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How Judge Sonia Sotomayor misspoke -- again and again

Published June 3, 2009 6:00 pm

This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Now we know. Supreme Court nominee Sonia Sotomayor misspoke in her notorious lecture positing the superior judicial wisdom of a "wise Latina." White House press secretary Robert Gibbs explained, "I think she'd say that her word choice in 2001 was poor." President Barack Obama added, "I'm sure she would have restated it."

But of course. A few innocuous slips of the tongue made it seem that Sotomayor endorsed a racial essentialism, when she really meant to associate herself with race neutrality and impartiality. If only she had chosen a few words more prudently, the entire unfortunate misunderstanding would have been avoided. It could happen to anyone, even in a 4,000-word lecture from a prepared text that is subsequently turned into a law-review article. Poor Sonia!

In the lecture, she used a former colleague, Judge Miriam Cedarbaum, as a foil. Cedarbaum believes, according to Sotomayor, "that judges must transcend their personal sympathies and prejudices." Sotomayor endorsed this view as an aspiration, but added, "I wonder whether achieving that goal is possible in all or even in most cases." Darn! What she meant to say -- if it hadn't gotten so garbled -- is that this aspiration can be achieved, certainly in most and perhaps in all cases.

In the next sentence, she mused, "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." Not again! This sentence was entirely misspoken and shouldn't have been included in the text, since -- as a straight-shooting, just-the-facts judge -- Sotomayor naturally wondered no such thing.

In the very next sentence, she raised the possibility that people of different races "have basic differences in logic and reasoning." Oh, no! In this passage, Sotomayor was badly victimized by misspeaking. An appeals-court judge flirting with the existence of Black Logic, or White Logic, or Latino Logic, is preposterous on its face. Again, in an innocent mishap, she must have poorly chosen her words by choosing to include them.

In a curious coincidence, she misspoke the same way later when she posited different judging by different races and genders might result from "inherent physiological" differences. $%&! Sotomayor clearly couldn't catch a break, with her serial misspeaking obscuring her inspiring vision of a nation of laws that is no respecter of persons.

By now, Sotomayor had so thoroughly misspoken herself that a lesser jurist would have given up in frustration. On this day, it seemed, she wasn't going to be able to get herself across. But Sotomayor is no ordinary judge, and she's not a quitter. One last try.

Sotomayor noted that Justice Sandra Day O'Connor said, "A wise old man and a wise old woman will reach the same conclusion in deciding cases." Sotomayor stipulated that she was "not so sure that I agree with that statement." For once, this was exactly what she meant to say -- except for the "not." Then, she pronounced, "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 this statement seems emphatic and unmistakable, think again. By this point, the evidentiary pattern of Sotomayor's misspeaking was so strong that it's impossible to conclude anything other than that this sentence was the ultimate collection of poorly chosen words muddling her fundamental agreement with the fair-minded sentiment of Sandra Day O'Connor.

The day after Sotomayor's lecture, Judge Richard Paez gave a talk rebutting her in strong terms: "We are required to apply the law fairly. ... And so, although I am a Latino judge and there is no question about that -- I am viewed as a Latino judge -- as I judge cases, I try to judge them fairly. I try to remain faithful to my oath." Oddly enough, that is precisely what Sotomayor meant to say -- if only she hadn't misspoken.