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Sotomayor's Larry Summers Defense

Sonia Sotomayor has taken a lot of heat from Republicans on the Senate Judiciary Committee for her comment that, “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.” To her critics, this sounds uncomfortably like a claim that women or Latino or African American judges are genetically predisposed to decide cases differently from white males.

Questioned about this by Republican Senator John Cornyn of Texas, Sotomayor reassured him that she had merely been trying to explore a “hypothetical question,” in the manner of a probing social scientist. “[W]hat I was saying,” she told Cornyn, “is ‘let's ask the question.’ That's what all of these studies are doing. Ask the question if there's a difference. Ignoring things and saying, you know, ‘it doesn't happen’ isn't an answer to a situation. It's consider it. Consider it as a possibility and think about it. But I certainly wasn't intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging.”

Call it the Larry Summers defense. Back in January 2005, then-Harvard President Lawrence H. Summers addressed a conference on the lack of tenured women faculty in the sciences. Summers said he wanted to “just try to think about and offer some hypotheses as to why we observe what we observe without seeing this through the kind of judgmental tendency that inevitably is connected with all our common goals of equality.” Citing various research studies, he then proceeded to suggest that some of the male predominance in physics, chemistry and mathematics was not due to discrimination but “more intrinsic human nature,” i.e., deep-rooted genetic differences in the way males and females think.

Outraged, women scientists and others denounced Summers for seeming to endorse the notion that women are inherently less capable of doing top scientific work than men. They brushed off his disclaimer that he was just sort of, you know, floating a theory.

Summers fell all over himself apologizing, but it wasn’t enough. A year later, having lost a no-confidence vote by an indignant Harvard faculty, he resigned. Today, of course, he’s the top economic adviser to President Obama.

Today Republicans on the Judiciary Committee are trying to back Sotomayor into the same political corner into which feminists once backed Summers. I doubt they will find her defense more credible than women scientists found the original.

But, unlike Summers, Sotomayor’s got the votes to win anyway.

By Charles Lane  | July 15, 2009; 1:51 PM ET
Categories:  Lane  | Tags:  Charles Lane  
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Next: Perry Mason, Meet Sonia Sotomayor

Comments

If one looks solely at what was written in this column, it certainly would appear that a double standard exists. Indeed, that’s what Charles Lane would have you think.

But as we know, each example is extracted from a much larger story.

In Dr. Summer’s case, the Harvard board hired him to whip the independent-thinking faculty in line, knowing in advance he would find few friends there. But the faculty proved stronger than the board realized, and the board blinked first. Once the board backed down, Dr. Summers realized his future would be brighter elsewhere and resigned. Indeed, having the full attention of the most powerful person on the planet is much more satisfying than being in a job where no one who hired you or works for you has any respect for you. The remarks Dr. Summers made about women and the sciences are but a minor footnote and had no bearing on the eventual outcome.

The same goes for Judge Sotomayor. Everyone on the Senate Judiciary Committee knows she will be confirmed, but it is necessary for the opposition to raise issues regarding her qualifications. The very few that exist pale in comparison to her extensive record as a prosecutor, litigator, and judge. And the media, obedient creatures that they are, are madly trying to inject sensationalism into her candidacy in an effort to attract readers and/or viewers.

Given that we already know the outcome, it’s simply entertainment for the rest of us. Me, I’m getting ready to change channels.

Posted by: MsJS | July 15, 2009 2:52 PM | Report abuse

Both Summers and Sotomayor made a valid point addressing different issues: we are each a unique product of brain-body hardwiring, by our culturally imposed software, and by our education and life experiences.

With regard to the issue of judicial impartiality, the best we can do is pay attention to how our perspective may be influenced by any one or all of the influences from genetic through cultural and experiencial. When we are self-aware, we have the capacity to rise above the boundaries of our personal experience and come closer to impartiality.

