UPDATE: CQ Finds Sotomayor used "wise latina" phrase in numerous speeches!
Remember how Dems tried to dismiss criticism of Sotomayor's speech where she claimed that a judge who was a "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?"
Dems sang their talking points in chorus suggesting that the quote was "taken out of context." President Obama and the White House got into the act by acknowledging that Sotomayor made a poor choice of words but Obama suggested that “I’m sure she would have restated it,” if she had it all to do over again.
Out of context, would say it better if she had it do over again. Remember that.
So how do they explain the following? Slate discovered that Sotomayor gave nearly identical speeches, one in 1994 and the 2001 speech:
1994: "Justice O'Connor has often been cited as saying that 'a wise old man and a wise old woman reach the same conclusion in dueling cases.' I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes the line to Supreme Court Justice Coyle. I am not so sure that I agree with the statement. First, if Professor Martha Minnow is correct, there can never be a universal definition of 'wise.' Second, I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion. What is better? I, like Professor Resnik, hope that better will mean a more compassionate and caring conclusion.The only major difference is that in 2001 she added the word "Latina" to the line which has triggered so much controversy and renamed the speech ‘A Latina Judge’s Voice’ (full text here).
2001: "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 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."
If anything, the 2001 speech is far more offensive than the overtly sexist lines from 1994. We are no longer talking about a simple mistake, or a misinterpretation, but a revealing look into the psyche of someone who clearly has a bias based on gender and ethnicity. As former US Attorney Andrew McCarthy points out, Sotomayor wouldn't be qualified to sit on a jury with that kind of bias let alone be a judge.
The issue at stake here is whether Republicans will be bullied into silence and sit by while Obama introduces a new judicial concept. Will it now be OK to fill seats on the highest court in the land, and all the lower ones, with people who fit an arbitrary political and ideological view instead of demonstrated judicial competence?
Steve Chapman at the Chicago Tribune adds:
Her allies have a point. Anyone who reads the whole speech will indeed find that her comment wasn't as bad as it sounds. It was worse.A few months before Judge Sotomayor made her declaration of the superiority of a "A Latina Judge's Voice" in 2001 Justice Clarence Thomas delivered this landmark address on judicial impartiality which defines clearly what the proper role of a judge, and especially a Supreme Court justice must be:
What is clear from the full text is that her claim to superior insight was not a casual aside or an exercise in devil's advocacy. On the contrary, it fit neatly into her overall argument, which was that the law can only benefit from the experiences and biases that female and minority judges bring with them.
She clearly thinks impartiality is overrated. "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," she declared, a bit dismissively. She doesn't seem to think it's terribly important to try to meet the aspiration.
That's apparent from the context. She said, "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge (Miriam) Cedarbaum, our gender and national origins may and will make a difference in our judging."
In more succinct terms: Sotomayor does not mind, and may even prefer, that the outcomes of cases are affected by the gender and race of the judge (at least when the judge is not white and male).
"Be Not Afraid"Democrats Continue to Warn Republicans to Shut Up on Sotomayor
An Address by Justice Clarence Thomas
American Enterprise Institute, Washington, D.C.
February 13, 2001
...When deciding cases, a judge's race, sex, religion are all irrelevant. A judge must push these factors to one side, in order to render a fair, reasoned judgment on the meaning of the law. A judge must attempt to keep at bay those passions, interests, and emotions that beset every frail human being. A judge is not a legislator, for whom it is entirely appropriate to consider personal and group interests. The ideal of justice is to be blind to such things.
The law is not a matter of purely personal opinion. The law is a distinct, independent discipline, with certain principles and modes of analysis that yield what we can discern to be correct and incorrect answers to certain problems.
When struggling to find the right answer to a case, judges should adopt principles of interpretation and methods of analysis that reduce judicial discretion. Reducing discretion is the key to fostering judicial impartiality. The greater the room for judicial discretion, the greater the temptation to write one's personal opinions into the law. This is especially important at the Supreme Court, where many of the usual limitations on judicial discretion, such as authority from a superior court or stare decisis, either do not exist, or do not exist with the same strength as with other courts. Hence, other doctrines and principles designed to narrow discretion and to bolster impartiality assume greater significance for the Court.
