Obama defends Sotomayor: "I'm sure she would have restated it."

Well, of course, she would have restated it if she'd thought, when she said it, that it would be used by opponents of her Supreme Court nomination the way it's being used today. But that's why the original quotation is so interesting and deserving of analysis.

Yet it was not an unguarded spontaneous outburst. It was a carefully written speech delivered to a particular audience. Sotomayor was saying the things that would be well-received by her audience. Indeed, I have trouble getting roused by her statement — "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" — because I've been immersed for a quarter century in the kind of law school environment that she addressed. Here, we sympathetically smile and nod at such things. We nurture racial analysis. We create a school of thought and hire people to write about Critical Race Theory. What Sotomayor said was actually a weak, feel-good version of the kind of racial talk that is widespread in the legal academy.

Sotomayor was invited to give that speech, I assume, because she is Latina. It was for publication in the Berkeley La Raza Law Journal, in a symposium called "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." She had to address the topic. She did so in a notably non-radical fashion. She was appropriate for that occasion. Now, it sounds bad to people who don't hear this sort of thing in the ordinary course of life, but I think it says very little about how racially Sotomayor's mind works or how inclined she is to dispense racial favors from the bench.

Still, those who want law to be color-blind have an fine opportunity to play off that quote. Whether calling Sotomayor a "racist" is the best rhetoric is another matter. I would recommend characterizing Sotomayor's thinking as "racial" (rather than racist). And lets have a real debate about whether law and public policy should have a racial or a color-blind character. It's an important issue, and it can be used to define Obama in contrast to whatever 2012 candidates the Republican Party may produce.