, were jokes about the impossibility of understanding women. The jokes of course were always told by men. Women's logic was always being treated as alien and incomprehensible. One never had the impression, on the other hand, that women had much trouble understanding the men. That's because the women had no choice but to understand men.

Graeber continues:

Faced with the prospect of even trying to imagine a women's perspective, many recoil in horror. In the US, one popular trick among High School creative writing teachers is to assign students to write an essay imagining that they were to switch genders, and describe what it would be like to live for one day as a member of the opposite sex. The results are almost always exactly the same: all the girls in class write long and detailed essays demonstrating that they have spent a great deal of time thinking about such questions; roughly half the boys refuse to write the essay entirely. Almost invariably they express profound resentment about having to imagine what it might be like to be a woman.

Now I am no social scientist, and this argument may be riddled with empirical holes. But it strikes me as intuitively obvious that in order to succeed in a white man's world, women must learn to see both sides in ways that men do not. If that is true, it just might make them "better" judges, at least in some circumstances. I don't know whether Judge Sotomayor was trying, albeit rather artlessly, to make some version of that argument in her speeches about the relative wisdom of Latina woman. But if I could ask her just one question at her confirmation hearing about that Berkeley speech, that would be it.