JURIST Guest Columnist Laura Gómez of the University of New Mexico School of Law says that although Senators Graham and Sessions were technically right about the political consequences that would befall them if they had said anything along the lines of the "wise Latina" remark Judge Sonia Sotomayor made in a 2001 speech at UCLA, they fail to appreciate how her roots in a traditionally excluded community make that "rhetorical flourish" appropriate and even inspirational coming from her…

Senators Lindsey Graham (R-South Carolina) and Jeff Sessions (R-Alabama) both asserted during their questioning of Judge Sonia Sotomayor that, if they'd made the reverse statement she made about a wise Latina judge about white male judges, it would have been a career-ender for them. As Graham put in a rhetorical question to Obama’s first Supreme Court nominee, “Do you understand ma’am that if I had said anything like that, they would have had my head?”

Graham’s right, but his claim misses the boat by treating two things that are different the same. Saying that a Latina judge might sometimes reach a better conclusion than a white male judge is not equivalent to saying the same thing about white male judges. Individual claims of “reverse racism” such as this ignore the larger context that has made racism so pernicious in American society. We do not live in country that has historically discriminated against white men. Rather, we live in a nation where legalized discrimination against women of all races, African Americans, Native Americans, Asian Americans, Mexican Americans, Puerto Ricans and others characterized much of this nation’s first two centuries.

The legal system, including the Supreme Court, played a key role in perpetuating discrimination against non-whites and women of all races who were not allowed to exercise the fundamental indicia of citizenship — the right to vote (and, in the case of African American men after the Civil War Amendments to the Constitution, the ability to vote after the technical right was granted via mechanisms like the poll tax, literacy tests and the all-white primary) and the right to judge one’s fellow citizens as a juror. Mexican Americans, 115,000 of whom became U.S. citizens in 1846 with the end of the war against Mexico, were widely discriminated against as jurors in the Southwest until 1954, when (during the same term it decided Brown v. Board of Education) the Supreme Court concluded such discrimination against them violated the Fourteenth Amendment in a cased called Hernandez v. Texas. As late as 1961, the Supreme Court allowed states to openly discriminate against female jurors (Hoyt v. Florida).

Although we deride jury service as something to avoid today, traditionally the role of juror was an important counter-weight to the judge. Jurors are lay-judges who play a unique role in the Anglo-American judicial system. There was good reason for advocates of white supremacy (and those state and local governments controlled by them) to fight so long and hard to prevent empowering people of color and white women to sit in judgment of white men, whether defendants in civil or criminal cases.

Historically, women were incapable of becoming judges because they could not first become lawyers. The Supreme Court upheld state laws that banned women from obtaining law licenses in 1871 (Bradwell v. Illinois) and again in 1894 (In re Lockwood). It was not by accident that all judges were at one time white males; it was by systematic design.

Even after the removal of formal bars to white women and people of color becoming judges, stereotypes and popular images portrayed judging as the domain of elderly white men (close your eyes and picture a wise judge). Cultural images of judging have changed dramatically in the past 20 years; consider that we have seen way more women of color on the bench on shows like “Law and Order” than exist in real-life. But stereotypes and cultural norms change slowly. Hispanic women are much more commonly portrayed in television shows and movies as either lascivious sexual objects or domestic workers, or both (see Jennifer Lopez in “Maid in Manhattan”).

Sotomayor is doubly implicated in this sad American history as both a woman and a Puerto Rican. So I take her at her word when she said during her confirmation hearings that her wise Latina comment was “a rhetorical flourish” meant to inspire Hispanic law students and young lawyers to consider careers in the judiciary. Precisely because of the historical exclusion of people like them from judgeships, she was eager to let them know they could bring something unique and important to the bench.

In response to Sessions, she added, “I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experience.” This was an implicit nod to the discriminatory history I’ve outlined, even if she was unwilling to make the argument outright. More than anything, Sotomayor was making the point that even Latinas can be judges — sometimes even wise ones.

Laura Gómez teaches law at the University of New Mexico and is the author of Manifest Destinies: The Making of the Mexican American Race
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