Where Sonia Sotomayor Really Stands on Race

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Sotomayor, in her speech, takes a very different view from Ginsburg's and O'Connor's. She sympathizes with "difference feminists" and then says she is not sure she agrees with O'Connor's reputed statement that "a wise old man and a wise old woman reach the same conclusion in deciding cases." Sotomayor concludes, "I would hope that a wise woman with the richness of her experience, would, more often than not, reach a better conclusion" — and then defines "better" as a "more compassionate, and caring conclusion." She also recommends a 1993 article in Judicature, a legal journal, that found that women judges reached different conclusions from men in employment-discrimination cases but not in obscenity or criminal cases. The claim that gender makes a difference in some categories of cases is widely accepted today, but academic theorizing about women's essential differences still remains hotly debated.

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When Sotomayor gave her speech in 2001 at California's Berkeley School of Law, "A Latina Judge's Voice," she added "people of color" to the earlier passages that focused on gender. "I wonder whether by ignoring our differences as women or men of color we do a disservice to the law and society," she wrote in a 2002 article based on the talk. And yet it is hard to portray her speeches as those of someone committed to the view that all women and minority judges have essentially different perspectives than white male judges. "No one person, judge or nominee will speak in a female or people-of-color voice," Sotomayor said in her "wise Latina woman" speech, citing Justice Clarence Thomas as representing a "part but not the whole of the African-American thought on many subjects." In other speeches, she has emphasized that her view of justice requires understanding the different perspectives of the clashing parties rather than imposing her individual perspective. In a public-service dinner at Columbia Law School in 1999, she said, "I am learning that to begin thinking about justice, you must constantly step out of the role you are in and not just listen to your adversaries but learn to respect and appreciate their perspectives." She added that prosecutors, defense attorneys and civil attorneys should appreciate one another's roles and practice in a fair and procedurally correct way.

Sotomayor does not appear to be a crusader for radical change. She has always sought change from within the system rather than fundamentally challenging its premises. As a student at Princeton, she co-chaired a Puerto Rican student organization and filed a complaint with the Equal Employment Opportunity Commission about Princeton's affirmative-action failures, leading to the hiring of the first Hispanic dean of students. But she acted in such a constructive way that William Bowen, then university president, helped select her for the Pyne Prize, the highest honor Princeton bestows on undergraduates. Sotomayor's experiences as an outsider in an Ivy League world seem to have made her pragmatic rather than rigid, leading her to thrive within the Establishment even as she sought to improve it.

Moderate on the Bench
Although Sotomayor's speeches raise legitimate questions about her views on essential race and gender differences, the best evidence that she is no radical multiculturalist in the courtroom is found in her judicial opinions. Here she appears to be an incrementalist rather than a radical of any stripe. In a survey of Sotomayor's 226 majority opinions, Stefanie Lindquist, a law professor at the University of Texas at Austin, found that only 38% could clearly be characterized as liberal, while 49% could clearly be considered conservative. When the criminal cases (in which appellate judges are encouraged by Supreme Court precedent to be relatively pro-prosecution) are taken out of the mix, Sotomayor's record looks about 46% liberal and 36% conservative.

On civil rights cases — including race, gender and immigration appeals — Sotomayor tilts more to the left; Lindquist characterized her majority opinions as 54% liberal and 46% conservative. But when you break out the seven majority opinions involving race, only three rule in favor of the discrimination plaintiffs. It's in the immigration and gender cases that Sotomayor shows clearer signs of liberal leanings: out of 28 majority opinions in immigration cases, Sotomayor decided in favor of the immigrant in 17, or 61%. And in four gender cases, involving sex discrimination and sexual harassment, she decided in favor of the plaintiff all four times.

Read "The Limits of Empathy for Sonia Sotomayor."

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