The quote that has Gingrich and Tancredo declaring the new SCOTUS nominee as a racist deserves to be read in full context. I should say I take the position that Sotomayor attaches to Judge Cedarbaum, but I don't think the view that identity matters in jurisprudence is inherently racist. I tend to think that what animates her and Obama is a Justice who might at one point in his or her life felt powerless in the face of the judicial system or the police or government or a big corporation. The memory of that marginalization can help a judge temper his or her view of the law with an understanding that, in the end, real human beings are involved. Justice without mercy can be cruel.
There's a legitimate debate here - and we should have it. But we should have it in context and with nuance (ha!) if we possibly can:
“Judge Cedarbaum... 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 women or men of color we do a disservice both to the law and society.
Whatever the reasons... 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....
Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just thatit's an aspiration because it denies the fact that we are by our experiences making different choices than others....
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... not so sure that I agree with the statement. First... 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.”
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