Wednesday, June 17, 2009

A Latina judge's salad days -- May 28, 2009 column


President Barack Obama’s choice of Sonia Sotomayor for the Supreme Court illuminates a cultural divide in how Americans see their country in the 21st Century. Is it – and should it be -- a melting pot or a salad bowl?

In earlier centuries, Americans embraced the melting pot in which immigrants assimilated and shed their ethnic uniqueness. The salad bowl theory prizes diversity and multiculturalism and has led to wider use of Spanish and other languages besides English in daily life.

The melting pot-salad bowl divide affects how people react to Sotomayor and her comment about a wise Latina making better decisions than a white man. Her 2001 lecture at Berkeley was titled “A Latina Judge’s Voice.” In it, she talked about the ``tension between `the melting pot and the salad bowl.’”

“America has a deeply confused image of itself that is in perpetual tension,” she said.

“We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore(s) these very differences that in other contexts we laud,” she said. The speech was published in the Berkeley La Raza Law Journal in 2002.

Sotomayor questions whether even judges can set aside their past experiences and be entirely impartial.

“Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that – it’s an aspiration because it denies the fact that we are by our experience making different choices than others,” she said.

Critics say such comments show Sotomayor lacks the proper judicial temperament. Barring more explosive news, though, she’s likely to be confirmed. Court-watchers say that her presence on the court replacing Justice David Souter is unlikely to change the typical 5-4 voting patterns.

Obama, no stranger to the power of the multicultural personal story, has wisely avoided choosing either the melting pot or the salad bowl. He speaks about his Muslim, Christian, Kenyan and Kansan heritage without indicating which might be superior.

He made Sotomayor’s multiculturalism a key factor in her selection, saying he looked for someone with more than a mastery of the law and a belief the judge’s proper role is to interpret the law. He touted Sotomayor’s American dream saga: daughter of Puerto Rican parents who grew up in South Bronx public housing projects and worked hard to succeed at Princeton and Yale.

At Berkeley, Sotomayor was playing to her largely Latino audience when she talked about “my Latina identity and the influence I perceive it has on my presence on the bench.” She cited her love of such Latin culinary favorites as pigs’ feet with brains and her fondness for Spanish love songs and entertainment.

It was in that context that she disagreed with then-Justice Sandra Day O’Connor’s view that a wise old woman and a wise old man in time would reach the same conclusions in deciding cases.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life,” Sotomayor said.

Her critics argue that Sotomayor’s feelings as a Latina should play no part in her judicial philosophy, just as gender supposedly makes no difference.

And yet, Justice Ruth Bader Ginsburg told the Associated Press in 2007, a year after O’Connor retired, that she and O’Connor “have had the experience of growing up women and we have certain sensitivities that our male colleagues lack.”

Last month, when the court took up the case of a 13-year-old girl who was strip-searched at school, Ginsburg said of her colleagues, “They have never been a 13-year-old girl …I didn’t think that my colleagues, some of them, quite understood,” Joan Biscupic of USA Today reported.

Sotomayor will have the opportunity during her confirmation hearings to talk more about the “wise Latina” and other remarks.

It’s worth noting that at Berkeley Sotomayor recognized that white male justices had done much to end discrimination.

“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 for her, “Personal experiences affect the facts that judges choose to see…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.”

Salad, anyone?

(Marsha Mercer is an independent columnist writing from Washington. You can contact her at

© 2009 Marsha Mercer. All rights reserved.

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