Will baselessly claims Sotomayor "embraces ... idea of categorical representation"

In his May 27 Washington Post column, George Will baselessly claimed that Supreme Court nominee Judge Sonia Sotomayor "embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity." Will made this assertion after noting that, in a 2001 speech, Sotomayor said, "I would hope 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 who hasn't lived that life." In fact, in that speech -- almost immediately after the part Will quoted -- Sotomayor stated that she "believe[s] that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable."

As Media Matters for America has noted, Fox News host Megyn Kelly, among others, misrepresented Sotomayor's "wise Latina" comment, claiming she suggested "that Latina judges are obviously better than white male judges." In fact, Sotomayor was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases.

From Sotomayor's 2001 speech, published in 2002 in the Berkeley La Raza Law Journal:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

From Will's May 27 Washington Post column:

[National Journal columnist Stuart] Taylor has also noted this from a Sotomayor speech to a Hispanic group: "I would hope 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 who hasn't lived that life." Says Taylor, "Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: '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' -- and had proceeded to speak of 'inherent physiological or cultural differences.' "

Her ethnicity aside, Sotomayor is a conventional choice. The court will remain composed entirely of former appellate court judges. And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity.