Emily, you pull out the critical quote from Sotomayor's speech : "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."
This quote does not go down easy. As Stuart Taylor pointed out last week, what if Samuel Alito had said: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life." We would chuck him over to some Idaho compound, no?
Yes, it's true, Sotomayor is unabashedly embracing affirmative action, in a way you don't even hear much on campuses anymore. In that 2002 speech Sotomayor begins by counting up women and minorities, court by court, and then concluding, "sort of shocking, isn't it?" This is not even the subtle kind of affirmative action that UC-Berkeley (where she was speaking) now practices, but the old-school, bean counting kind.
But beyond that, Taylor was being unfair. Sotomayor was not talking about all cases. She was talking specifically about race and sex discrimination cases. In fact, the presence of female judges does seem to make a difference - not on all cases but on sex discrimination cases. Is this bias? Is it some defiance of logic? It seems perfectly natural to me. It does not apply in all cases, obviously (Clarence Thomas). And Sotomayor was a prosecutor in her past life, not a public defender.
Obama's phrase of today - "common touch" - seems all wrong, too, a little quaint and patronizing. But "empathy" and "curiosity" - two of his other words - seem about right. "Empathy" does not mean you lose your mind in a flood of hormone and tears. "Empathy" is not only available to women and minorities. It just means that sometimes you see things other people might miss, if only because you know what they look like.