The critics of Sotomayors full and contextual comments about perspective genuinely seem to have not yet reached the stage of human/cognitive development when one can understand that everyone has a unique perspective. In his statements at the hearing Senator Jeff Sessions (R-AL) insisted that totally unbiased, strictly law based decisions are possible, and that Sotomayor's awareness of her unique and personal perspective means she will operate from that bias.

The opposite is true. People who can see their own biases are much more likely to operate beyond them.

Posted by: vhammon | July 15, 2009 2:55 PM | Report abuse

"What's good for the goose is good for the gander" much? ... Hmmm?

Posted by: deepthroat21 | July 15, 2009 3:33 PM | Report abuse

What the Summers anecdote illustrates is that anyone, particularly of the majority, who expresses an opinion in opposition to the current party theory will be burnt at the stake.

Summers offered a rational theory about a particular issue.

Because it was in opposition to one of the cherished beleifs of the Sisterhood i.e. women are superior to men he was driven from the village.

So much for scientific or scholarly debate.

Posted by: krankyman | July 15, 2009 3:39 PM | Report abuse

Are these two situations really comparable? Dionne and others keep comparing Sotomayor's "wise Latina" comment to Alito's more general comment about his immigrant background. I think that's an innacurate comparison that minimizes what is questionable in Sotomayor's comments. I think this is a bad comparison too. First, although I am not a scientist, I think that gender and race are not so easily compared as one of the other commentors implied. There are actual physiological differences between men and women. How important those are in various situations is open to question and needn't undermine anyone's basic belief in gender equality. But I don't believe there are many (any?) biological differences between racial groups that even rise to that level. (Some expert, please correct me, if I'm wrong). Also, Summers was speculating on whether as a scientific matter, there may be differences in abilities between men and women that we need to take into consideration when we think of why women have not yet been fully sucessful in some fields. That's not what Sotomayor's comments implied at all. She was not refering to inbred racial differences in ability, but differences of experience that supposedly lead one race to be fairer or have better judgment than another. Summers should have expected controversy, but he should not have been drummed out of his position for asking a question. Sotomayor's unfortunate comments rightly generated controversy, but they should not keep her from confirmation - and they won't.

Posted by: dwatson01 | July 15, 2009 3:44 PM | Report abuse

Funny to read this -- I was just thinking earlier today about how Sotomayor's style of speech in answering questions is a bit reminiscent of Larry Summers.

Of course, the reason Summers was forced out was his long-term incompatibility with others; he simply doesn't have the good social graces and instinct for conciliation and for listening that characterize the best university presidents. The women in science remarks were mostly treated as emblematic of his lack of tact, rather than a singular reason to try to drive him out. And, in fact, the actual nail in his coffin at Harvard was the forcing out of the Dean of Arts and Sciences which many felt was bungled.

Just for the sake of accuracy...

Posted by: davestickler | July 15, 2009 4:34 PM | Report abuse

what a simplistic and mindless opinioin of what Summers said.

What summers, a academic did, was ignore the evidence from hundreds of studies that show that mean and women are equal in performance of math and science, but in the western cultures women are taugh and re-enforced that they can not do math and science.

He was scolded (deservedly so) for rejecting the Science of the studies for his own opinions on how smart he is.

(this is the same guy that in 2007 said the mortgage industry was solid and derivatives were no problem.. Need one see a problem with Larry?)

Posted by: newagent99 | July 15, 2009 5:07 PM | Report abuse

Yonkers, New York
15 July 2009

Probably to their chagrin, Republican Senators Lindsey Graham, Jeff Sessions, John Cornyn and Jon Kyl failed miserably to have their "I gotcha!" moment with Supreme Court Justice nominee Sonia Sotomayor.

She clearly saw with her keen mind's eye the bear traps that they had set for her on the issue of abortion, on the Second Amendment, on the Ricci case, and still others--and, as coolly as expected, she adroitly evaded all of their traps.

Probably in exasperation Sen. Lindsey Graham ventured the opinion that unless Judge Sotomayor went into a "meltdown," she will be confirmed as a justice of the U.S. Supreme Court.