On Thursday, Senate Majority Leader Harry Reid (D-NV) all but declared the confirmation of Sotomayor an open and shut matter. He called Sotomayor "someone whose time has come...I don't know why it should be a fight," Reid said.
Democratic Senate campaign chief Robert Menendez (D-N.J.) took it up a notch further and suggested that the voters will punish any Senator who votes against Sotomayor. Senator Chuck Schumer (D-NY) made a similar threat earlier when he said that those who oppose Sotomayor's confirmation would do so at their "own peril."
Are Senate Republicans Being Bullied or Manipulated by Dem Scare Tactics?
New polling shows that support for Sotomayor is slipping as Americans overwhelmingly express disapproval of the affirmative action/reverse discrimination policies that Sotomayor's nomination represents. So why all the Republicans in the Senate telling folks to tone down their criticism of Sotomayor? Surely this is an issue that is a winner even if we don't succeed in blocking her nomination.
Why should Republicans fear a backlash from an aggressive discussion of Sotomayor's qualifications? Do we need to remind our Senators of the unprincipled demagogic obstruction launched against so many of President Bush's nominees? Apparently we do....
Above we read the sound words of Justice Thomas. Do you recall the circus that his confirmation became as Democrats tried every hysterical tactic in the book to get his nomination derailed? Unfounded charges of sexual harrasment with lurid and obscene stories about pubic hairs on cans of Coca-Cola and references to "long dong silver." There was never any proof beyond a well rehearsed he said, she said with Anita Hill. Justice Thomases sterling career on the bench has been the best refutation of those smears.
Yet despite Clarence Thomases life story which is much more compelling than Sotomayor's, did Democrats in the Senate pay any political price for their shenanigans to block Thomas?
With more recent GOP nominees to the lower courts Dems were quick to play the race card. In 2002 President Bush nominated Judge Charles Pickering to the Fifth Circuit Court of Appeals. Despite a New York Times report showing strong support for Judge Pickering from members of the black community in Pickering’s hometown who “overwhelmingly support his nomination . . . and admire his efforts at racial reconciliation.” Yet Dems accused him of racism anyway.
On the Senate floor, Senator Edward Kennedy (D-MA) referred to President Bush judicial nominees like Hispanic Miguel Estrada and Black Janice Rogers Brown as "Neanderthals." Liberal cartoonists portrayed Rogers Brown in a grossly racist stereotype just as they have Condi Rice and Clarence Thomas.
Democrat special interest groups attacked Estrada because "he is a latino."
Did Senate Democrats who engaged in these tactics pay a price at the polls?
And who can forget how the wife of Justice Alito was brought to tears at his Senate confirmation hearings during a process in which in was insinuated Alito was soft on the mafia because he is Italian?
Did then Senator Obama, who voted to filibuster against Justices Alito and Roberts even though he admitted they were qualified to sit on the Supreme Court pay any price for his vote?
Explaining his vote against Roberts on the Senate floor in 2005, then Senator Obama made it clear that political and philosophical differences were more important than the nominees qualifications. In doing so he proved his worth to the liberal base of the Democrat Party and from there launched his successful bid for the presidency.
The lesson here is simple: Senate Republicans have nothing to lose by a polite but aggressive opposition to Sotomayor. At the very least they can illustrate the profound differences in outlook held by Republicans and Democrats. Polls show that the majority in this country still believe justice should be blind and not politicized as Obama and Sotomayor would have it.
Opposing Sotomayor would also pay a huge dividend to GOP by motivating and energizing the base. There are not enough moderates in the world who would vote GOP because of a lackluster opposition to Sotomayor to make up for the loss in the GOP base.
Finally, consider this: With poll numbers of support for Sotomayor slipping, why do you suppose Democrats are so eager to advise the GOP to go easy on her or else? Shouldn't our elected GOP officials be able to spot that one a mile away by now?