News Flash: A Thoughtful Question!

Sonia Sotomayor’s efforts to put her “wise Latina” point in context are more convincing than the talking points the Obama administration previously came up with. She’s not clearing up the internal contradiction between the unobjectionable idea that “life experiences matter” and her hope that being a wise Latina would lead “more often than not” to “better conclusions.” But Sotomayor did explain this morning that she gave that speech “most often to groups of women lawyers or most particularly young Latino lawyers and students. As my speech made clear … I was trying to inspire them to believe that their life experiences would enrich the legal system.” In response this afternoon to Sen. Jon Kyl—who gave her speech a remarkably fair reading—she added that she often ended with the words, “I hope someday you’re sitting on the bench with me.”

Monica Youn has pointed out that black and Hispanic and Asian heavyweights often get tangled up in identity politics because as “minority role models,” they “are regularly asked to put on the public record—at lunches, award ceremonies, community events—lengthy statements of their views on America’s most explosive topic: race.” White men aren’t asked to explain how being white and male affects them as judges or leaders, so there’s no rope to hang them with.

Meanwhile, when she named Benjamin Cardozo as her favorite justice, Sotomayor offered a clue that backs up your interpretation, John, of her approach to judging. Cardozo usually gets reduced to one fact—he was Jewish—and one debate: Was he Latino? But Cardozo (who succeeded Oliver Wendell Holmes and was appointed by Herbert Hoover) also represents an approach to judging that occupies a useful middle ground between what we might call abstract law and empathetic law. Cardozo argued for what he called “sociological jurisprudence,” by which he meant law “guided by its purpose and function rather than as purely conceptual or ‘formal,’ ” according to my copy of The Oxford Companion to the Supreme Court of the United States.

More concretely speaking, Cardozo helped pull the court back from the brink of killing off the entire New Deal, in the name of laissez-faire economics, by writing two decisions in which the justices upheld the power of Congress to enact the Social Security Act. So he also stands for deferring to other branches of government. And in his very first opinion for the court in 1932, Cardozo wrote an opinion in a 5-4 decision in which the court ruled that Texas couldn’t let its state political parties exclude black voters from primaries.