Wash. Times falsely claims Sotomayor "assert[ed] that there are 'inherent physiological' differences between the races"

››› ››› DIANNA PARKER

The Washington Times claimed that Supreme Court nominee Sonia Sotomayor "assert[ed]" in three speeches "that there are 'inherent physiological' differences between the races." In fact, Sotomayor made no such claim.

In a July 8 editorial, The Washington Times claimed that Supreme Court nominee Sonia Sotomayor "assert[ed]" in three speeches "that there are 'inherent physiological' differences between the races" and suggested her comments should disqualify her from serving on the Court. In fact, as the quote the Times provided clearly demonstrates, Sotomayor made no such claim. Rather, in a 2001 speech at the University of California-Berkeley School of Law, a 2002 speech at Princeton University, and a 2003 speech at Seton Hall University, Sotomayor repeated variations of the following statement: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [federal district] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging."

From Sotomayor's Berkeley speech:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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.

From Sotomayor's Seton Hall speech:

In private discussions with me on the topic of differences based on gender in judging, Judge Cedarbaum has pointed out to me that the seminal decisions in race and sex discrimination have come from Supreme Courts composed exclusively of white males. I agree that this is significant except I choose to emphasize that the people who argued the cases before the Supreme Court which changed the legal landscape were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Robert Carter and Judge Constance Baker Motley from my court and the first black women appointed to the federal bench and others who were involved in the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the court that equality of work required equality in the terms and conditions of employment. 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 make and will make a difference in our judging.

Justice O'Connor has often been cited as saying that "a wise old man and a wise old woman 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 the line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, if Professor Martha Minnow is correct, 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.

From Sotomayor's Princeton speech:

In private discussions with me on the topic of differences based on gender in judging, Judge Cedarbaum has pointed out to me that the seminal decisions in race and sex discrimination have come from Supreme Courts composed exclusively of white males. I agree that this is significant except I choose to emphasize that the people who argued the cases before the Supreme Court which changed the legal landscape were largely people of color and women.

I recall that Justice Thurgood Marshall, Judge Constance Baker Motley from my court and the first black women appointed to the federal bench and others of the then-NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the court that equality of work required equality in the terms and conditions of employment.

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 make and will make a difference in our judging. Justice O'Connor has often been cited as saying that "a wise old man and a wise old woman 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 the line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement.

From the July 8 Washington Times editorial:

In the Berkeley speech, a 2003 speech at Seton Hall University and a 2002 address at Princeton University, Judge Sotomayor said this: "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [federal district] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging."

In both the Princeton speech and the Seton Hall speech, she repeated another line, nearly verbatim, from the Berkeley address: "My experiences will affect the facts that I choose to see as a judge."

The first statement is the more abhorrent. In any other circumstance, any person who asserts that there are "inherent physiological" differences between the races -- especially when discussing mental abilities -- is automatically shunned from polite society and sometimes fired. If it is a fireable offense for sports and entertainment figures -- such as the late Los Angeles Dodger executive Al Campanis and the late oddsmaker Jimmy the Greek -- to assert that the races have inherent differences, then why is it OK for a judge to make such a bald assertion?

Judge Sotomayor, unlike Jimmy the Greek, took an oath to administer the law impartially. Her offense, therefore, is more serious.

Not to put too fine a point on it, but the "inherent physiological ... difference" line -- expressing a belief that Judge Sotomayor said she does not "abhor" or "discount" -- is an assertion one would have expected to hear more from 1960s race-baiters like George Wallace than from somebody nominated for the Supreme Court.

Posted In
Government, Nominations & Appointments
Network/Outlet
The Washington Times
Stories/Interests
Supreme Court Nominations, Sotomayor Nomination
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