Changing"Latina"to"White"

JAILers4Justice (J4J)
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Los Angeles, CA June 7, 2009

We are all knowledgeable of Barack Obama's appointment of Judge Sonia Sotomayor to serve on the U.S. Supreme Court and the pending debate in the Senate over her confirmation. Much controversy has been directed at her 2001 speech at U.C. Berkeley. Someone has taken the time to reverse the words of her speech referring to herself as a "Latina" to that of a white person, and Fox News.com has picked up on this which is as follows.

We thought it might prove edifying to substitute the word "white'" for the words Latino/a, Hispanic, Puerto Rican and ‘people of color' in Ms. Sotomayor's oft-cited 2001 speech at the University of California, Berkeley.

I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my WHITE identity, where it came from, and the influence I perceive it has on my presence on the bench.

Who am I? I am a "Newyork-Caucasian." For those of you on the West Coast who do not know what that term means: I am a born and bred New Yorker of WHITE-born parents who came to the states during World War II…

The story of that success is what made me and what makes me the WHITE person that I am. The WHITE side of my identity was forged and closely nurtured by my family through our shared experiences and traditions…

My family showed me by their example how wonderful and vibrant life is and how wonderful and magical it is to have a WHITE soul. They taught me to love being a WHITE person and to love America and value its lesson that great things could be achieved if one works hard for it. But achieving success here is no easy accomplishment for WHITES, and although that struggle did not and does not create a WHITE identity, it does inspire how I live my life…

As of September 20, 1998, of the then 195 circuit court judges only two were… two WHITE women. Of the 641 district court judges only … eleven WHITE women. WHITE-American women comprise only 1% of the judiciary… And no WHITES, male or female, sit on the Fourth, Sixth, Seventh, Eighth, District of Columbia or Federal Circuits.

Sort of shocking, isn't it? This is the year 2002. We have a long way to go. Unfortunately, there are some very deep storm warnings we must keep in mind. In at least the last five years the majority of nominated judges the Senate delayed more than one year before confirming or never confirming were WHITE men or women… These figures demonstrate that there is a real and continuing need for WHITE organizations and community groups throughout the country to exist and to continue their efforts of promoting WHITE women and men in their pursuit for equality in the judicial system…

The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss with you what it all will mean to have more WHITES on the bench…

Yet, we do have WHITES in more significant numbers on the bench and no one can or should ignore pondering what that will mean or not mean in the development of the law…

Now Judge Cedarbaum expresses concern with any analysis of women and presumably against WHITE women on the bench, which begins and presumably ends with the conclusion that women or WHITES are different from men generally. She sees danger in presuming that judging should be gender or anything else based…

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as WHITE people we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as WHITE judges in society in general must address.

I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought…

Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging," I further accept that our experiences as WHITE women affect our decisions. The aspiration to impartiality is just that — it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all WHITES, in all or some circumstances or indeed in any particular case or circumstance, but enough WHITES in enough cases, will make a difference in the process of judging…

The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to 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. As recognized by legal scholars, whatever the reason, not one WHITE woman in any one position, but as a group we will have an effect on the development of the law and on judging.

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 NON-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 WHITE and women…

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 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 WHITE woman with the richness of her experiences would more often than not reach a better conclusion than a NON-WHITE male who hasn't lived that life…

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…

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 WHITE women and WHITE people 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 WHITE heritage…

I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate…

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