Yet it is not Sotomayor's unremarkable legal talent that makes her a poor choice, but rather her "race-conscious" and "gender-conscious" approach to the law. Sotomayor's predilection to view legal disputes through the prisms of race and gender is illustrated by three quotes published in today's New York Times.
"Whether born from experience or inherent physiological or cultural differences," she said, for jurists who are women and nonwhite, "our gender and national origins may and will make a difference in our judging."
This quote is objectionable, but not overwhelmingly so. One the one hand, it is true enough that all of us -- to a certain degree -- are influenced by our backgrounds. On the other hand, by asserting that her race and gender "will make a difference" in how she decides cases, Sotomayor seems to be suggesting that she is at least to an extent captive to her race and gender. In a sense, then, Sotomayor seems to be validating the bigots who would claim that women and racial minorities cannot do the same job as a white man. So when the next promising Hispanic female judge comes along, it may simply be understood that she too cannot be trusted to decide cases on their merits, but will instead inevitably be influenced by her race and gender. That is unfortunate.
Judge Sotomayor questioned whether achieving impartiality "is possible in all, or even, in most, cases." She added, "And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."
Here, Sotomayor crosses the line. Quote #1 is forgivable in that Sotomayor seemed to be suggesting that some degree of bias is inevitable, but there was no indication that Sotomayor meant that judges should aspire to be biased. In Quote #2, however, Sotomayor asserts not only that bias is inevitable, but that bias is actually a desirable trait in judges. Indeed, she claims that minority judges do a "disservice" to the law and society by attempting to be non-biased. That is astounding.
"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."
Now this is simply David Duke in reverse. Here, Sotomayor seems to be asserting that being Latina ipso facto makes her "reach a better conclusion" than white male judges. That is insane. Can you imagine if Roberts had said that being a white male makes him a better judge than a Hispanic judge? That Sotomayor would even utter such a comment is profoundly disturbing; that she is almost certain to be confirmed to sit on the Supreme Court is a sad commentary on the current state of our society.