Right calls Sotomayor racist over line in talk SUPREME COURT NOMINEE

President Barack Obama announces federal appeals court judge Sonia Sotomayor, right, as his nominee for the Supreme Court, Tuesday May 26, 2009, in the East Room of the White House in Washington. (AP Photo/Alex Brandon) less President Barack Obama announces federal appeals court judge Sonia Sotomayor, right, as his nominee for the Supreme Court, Tuesday May 26, 2009, in the East Room of the White House in Washington. (AP Photo/Alex ... more Photo: Alex Brandon, AP Photo: Alex Brandon, AP Image 1 of / 1 Caption Close Right calls Sotomayor racist over line in talk 1 / 1 Back to Gallery

A line about Latina wisdom - hardly provocative at UC Berkeley in 2001 - has become a flash point for conservative opposition to Supreme Court nominee Sonia Sotomayor.

In a speech, Sotomayor was taking issue with then-Justice Sandra Day O'Connor's dictum that a wise old man and a wise old woman would reach the same conclusion in a case.

"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," she said.

But less than 24 hours after President Obama's nomination of Sotomayor, now a federal appeals court judge, conservative talk show host Rush Limbaugh and former House Speaker Newt Gingrich had called her a racist.

Gingrich said Sotomayor, who would be the first Latino on the nation's highest court, should step down, arguing that if a white male nominee had said the same thing he would be forced to withdraw, and so should Sotomayor.

"The new racism is no different than the old racism," Gingrich said.

The fact that the line was delivered at Berkeley only added fuel to a bonfire that may not jeopardize Sotomayor's Senate confirmation but could recast her reputation.

White House responds

White House officials and liberal groups fired back, trying to put the sound-bite genie back in the bottle - in the world of cable television and 30-second ads - by pointing to the context of the remarks.

The speech itself makes a fairly mundane argument, and some say obvious statement of fact, that all people bring their own life experiences to bear in making judgments.

It is as much a paean to family and hard work that it might bring applause from some conservatives.

Sotomayor recalled the "countless family holidays" celebrated in her South Bronx upbringing, watching adults play dominoes as the children played bingo using chickpeas, and of a soul nourished at her grandmother's house with cousins and aunts.

"They were my friends as I grew up," she said. "My family showed me by their example how wonderful and vibrant life is and how wonderful and magical it is to have a Latina soul. ... They taught me to love being a Puerto Riqueña and to love America and value its lesson that great things could be achieved if one works hard for it."

Conservatives who have studied Sotomayor's judicial decisions, including her rulings against business interests, believe their side may be overreacting.

Urging restraint

"It's not as if I think Obama's incapable of nominating someone who is more adventurous and more activist by nature," said Walter Olson, a senior fellow at the conservative Manhattan Institute. "Maybe we should save the all-out blast for when he nominates that one."

The case of the New Haven firefighters that critics are using to underline Sotomayor's Berkeley speech also is not as clear-cut as it may seem at first glance.

The February 2008 case upheld the decision by the city of New Haven, Conn., to throw out the results of a firefighter exam because it allowed only one Latino and no African Americans to be promoted. The three-judge panel on the Second Circuit appeals court in New York, which included Sotomayor, ruled in an unusually brief opinion to affirm the lower court.

Hoover Institution scholar Thomas Sowell, a prominent African American conservative and fierce foe of affirmative action, cited the case in arguing that empathy for minorities cannot be reconciled with "equal justice under the law," the motto inscribed on the entrance to the Supreme Court.

Sowell, in an article for National Review magazine, criticized Sotomayor for not giving the case "even the courtesy of spelling out the issue. Apparently she didn't have 'empathy' with those predominantly white males who had been cheated out of promotions they earned."

Olson said the firefighter case is "a little bit tricky" and, if anything, is an example of how Sotomayor ducked the chance of a lifetime to take an activist role on affirmative action.

It was the rare sort of case that so vividly presented the issues that an archetype activist judge "would have said, 'Let me at it. I'm going to write a 50-page opinion which is going to rally all the forces for affirmative action to show why we have to win this debate once and for all,' " Olson said.

Instead, Sotomayor essentially waved the case through, "unusual behavior for a case that calls for all of your constitutional powers to be brought to bear," Olson said. "But if that's the critique of her, it's one that should give us pause."

A former clerk for Sotomayor on the Second Circuit, UC Berkeley assistant law Professor Melissa Murray, said Sotomayor's blossoming caricature does not match what she saw.

'Incredibly smart, fair'

"She has sterling credentials," Murray said. "She's incredibly smart, she's incredibly fair. I think she takes every case on its merits. She's very rigorous in researching cases and she applies the law. The idea of her as an activist is absolutely ludicrous. In my time with her, I've never seen anyone more sensitive to what the law in our circuit actually required."

Jesse Choper, a UC Berkeley constitutional law professor, said Sotomayor might take back her Berkeley words if she could, saying they were inelegantly put.

"But having said that," Choper said, "every Supreme Court justice, every human being, is the product of their own experience, their own education, their own background, their own values."

A woman brought up riding horses in Arizona may have a different perspective than a woman brought up in the South Bronx, he said, referring to O'Connor, who grew up in Arizona. "That's inevitable. Absolutely inevitable."