Sotomayor and rhetoric

Brad DeLong raps my knuckles for being cavalier about the sentence talking heads have been endlessly parsing from Sotomayor’s Berkeley speech. Here’s the full paragraph:

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 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 [sic] 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.

Brad does a thorough rhetorical review of the speech and I agree with most of what he said (though his evaluation, in my view, suffers from some grade inflation). And with most of what she said, especially as it was not far from the main point of my post. But the famous sentence is wrong as delivered, no matter what she actually believes, and no matter that I was flip in the original post, for two reasons.

Substantively, I think she would, on reflection, say “Second, there are cases in which a wise Latina woman…” and it makes all the difference. There is no reason to believe that Latina upbringing or an extra X chromosome provide a systematic advantage over any other background or sex for all jurisprudence, or even “more often than not”. That would really be racism, because justice and the law are not especially a distinctive part of being a woman, or growing up in the Bronx, and the things that are, like her beloved morcillas, are not much relevant to judging. But to the degree that judging is collaborative, literally as on upper-level appeals courts where panels of judges sit together, and more diffusely, because judges read each others’ opinions and, I suppose, schmoose in the cloakroom and on the golf course and at law school reunions, a judiciary that has more different kinds of people will decide its cases on the average better than a homogeneous one.

Rhetorically, the sentence is wrong for the reason that keeps editors and political consultants up late going over every word of Obama’s speeches, though it wasn’t an important defect in a speech at a law school by a judge, especially as the speech does not say what the sentence says. It became wrong afterwards, when Sotomayor became a public figure of controversy whose every utterance would be picked over by adversaries for things that could be taken out of context and misused. Welcome to the world of national politics, Judge S, where savage little creatures with an instinct for the capillary scour the forest floor for trivia and cheap shot targets.

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.