The Futility of “Colorblindness” (Continued): Criticism of Statement of Judge Sonia Sotomayor Studiously Ignores Racial Reality in the United States

It is interesting to listen to the criticisms of comments made by Judge Sonia Sotomayor for the Judge Carlos G. Olmos Memorial Lecture at a University of California, Berkeley, symposium (titled, “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation”). At the root of the condemnation is a belief that everybody (regardless of race or other difference) is equal under law and therefore everybody has the same status in the society. I reassert that people are indeed equally human, but social power is not equally distributed.

United States (population: 281,421,906 (2000 Census)

Race Percentage of population Number
White 75.1% 211,460,626
Black 12.3 34,658,190
Native American 0.9 2,475,956
Asian 3.6 10,242,998

Critics of Judge Sotomayor’s sentence in the 2001 speech are that if a White person said the same thing, it would not be celebrated but reviled.

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.

However, considering the racial reality in the United States, the statement of the critics rings hollow when one recognizes the tremendous power the White race possesses in the United States.

The sentence in Judge Sotomayor’s  lecture was written in the part of the speech responding to an argument of Judge Miriam Cederbaum in which Judge Cederbaum stated that judges should rise above their identity while rendering judgment on cases. In another statement, attributed to former Supreme Court Justice Sandra Day O’Connor, Judge Sotomayor noted that it was mentioned that a wise old man and an  wise old woman would reach the same conclusion in deciding cases. Judge Sotomayor disagreed stating that there is not a universal definition of wise and that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a [wise (?)] white male who hasn’t lived that life.” Moreover, Judge Sotomayor recognized that people with different backgrounds can understand others outside of their group; however, this understanding requires a person to devote time and effort to the task (which the person may not want to do) (another writer has recognized this argument in Judge Sotomayor’s speech).

Let us not forget that wise men like Oliver Wendell Holmes and Justice 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.”

In evaluating Judge Sotomayor’s speech, the demographic reality of the United States must be recognized:  Whites are at the apex of the social pyramid and are the primary population in the US. Nothing Judge Sotomayor said disturbs this reality.

Lawyer demographics

Race 1990 2000
White 92.6% 88.8%
Black 3.3 4.2
Hispanic 2.5 3.4
Asian Pacific American 1.4 2.2
Native American 0.2 0.2
Native Hawaiian or Pacific Islander .04
Two or more races 1.2

Post Script

Here is a link for the full text of Judge Sonia Sotomayor’s  speech at U. C. Berkeley.