On Friday,  Rich Lowry shared a Email over at NRO that he had received:

I decided to peruse the comments delivered by the other participants in the 2001 Symposium at Berkeley, expecting to find that Judge Sotomayor’s position was fairly mainstream among the presenters at an event sponsored by “La Raza Law Journal.”

To my surprise, two of the judges speaking after her (she gave the keynote address the night before their presentations), rejected her relativism, her characterization of “[t]he aspiration to impartiality” as “just that”-a mere aspiration, and the endorsement of the use of “prejudices.”  None of the judges expressly disagreed with her by name, but given that, in her words, the “focus” of her keynote address was precisely the endorsement of prejudice, the implicit disagreement was fairly palpable and was probably obvious to the audience.

Lowry’s writer first references California State Judge Valeriano Saucedo, who acknowledged that “he had a certain degree of understanding to Hispanic defendants, but ‘[t]hat does not mean that I apply a different standard of justice, because that is wrong.’”

Also speaking was Ninth Circuit US Court of Appeals Judge Judge Richard Pae:

“I used to tell jurors when they entered the courtroom and took their oaths as jurors, ‘You walk into the courtroom with a lifetime of experiences, and we don’t ask you to suddenly forget all that experience, to ignore that experience.’  I asked them if they could judge fairly the case that they were about to hear. I explained, ‘As jurors, recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot – if you cannot set aside those prejudices, biases and passions – then you should not sit on the case.’

“The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in my office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that – I am viewed as a Latino judge – as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.

The accuracy of this Email is confirmed today by The Weekly Standard’s William Kristol, appearing on Fox News Sunday.

KRISTOL: … It was a carefully prepared text, published in La Raza Law Journal.

WALLACE: This is her 2001 speech at Berkeley Law School.

KRISTOL: Right, at Berkeley Law School, at a symposium, speaking from a text, a total endorsement of, in my view, identity politics, counting by race, a Latina judge’s voice.

She goes so far that the next day Judge Richard Paez of the Ninth Circuit, who is a liberal Clinton appointee, basically rebukes her and makes a big point of saying, “Look, I’m proud to be a Latino. I bring my experiences to the court. But I took an oath to judge, and I really believe we have to judge impartially and it can’t just be an aspiration,” and he didn’t mention her name, but he basically is rebutting her speech the night before that somehow impartial judging is merely an aspiration.

So I think she has to account for this speech, not just for one sentence.

Again, the following was part of Sotomayor’s speech at the La Raza event, stated prior to the comments made by the two judges who are referenced above:

“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.”

You may have already read Andy McCarthy’s question at NRO, echoed the other day by Sean Hannity on his radio program:  “Forget Whether She Qualifies as a ‘Racist.’ Would Judge Sotomayor Qualifiy as a Juror?”

I have not before served as a juror, and I am not a lawyer, but I must think that if, after being called for jury duty, a potential juror were to state to the judge that his worldview informed him that a white, southern background led him to not only a different, but also better, opinion, the person would likely not be chosen for the jury.  Judge Pae said exactly that:  that it’s OK to have “biases and passions,” but if one cannot separate himself from them for the purposes of decision making, that this person disqualifies himself for jury duty; and not only for jurors, as “the same principle applies to judges.”

On May 29, William Kristol noted the comments made that day by Robert Gibbs:

“I think she’d say that her word choice in 2001 was poor.”

Gibbs added:

“I think if she had the speech to do all over again, I think she’d change that word.”

Kristol writes:  “That word was ‘better,’” and asks, “What word would Gibbs have preferred? Apparently, something less judgmental than ‘better.’”

As Kristol said today on Fox News, and as Rich Lowry writes, this doesn’t appear to be a situation that can easily be dismissed as “poor word choice.”  Lowry:

Heaven knows, we all say things in impromtu speeches or on TV or in blog posts that we wish we could take back. But how are you the victim of poor word choice in a speech, as Ed Whelan pointed out the other day, that was apparently delivered from a prepared text and that was then turned into a law review article months later? (Ed refers to it as the “unscripted” law review article.) The problem wasn’t the word choice; the problem was quite obviously what Sotomayor meant to say and said several times in several different ways very clearly.

Other Sotomayor-related news:

• University of Virginia’s Larry Sabato says it’s time for take-backs.

“Judge Sotomayor would be wise not to tap dance around this. Don’t just ‘clarify’ the statement, take it back.”

• William Kristol says it’s the right decision to oppose the nomination, if only because the GOP establishment is of the opposite opinion:

Any doubts I had that it was not just right in principle but also politically smart to challenge the Sonia Sotomayor pick disappeared this morning: The National Journal reports that its survey of “GOP Insiders” shows 64 percent advising that Republicans dodge a battle, with only a quarter recommending fighting. Safe rule of American politics: Two-thirds of “GOP Insiders” are never right.

• Sotomayor’s opinion on the Constitution is that, functionally, there is not one:

The New York Times reports “Sotomayor’s Appellate Opinions Are Unpredictable, Lawyers and Scholars Say“. The story isn’t that surprising when one considers this 1996 Sotomayor quote that Ed Whelan dug up:

“The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances. … the public fails to appreciate the importance of indefiniteness in the law.”

• In 1998, 29 US Senate Republicans voted against Sotomayor’s nomination to the Second Circuit US Court of Appeals, and 11 remain in the Senate:

Brownback (R-KS)
Enzi (R-WY)
Grassley (R-IA)
Hutchison (R-TX)
Inhofe (R-OK)
Kyl (R-TX)
McCain (R-AZ)
McConnell (R-KY)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)