Return of the 'Wise Latina': Sotomayor Drops Her Veil of Objectivity

Adam Liptak’s article – "Sotomayor Finds Her Voice Among Justices" – in Wednesday’s New York Times is the latest paean for Justice Sonia Sotomayor’s dissent two weeks ago from a Supreme Court decision upholding a Michigan ballot initiative’s ban on racial preferences in admissions. 

Her dissenting opinion in Schuette v. BAMN, which she summarized from the bench “in emphatic and impassioned tones,” reports Liptak, makes the case that “race matters” in America. In fact, she repeats the phrase a dozen times in her dissent, while citing her experiences growing up Puerto Rican in New York City.

Though clearly coming from the heart, Sotomayor’s dissent falls short on legal reasoning as she struggles to reconcile her embrace of identity group politics with the color blindness suggested by the Constitution’s Equal Protection Clause. In that sense, her dissent is very much like her nomination, where President Obama “present[ed] Sotomayor’s race and gender as credentials in themselves,” in the words of the Boston Globe, while simultaneously denying that she was chosen for any reason other than merit.

Though laudatory, Liptak’s piece is fair, quoting Sotomayor’s critics on and off the Court and featuring the observation of Yale law professor Cristina Rodriguez that the Justice’s “willingness to talk about how biography informs judgments challenges a lot of people’s notions about what the law is supposed to do.” Referring to this deviation from the objective model of judging, Liptak writes approvingly that something has changed since Sotomayor’s statement that “I am a lawyer’s judge. I write very technically.”

The thrust of Liptak’s piece is to celebrate her as “a kind of folk hero” who some call “the people’s justice.” In particular, Liptak salutes Sotomayor for finding her voice on the importance of race five years after she was forced to disavow, at least for confirmation purposes, a race-based theory of judging epitomized by her infamous “wise Latina” statement.

In several speeches before her nomination to the Supreme Court, Sotomayor opined that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male,” adding her “accept[ance] that our experiences as women and people of color affect our decisions [as judges].” Fortunately for Sotomayor, the “wise Latina” quote got a lot more coverage than her speculation that some of the reasons why judges of color “may have different perspectives” might include “basic differences in logic and reasoning” and “inherent physiological or cultural differences.”

Though celebrating the return of the wise Latina, Liptak’s article is about more than race. He writes about Justice Sotomayor finding her voice not just for minorities and “undocumented immigrants,” but also for criminal defendants and the victims of corporations committing human rights abuses abroad.

This broader vision of “the people’s justice” fighting for society’s victims mirrors precisely what Barack Obama said he was looking for in judicial nominees during his first presidential campaign. Obama raised eyebrows with his promise to appoint judges with “the empathy, to recognize what it's like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old” and his similar call for judges who rule from the heart:

[Difficult cases] can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy. … [T]he critical ingredient is supplied by what is in the judge's heart.

Following the negative reaction to those statements, Obama has been careful to use less controversial language. That, combined with Sotomayor’s disavowal of her remarks, signaled that such frank endorsements of race-based and results-oriented judging are no longer advisable, at least by people hoping to be elected or confirmed. Nonetheless, this activist view of a judge’s role retains its seductive appeal as evidenced by Liptak’s article and other admiring descriptions of Justice Sotomayor post-Schuette.

Precisely because of its appeal, it is important to remind ourselves why the Obama-Sotomayor vision of judging is so pernicious. No matter how much you dress it up with feel-good words, it amounts to tipping the scales of justice for groups of people deemed deserving of empathy. That is the antithesis of the rule of law and a violation of the oath that every federal judge takes to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

At the end of the day, Obama’s lofty language about “one's deepest values, one's core concerns, one's broader perspectives… and the depth and breadth of one's empathy” is a license for judges to put their personal policy preferences above the law. Value, perspective, and empathy are all important considerations, but it is the job of our popularly elected legislators to take those factors into account when crafting our laws. It is not the job of judges to serve as super-legislators who second guess those determinations.

Even in its most apolitical form, the Obama-Sotomayor model of judging gives the judiciary unbridled discretion and virtually limitless power. In practice, calls for empathy-based judging are often nothing more than code for preferring judges who will favor the outcomes desired by liberals. If it were otherwise, President Obama’s judicial nominees would include people with empathy for unborn babies and sympathy for poor white kids victimized by race-based admissions policies.

Mr. Levey is a constitutional law attorney and president of the Committee for Justice. Follow him on Twitter at @Curt_Levey.


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