The White House is doing an almost desperate job of putting words in the mouth of Justice-designate Sotomayor today. The President's spokesman told the press that the judge admitted to making a poor word choice in her 2001 speech, excerpts from which I posted yesterday. The spokesman had only second-hand knowledge of her reflections, however, since he had only spoken to friends who claimed to have heard her latest views on the subject. I doubt such an apology, if authentic, will placate critics of her or her speech, since the controversial sentence about the "wise Latina woman" is not exactly at odds with the rest of the text.
The President himself conveyed the judge's reputed regrets while appearing to endorse her position that life experience enhances constitutional jurisprudence. That's even more unlikely to appease those people who take such talk as heresy against the justice-is-blind principle. But if this is going to be controversial we ought to discuss it as a question of fact as well as principle. Idealists can debate whether life experience should inform jurisprudence, but whether it has or not is less debatable. Let's ask why Dred Scott v. Sandford or Plessy v. Ferguson were decided wrong. Was it only because the justices of the age were imbeciles? Or did it have at least something to do with who they were (or who they weren't) and how that influenced their perceptions on subjects of citizenship and equality? Admitting the possibility is little comfort to those who take Sotomayor's view, however, since these cases demonstrate that life experience is a two way street. It can lead one to decide questions of justice wrongly sometimes. That has to be true for everybody. If particular experience gives the wise Latina superior understanding of certain issues, it may cloud her understanding of others, perhaps inevitably. A clever Senator might concede the argument of the judge's speech, yet ask her if she can envision a case in which the white man has superior insight by virtue of life experience. Should she say no, then we should worry about her.