Perhaps because more people have had time to actually read the speech by now, the effort to brand Sonia Sotomayor a racist on the basis of one decontexualized line from a talk seems to have simmered down.  The “softer” line is that she’s apparently “obsessed” with race and gender issues. By way of Steve Benen, here’s Victor Davis Hanson:

A disinterested observer would conclude that Justice Sotomayor is race-obsessed. In her now much quoted 2001 UC Berkeley speech she invoked “Latina/Latino” no less than 38 times, in addition to a variety of other racial-identifying synonyms. When one reads the speech over, the obsession with race become almost overwhelming, and I think the public has legitimate worries (more than the Obama threshold of 5% of cases) over whether a judge so cognizant of race could be race-blind in her decision making.

No great surprise there. But I would expect Andrew Sullivan to know better:

It isn’t the judicial rulings that trouble me so much as her non-judicial opinions and mindset. The constant, oppressive consciousness of her identity – racial and gender – and the harping on it so aggressively so often does strike me as a classic mode of victimology deeply entrenched in her generation

This is just weird. It’s rabid critics for whom Sotomayor’s entire career appears to consist of that one speech who are obsessing over it.  What on earth did they expect her to talk about after being invited to a symposium on Latinas in the judiciary? Monica Youn actually covered this territory last week in a fine Slate piece:

The symposium was titled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation,” and Sotomayor’s invite came from a Latina law school classmate and from Judge Olmos’ widow, friends, and family. It was an invitation that could not be lightly refused. But in this political climate, an invitation to speak for half an hour about race in America—like an invitation to talk for 30 minutes about abortion or gay marriage or any other polarizing issue—is an invitation to provide fodder for opposition research.

Recent years have seen a depressing pattern in which notable “ethnic” political figures— from President Barack Obama and first lady Michelle Obama on down—end up having to extricate themselves from the tangles of racial politics, defending themselves from charges of “reverse racism,” “identity politics,” or the like. This may have much to do with the fact that, unlike their “nonethnic” counterparts, such “minority role models” are regularly asked to put on the public record—at lunches, award ceremonies, community events—lengthy statements of their views on America’s most explosive topic: race.

Just so. To my mind, the interesting thing is how much of that now-infamous speech was recycled, near verbatim, from an earlier 1994 talk about women in the judiciary. The putatively “race obsessed” Sotomayor seems to have written the more recent talk largely by plugging the word “Latina” into a preexisting talk on gender. Conservatives have been jumping on it because it makes it harder to argue that she “chose her words poorly” in the later talk. But they don’t seem to have read that speech either, because it clarifies some of those later lines critics have harped on. A lot of folks have found this bit especially troubling:

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.

The same line appears almost verbatim in the earlier talk, except there it’s exclusively about gender, so the reference to “cultural differences” and “national origins” are omitted. The obvious inference is that Sotomayor thinks national origin may influence judging because of cultural differences, whereas gender may affect judging because of experience or inherent physiological differences. The latter possibility, the earlier speech makes clear, is a very tentative allusion to Carol Gilligan’s thesis from In a Different Voice, which postulated that, on average, men and women employ distinct modes of reasoning to approach the same question.

The same talk also gives some more context as to what Sotomayor means when she expresses a hope that a “wise woman” (later a “wise Latina”) would make a “better” decision, though in this case her view may actually be less inoccuous than her remarks in the later speech. A “better” decision, she makes clear, should be understood as a “more compassionate, and caring conclusion.” Here, too, this is anchored to a contrast with historical cases involving race and sex discrimination where, until relatively recently, the high court was cool to claims brought by women and minorities. But there’s also more elaboration of what kinds of differences in judging Sotomayor expects—though she takes great pains to make clear that she’s here talking about the aggregate effect of having more women on the bench, not expressing some deterministic view about how individual women will or must vote.

She cites a case where three female judges ruled to grant a protective order denying an abusive father visitation rights, with two male judges dissenting. She  mentions a study showing that women on the appellate bench were more likely than their male counterparts to support plaintiffs in sex discrimination cases and “underdog” criminal defendants in search-and-seizure cases. Finally, she notes the famous Menendez brothers trial, where the female jurors in the trial of one of the parricidal pair split from the men in wanting to either acquit or convict on a lesser charge.

Once again, the line about making “better” decisions is most clearly linked to cases involving race and sex discrimination claims. That part I’ve never found either objectionable or, indeed, controversial. I’m a bit more sympathetic to the critics if this “betterness” is supposed to encompass the various types of difference alluded to in the broad range of cases cited above. On the other hand, if empirically there are systematic average differences in the rulings of male and female judges, especially if these otherwise cross ideological lines, it sounds like a kind of strict constructionist political correctness to just stop up our ears and pretend it’s not true. Again, in context, I think the most plausible reading is that the “betterness” Sotomayor’s talking about, though she speaks here in the singular about a “wise woman,” is an aggregate phenomenon, the upshot of correcting the invisible bias that creeps in when for centuries judges are all of the same race and gender—though she repeatedly stresses that truly “wise” white male jurists displayed the ability to overcome that bias in themselves.

On the whole, I think the earlier talk probably has more that one might reasonably disagree with. But also nothing that counts as a disqualifier for a seat on the Supreme Court. The operative question here is really whether she’s making a reasonable descriptive point about aggregate historical effects of having women and minorities on the bench, or whether she’s making a normative argument for letting “compassion” trump statute. And her record just doesn’t support the latter interpretation.  Hell, the talk itself doesn’t support that interpretation. Unfortunately, there hasn’t been too much discussion of what’s sound and unsound in Sotomayor’s fairly subtle view here because all we’ve really gotten of it is this mindblowingly crude caricature. It might make for a interesting discussion, but nobody’s allowed to have an intelligent though possibly partly mistaken view anymore. Now we’re all either perfect or—as a single sentence might reveal—Hitler. Ah, deliberative democracy.