Have Sotomayor's critics actually read her Berkeley speech?

Since President Obama announced the nomination of Sonia Sotomayor to the Supreme Court, numerous media figures have pointed to a sentence from a speech she delivered in 2001 at the University of California, Berkeley, School of Law, to characterize her or her remark as being "racist." But in singling out and criticizing her for the remark -- "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" -- these media figures have ignored the point of Sotomayor's speech, which undercuts their criticisms. Sotomayor made the comment in question while discussing the importance of diversity on the bench and the effect of background and personal experiences on judicial decision-making, a point made by such conservatives as Justices Samuel Alito and Clarence Thomas.

Those who highlight the one comment miss her broader point, which is amplified in her words immediately following the statement for which she is being criticized. From Sotomayor's 2001 speech:

Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

[...]

I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

As is clear, Sotomayor does not talk only of the benefits she derives from her experiences; she also notes the challenge to her as a judge "to be greater than the sum total of my experiences," and "continuously to judge when those opinions, sympathies and prejudices are appropriate."

Sotomayor is not the first Supreme Court nominee to make the point that judges are influenced by their background and experiences. Indeed, conservative Justices Clarence Thomas and Samuel Alito have each acknowledged the significant impact that their personal background and experiences have had on their judicial thinking. Alito asserted during his 2006 confirmation hearing:

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

During his Supreme Court confirmation hearings, responding to Sen. Herb Kohl's (D-WI) question, "I'd like to ask you why you want this job?" Thomas stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does."

Examples of media figures misrepresenting Sotomayor's "wise Latina" comment include:

• During the May 29 edition of Andrea Mitchell Reports, MSNBC political analyst Pat Buchanan claimed, "If Sam Alito had said, 'I think given their life's experience and the richness of it, white males will make better decisions than Latina females,' he would be out. He would be finished."

• In a May 27 post on his Twitter feed, Fox News contributor and former House Speaker Newt Gingrich (R-GA) commented: "Imagine a judicial nominee said 'my experience as a white man makes me better than a latina woman' new racism is no better than old racism." In a subsequent post, he added: "White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw."

• During the May 29 edition of Fox News' Brian and the Judge, Fox News host Chris Wallace claimed of Sotomayor's comments: "It's certainly not very smart of her to have said. And I think it's troubling. You know, it troubles me. And I think, you know, the best thing to do in any of these cases is just reverse it and say, 'How would it have been if somebody had said, you know, "A wise white judge -- white male judge would come to a better decision, a better conclusion than a Latino judge"?' You know, and of course that would be considered hate speech and just awful, and a judge would be railroaded off the bench if they said that."

• On the May 26 edition of his nationally syndicated radio program, Rush Limbaugh posed a hypothetical: "Chief Justice John Roberts, in another speech, said, 'I would hope that a wise white man, with the richness of his experience, would more often than not reach a better conclusion than a Latina female who hasn't lived the rich white man's life.' Do you think there would be any dispute that John Roberts had made a racist statement?"

• During the May 26 edition of Fox News' Special Report, Fox News contributor Charles Krauthammer said of Sotomayor: "She's a person who said in a speech that she would hope that a Latina -- wise Latina woman would have -- would come to better conclusions as a judge than a white male. I mean, imagine if you heard someone say the reverse. He'd be run out of town as a racist and a sexist."

• During the May 26 edition of Fox News' America's Newsroom, co-host Megyn Kelly described Sotomayor's remarks as "reverse racism" and said it was "[l]ike she's saying that Latina judges are obviously better than white male judges." Kelly later added, "I've looked at the entire speech that she was offering to see if that was taken out of context, and I have to tell you ... it wasn't."

• On the May 27 edition of his Fox News program, Sean Hannity asked guest Julie Menin: "This would never be tolerated by a white male. Why do you, as a liberal, accept this double standard?" Hannity twice repeated the hypothetical, asking Menin: "To use the Newt Gingrich example, 'My experience as a white man makes me better than a Latino woman.' If anybody said that, would they have any chance today of getting on the court?" He subsequently said to Menin: "If a white male said that, you liberals would be excoriating them."

• During the May 27 edition of ABC News' Good Morning America, right-wing pundit Ann Coulter called Sotomayor's comment a "racist statement."

• Pointing in part to Sotomayor's comments during the May 27 edition of The Glenn Beck Program, host Glenn Beck called her a "racist."

• During the May 26 edition of Fox News' The Live Desk, Fox News contributor Tucker Carlson claimed Sotomayor made a "racist statement."

• During the May 26 edition of his syndicated radio show, Lou Dobbs described Sotomayor's comments as "racist."

• In his May 29 syndicated column, Buchanan described Sotomayor as an "anti-white, liberal judicial activist" and went on to quote her remarks out of context. He then added: "Imagine if Sam Alito had said at Bob Jones University, 'I would hope that a wise white male with the richness of his life experience would more often than not reach a better conclusion than a Hispanic woman, who hasn't lived that life.' Alito would have been toast. No explanation, no apology would have spared him. He would have been branded for life a white bigot."

• In a May 29 column, Chicago Tribune columnist John Kass said of Sotomayor's 2001 comment: "What would happen if I began a column about the corrosive effects of government-sanctioned racism with the following idiotic idea? 'I would hope that a wise white man with the richness of his experience would more often than not reach a better conclusion than an African-American or Latino who hasn't lived that life.' If I wrote such nonsense, I'd be denounced as a racist. And President Barack Obama would never nominate me to the Supreme Court."

• On the May 26 edition of Fox News' Glenn Beck, Beck read Sotomayor's statement and asserted: "Gosh, that smacks of racism," to which Ethics and Public Policy Center president and National Review Online contributor M. Edward Whelan responded: "Well, any white male who made the equivalent of that statement would readily be indicted for racism."

• On the May 26 edition of Lou Dobbs Tonight, Dobbs asked CNN analyst Jeffrey Toobin of Sotomayor's remark: "If one were to invert those words and say that a white male with a richness of his experience would more often than not reach a better conclusion than a Latino woman, would that make him a racist and a sexist?"

• A May 27 Washington Examiner editorial, headlined "The racist jurisprudence of Sonia Sotomayor," asserted of Sotomayor's comment: "It is not hard to imagine the outcry that would greet a white male nominee who suggested that his ethnicity and experience would enable him to reach better conclusions than a minority who had lived a different sort of life. He would be dismissed as a racist, and rightly so. Is President Obama now asking that we look the other way when blatant racism comes from an Hispanic woman of otherwise solid achievement?"