Mariano Patalinjug

Posted by: MPatalinjug | July 15, 2009 5:51 PM | Report abuse

The truth is that Senators, Judges and everyone else looks at life through a prism formed by their life's experiences.

Why is it that the Committee seems to lack impartiality. Democrats can be expected to automatically support a Democratic nominee and GOPS can be expected to support a GOP nominee.

How many GOP Senators fell into line when Dubya nominated his Judges?

The problem with the Senators is that they do not confine their enquiry to matters of relevance. Once competency is established along with appropriate judicial behaviour one must ask what else matters.

I would not bother to make a song and dance about abortion or any other controversial issue because if a nominee has a position on these matters then they lack impartiality and they are not adhering to the rule of law which requires them to identify, construe, apply and explain the law which is relevant to a given set of facts and legal issues.

Sotomayor is a senior judge on a senior court. The Senators have not raised evidence of failures on her part. However, they have turned their enquiry to asking her to examining her political correctness on issues. That is wrong of them. It manifests their failure.

So far they have made a song and dance but they have not shown that there is good reason to reject Sotomayor.

The Constitution contains 'bare bones' in relation to the role of the Judicial Committee. Therefore, one must expect them to make it a rational and intelligent process rather than a song and dance about what they individually perceive as political correctness.

The Senators impugn the integrity of the bench and individual judges when they conduct an enquiry and draw conclusions on matters of irrelevance.

Posted by: robertjames1 | July 15, 2009 8:32 PM | Report abuse

I think people tend to forget that differences in male and female achievements may arise as much from a difference in tastes as in ability.

A lot of people are not really interested in the abstract thinking that goes on in Math and Physics just as a lot of people are not all that interested in eating wood chips. Men will always eat wood chips on a dare, but women often do not.

What is fascinating is the likelihood that feminists will be outraged by such observations. "Women can eat woodchips just as well as men can", they will say, or "Math is not woodchips and comparing Math and woodchips is just a cheap trick to keep women out of Math." You can't win!

Posted by: rohitcuny | July 15, 2009 8:36 PM | Report abuse

I have been around a long time and have worked with women, men, and every major ethnic and racial group in the country. I can assure you that each one approaches problem solving in a different way. What I have found is that having a diversity of opinions results in a more comprehensive and effective outcome. Surely no one thinks that Judges Roberts, Scalia, Alito, and Thomas are perfectly objective? Look at their decisions. Their bias toward the rich and powerful is obvious. Having some balancing factor on the Supreme Court's decision making would be quite refreshing.

Posted by: cdierd1944 | July 16, 2009 8:47 AM | Report abuse

"The truth is that Senators, Judges and everyone else looks at life through a prism formed by their life's experiences.

Why is it that the Committee seems to lack impartiality. Democrats can be expected to automatically support a Democratic nominee and GOPS can be expected to support a GOP nominee.

How many GOP Senators fell into line when Dubya nominated his Judges?

The problem with the Senators is that they do not confine their enquiry to matters of relevance. Once competency is established along with appropriate judicial behaviour one must ask what else matters.

I would not bother to make a song and dance about abortion or any other controversial issue because if a nominee has a position on these matters then they lack impartiality and they are not adhering to the rule of law which requires them to identify, construe, apply and explain the law which is relevant to a given set of facts and legal issues.

Sotomayor is a senior judge on a senior court. The Senators have not raised evidence of failures on her part. However, they have turned their enquiry to asking her to examining her political correctness on issues. That is wrong of them. It manifests their failure.

So far they have made a song and dance but they have not shown that there is good reason to reject Sotomayor.

The Constitution contains 'bare bones' in relation to the role of the Judicial Committee. Therefore, one must expect them to make it a rational and intelligent process rather than a song and dance about what they individually perceive as political correctness.

The Senators impugn the integrity of the bench and individual judges when they conduct an enquiry and draw conclusions on matters of irrelevance."
________________________

BRAVO!

Posted by: mtravali | July 16, 2009 9:56 AM | Report abuse

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