So far the Senate confirmation hearings for Judge Sonia Sotomayor have been as predictable as a Bob Herbert or Charles Krauthammer column. Democratic members of the Judiciary Committee have tossed her softballs. Republicans, slighting her voluminous work product as a judge, have harped about her now-infamous comment in a lecture that “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.”
Equally predictable, and perhaps necessary, was Sotomayor’s artful recantation of her “wise Latina” gaffe (gaffe as defined by Michael Kinsley: telling the truth). Pressed by Sen. Jeff Sessions of Alabama (Latino population: 2.7 percent), the nominee acknowledged that her “wise Latina” comment was “a rhetorical flourish that fell flat.” It left the misimpression, she said, “that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge.”
Strictly speaking, she’s right on both counts. Her speech didn’t include the word “command.” And she did say in the lecture that she aspired as a judge to “transcend . . . personal sympathies and prejudices.” But the theme of the speech is hard to square with Sotomayor’s statement on Tuesday that judges “should examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome.”
Whoa. If that's what her speech was saying, why bother dwelling on the importance of race or gender if the perspectives they yield are to be abandoned? Actually, in her speech Sotomayor referred to “excellent” studies showing that female judges “vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.” If they don’t, what’s the point of seeking gender diversity?
You don’t have to believe that judges are “robots” who vote only and always on the basis of their life experiences to accept that outcomes sometimes are affected by such factors. I’m going out on a limb here, but maybe, just maybe, Chief Justice John Roberts’ experience representing business clients allows him to appreciate (or overvalue) the employer’s perspective in a job discrimination case.
It’s likely both that experience affects how judges rule in some cases, and that those same judges believe they are transcending their experience and ruling simply on the law. Alas, that reality is too complex to be acknowledged in the partisan forum of a confirmation hearing.