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No Apology Necessary for Sotomayor

07/03/2009 05:12 am ET | Updated May 25, 2011

Recently Politico.com quoted former Bill Clinton advisor Lanny Davis as having said about the White House and Sonia Sotomayor's controversial statement from a speech she gave at Berkeley, "She misspoke. Every day that goes by that they don't say she misspoke and she used the wrong words ... they just feed it and give it life and give Rush [Limbaugh] and [Sean] Hannity more airtime unnecessarily." (http://www.politico.com/news/stories/0509/23053.html) I totally disagree with this. Looking at the context of those remarks it's clear that Sotomayor was speaking about a judge ruling on a sexual or racial discrimination case, not in general. Thus, her point was when assessing the circumstances of a woman who has been sexually harassed or a minority who has been discriminated against, of course a Hispanic woman would bring her particular experience to the table. She even quoted multiple Yale law professors who advocate the impossibility of disregarding one's own background entirely even when making a concerted effort to do so.

Her comments are also no different in import from ones made by Clarence Thomas in his confirmation process when he said, "I can bring something different to the Court. I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, 'But for the grace of God there go I.'" (http://www.huffingtonpost.com/2009/05/30/clarence-thomas-on-walkin_n_209376.html) or those of Samuel Alito who said, "When I get a case about discrimination, I have to think about people in my own family who, who suffered discrimination because of their ethnic background or because of religion or, or because of gender. And, and I do take that into account." (http://www.nfmpolitico.com/kpix/2009/05/31/dems-differ-on-wise-latina-defenses/)

Judges are not robots or automatons who simply apply the law and facts without any type of intuitive and experienced analysis and thought. David Brooks makes a great point when he writes, "People without emotions cannot make sensible decisions because they don't know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row." (http://www.nytimes.com/2009/05/29/opinion/29brooks.html?_r=1)

Take the issue of a woman's right to choose for example, one of the hot button issues of the day. We can see the importance that having personal experience brings to the bench. We need women on the bench since they understand the particular nuances around a woman's right to have control over her body and her choices. That is, of course, not to say that a man cannot and would not reach the same conclusion, but a woman's perspective is unique and helps provide a bench that is properly reflective of the population.

And Latinos are the fastest growing population in the US. As Maria Teresa Petersen, Founding Executive Director of Voto Latino, pointed out during her appearance on Give and Take (http://juliemenin.com/2009/03/maria-teresa-petersen-part-iii/), Rush Limbaugh's anti-immigrant stance, the Republican lack of support for its own leader Michael Steele, and its overall failure to be more inclusive, is alienating Latino voters, who in part, as a result of being disproportionately affected by the subprime mortgage crisis, are becoming increasingly disillusioned with the political process. Even if the right refuses to support Sotomayor despite her overwhelming qualifications, they would only gain politically if they did.

The fact that the right is focusing on Sotomayor's "wise Latina" comment shows just how few credible arguments they have against her. She has more experience on the bench than any recent nominee and her stellar educational background coupled with her record as a judge leave little room for attack.

Interestingly, the other line of attack the right is using is to focus on the Ricci v. New Haven case, where Sotomayor sided with the city and not the white firefighters who were denied promotions despite passing a departmental test. Conservative commentators argue that Sotomayor is somehow a "reverse racist" for not siding with the white firefighters, but she was merely following precedent that upheld a city's right to throw out exam results to avoid a Title VII claim. To argue that Sotomayor should have ignored precedent would have actually made her a judicial activist. The right's strategy of attack to block Sotomayor's confirmation is flawed and ignores context, and if Sotomayor ruled the same way the right is attacking her, which she does not, only then would the right have a case.