June 7, 2009

In defense of Sotomayor? Nah.

Don't panic - I haven't changed my mind on Sotomayor. She's absolutely wrong for the job. However, her comment about a "wise Latina" woman is, unfortunately defensible in one way.

Anyone in the legal profession has had to deal with hypotheticals. These are essentially 'what if' scenarios.

Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:

  • What if the agreement had been oral instead of in writing?
  • What if the contract price had been $300?
  • What if Alice had been a minor?
  • What if the contract had not specified a price?
  • What if Alice did the job, but the roof still leaked?
  • And so on.

Thanks to Legal Theory Lexicon for the example.

So here's the hypothetical, and the defense, for Sotomayor. If it's a what if scenario, it's not binding. As a defence, it's pretty thin, and not really a game winner for her, thankfully. But here it is nonetheless.

She said, paraphrasing, that she would hope a wise Latina woman would come to a better conclusion than a white male.

That involves two hypotheticals;

(1) She would hope it was the case. Very hypothetical.

(2) She is a wise Latina woman. Equally hypothetical.

I know that was a long way to go for a bit of sarcasm, but still, it was fun.

I'd like to point out to any Sotomayor defenders that there's a big difference between being educated and being smart and being wise. All of those things are distinct traits.

Furthermore, there are lots of wise Latina women. She doesn't seem to be one of them.

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