In May 27 articles about the politics surrounding Judge Sonia Sotomayor's Supreme Court nomination, both the Politico and The Washington Post omitted the context of her 2001 remark 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.” In fact, when Sotomayor made that statement, she was specifically discussing the importance of judicial diversity in determining “race and sex discrimination cases.”

Suggesting that Sotomayor's comments contradict President Obama's stated distaste for “identity politics,” the Politico reported that, in 2001, Sotomayor said “that 'a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion' than a 'white male' judge.” The Post reported that "[l]eading conservatives" are targeting the 2001 speech “in which she said a Latina would often 'reach a better conclusion than a white male who hasn't lived that life.' ” The Post also reported that “White House officials argued that the comments in the speeches were taken out of context,” but did not explain or provide that context.

As Media Matters for America has noted, Fox News host Megyn Kelly, among others, claimed that in that 2001 speech, Sotomayor suggested “that Latina judges are obviously better than white male judges.”

In fact, contrary to the suggestion that Sotomayor was commenting on the general judicial ability of Latinas and white men, Sotomayor was talking specifically about “race and sex discrimination cases.” From Sotomayor's speech, delivered at the University of California-Berkeley School of Law and published in 2002 in the Berkeley La Raza Law Journal:

In our private conversations, Judge [Miriam] 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 [Ruth Bader] 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 [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.

Moreover, as Media Matters has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him” and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

From the May 27 Politico article:

But the same reason that makes the nomination so politically powerful -- the new president's strengthened connection with Hispanics and women -- also makes it risky in some parts of the country and for some Democrats facing tough elections in 2010. The unmistakable element of raw identity politics is one that Obama explicitly and implicitly disavowed during his campaign for president, and it runs counter to the approach the party has employed in building its House and Senate majorities.

Where Obama during his campaign described “identity politics” as “an enormous distraction,” Sotomayor has at times been blunt in her belief in the profound importance of racial identity.

Sotomayor told a California audience in 2001 that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion” than a “white male” judge.

“In the campaign, Barack Obama was very careful to avoid identity politics, and that's one reason he won. Now President Obama is playing hardball identity politics,” said Alex Castellanos, a Republican political consultant. “The old Democratic Party is making a big comeback -- that's the party of huge reckless irresponsible spending and identity politics.”

From the May 27 Washington Post article:

Senate Republicans responded with restraint to the announcement yesterday, and their largely muted statements stood in sharp contrast to the fractious partisanship that has defined court battles in recent decades. Leading conservatives outside the Senate, however, did not hold back, targeting a pair of speeches in which Sotomayor said appellate courts are where “policy is made” and another in which she said a Latina would often “reach a better conclusion than a white male who hasn't lived that life.”

Critics also targeted her support for affirmative action, with Rush Limbaugh calling her a “reverse racist” in his syndicated radio program, citing a case in which she ruled against a group of white firefighters who claimed discrimination in hiring practices.

White House officials argued that the comments in the speeches were taken out of context, and they said that the firefighters case was an example of Sotomayor accepting established precedent, something they said conservatives should applaud. Senate Democrats, meanwhile, who are on the verge of controlling a filibuster-proof 60-vote majority in the Senate, warned Republicans of the dangers of pushing too hard against Obama's first court pick.