Sen. Chuck Grassley of Iowa, the chairman of the Senate Judiciary Committee, has taken the lead in the Senate GOP’s effort to block Judge Merrick Garland’s Supreme Court nomination in the hope that a President Donald Trump will be the one to name the late Justice Antonin Scalia’s replacement.
Grassley’s blockade became even more problematic this week when Trump launched a racist assault against a federal judge who is hearing a fraud case involving his Trump University. Trump claimed that the judge, who was born in Indiana to parents who emigrated from Mexico, had an “inherent conflict of interest” in the case because he is “Mexican” and Trump is “building a wall.” The presumptive GOP presidential nominee later acknowledged that using the same logic, it was “possible” that a Muslim judge should also be disqualified from hearing a case involving him.
Trump’s comments drew widespread condemnation, including from some of his fellow Republicans, but Grassley, apparently, didn’t see the problem. In a conference call with Iowa reporters today, Grassley equated Trump’s comments with Justice Sonia Sotomayor’s famous “wise Latina” remark that became a right-wing flashpoint during her 2009 confirmation hearings:
“I think that you don’t have any more trouble with what Trump said than when Sotomayor said that — when she was found saying in speeches that, quote, ‘A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male,’” he said. “I don’t hear any criticism of that sort of comment by a justice of the Supreme Court.”
Grassley didn’t pull this comparison out of thin air: The same comparison has been popping up all over the right-wing media.
It’s a flashback to 2009, when conservatives latched on to a speech Sotomayor had given in 2001 in which she disagreed with the idea that a judge isn’t influenced by his or her personal background:
Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am also not so sure that I agree with the statement. First, … there can never be a universal definition of wise. Second, 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.
What Sotomayor’s critics often chose to ignore was that she went on to say that while a judge’s personal experience can’t help but influence how they see the world, a good judge tries to look beyond the myopia of personal experience to understand the lives of others:
I … 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. … [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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Sotomayor later clarified in the face of right-wing criticism: “I want to state upfront, unequivocally and without doubt: I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe every person has an equal opportunity to be a good and wise judge, regardless of their background or life experience."
It shouldn’t be surprising that Grassley and some of his allies on the Right are reviving the “wise Latina” attack on Sotomayor as they attempt to defend Trump. In fact, Trump’s comments about Judge Gonzalo Curiel are not that different from how the Right attacked Sotomayor during her confirmation hearings, claiming that simply because she had spoken proudly of her Latina heritage and acknowledged that a person’s background can shape how they see the world she would be driven by “identity politics” rather than the law.
Some claimed explicitly, and many others implicitly, that Sotomayor, who had graduated from Princeton and Yale and had served for many years as a federal judge, was not as qualified as a white judge with a similar record. Pat Buchanan, who is now an enthusiastic cheerleader for Trump, was one of those who made the claim explicitly when he wrote that white Americans “pay the price of affirmative action when their sons and daughters are pushed aside to make room for the Sonia Sotomayors.”
We wrote in a report after her confirmation:
Sotomayor’s “wise Latina” remarks were taken out of context to imply that she was some kind of ethnic supremacist, and her ruling in the Ricci affirmative action case was wildly distorted to suggest that she was a judicial activist who lived to use the law as a club against white men. Pundits like Rush Limbaugh and elected officials like Tom Tancredo called her a racist. Pat Buchanan charged her with having a “race-based” approach to justice and having demonstrated “a lifelong resolve to discriminate against white males.”
On the first day of Sotomayor’s confirmation hearings, columnist Eugene Robinson observed:
Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" — black, brown, female, gay, whatever —has to be judged against this supposedly "objective" standard.
Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings — as he did at his confirmation hearings — but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work.
This seems to be the attitude of the Trump campaign, whose top operative has said that picking a woman or person of color as a vice presidential nominee would amount to “pandering” and whose list of potential Supreme Court picks were all white and mostly men. According to Trump, it seems, only white men can be unbiased and qualified. And Grassley seems to think that’s just fine.