Judge in context
Judge Sonia Sotomayor has made some now famous remarks on the role of the appeals court in making policy, and the role a judge’s ethnicity and gender play in their ability to make wise and just decisions. It’s fair to scrutinize all the work and words of a Supreme Court nominee, and important to do so with impartiality.
Steve Chapman has an exceptionally good analysis at RealClearPolitics. He’s concerned it’s Sotomayor who lacks impartiality.
Start with her most famous statement to date:
“I would hope,” she said in a 2001 lecture on law and multicultural diversity, “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.”
The question for her supporters is: How do we spin that? It’s not sufficient grounds to reject her nomination, given her excellent credentials. But it’s still an embarrassment.
One possible way to handle it is a mea culpa by the nominee. She could say, “Let me explain what I meant to say,” or “I used to believe that, but I now realize I was mistaken,” or “Oh, man — what was I thinking?” Any of those tactics would defuse the controversy and allow the debate to proceed to a topic more advantageous to her.
Maybe when she gets to her confirmation hearing, Sotomayor will disavow the remark. But her supporters are taking another tack. They say this criticism is unfair, because critics have taken the quotation out of context and grossly distorted her meaning.
So Chapman looked at what else she said, surrounding that remark.
Her allies have a point. Anyone who reads the whole speech will indeed find that her comment wasn’t as bad as it sounds. It was worse.
What is clear from the full text is that her claim to superior insight was not a casual aside or an exercise in devil’s advocacy. On the contrary, it fit neatly into her overall argument, which was that the law can only benefit from the experiences and biases that female and minority judges bring with them.
She clearly thinks impartiality is overrated. “The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others,” she declared, a bit dismissively. She doesn’t seem to think it’s terribly important to try to meet the aspiration.
That’s apparent from the context. She said, “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge (Miriam) Cedarbaum, our gender and national origins may and will make a difference in our judging.”
Cedarbaum aspires to judicial integrity and fairness by transcending personal prejudices. Sotomayor says…
“Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society“.
(Chapman’s emphasis.)
Which comes alarmingly close to saying:
It’s impossible for female and minority judges to overcome their biases, and it would be a shame if they did.
Here’s the beauty of logical reasoning, it yields truths that are actually hard to miss. Chapman states the obvious:
Underlying all this is Sotomayor’s suspicion that white male judges are bound to treat minorities and women unfairly. She pointed out that “wise men like (Justice) Oliver Wendell Holmes and Justice (Benjamin) Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.”
Sotomayor didn’t seem to notice the damage she had just done to her own argument. The Supreme Court that upheld that gender discrimination claim was composed of nine men — just as the court that ordered an end to racial segregation in public schools was all-white.
The court that upheld affirmative action by public universities had only one black member. There were no women on the court that found constitutional protection for abortion rights.
How may Sotomayor respond to those well-made arguments? We’ll only know if they’re raised in her confirmation hearings.
0 Comment
Yes, this is all true. Deceisions were made that helped root out descrimination with old white men, but does that mean that we were better off then than now? Abraham Lincoln succinctily pointed out that this is government of the people, by the people, and for the people. This is no more apparent than in our courts.
Our jury pool is picked at random and the juries bringing no knowledge of the law but their own experience. But who has not sat on a jury (I hope all do) and not seen the richness of varied experience help to bring a case to light. I have sat in juries where a woman in her sixties knows that a young man in a witness stand is lying, “because I had children of my own!” There is no doubt that white men can rule on cases involving women and rule correctly. But should the richness of a women’s and minorities’ experience and understanding be excluded simply because white men are perfectly capable “thank you” as Rod Steiger said in that thick Mississippi drawl to Sidney Portier in “In the Heat of the Night?” Portier’s character, a black dectective from Philadelphia brought incite and experience to the table that the folks in 1960’s Sparta, Ms. could not attain by themselves. In the same way in “Mississippi Burning” Gene Hackman’s character, agent Rupert Anderson, brings his Southern heritage and experience to use in that case. Sure all white Southerners and all white Northerners can satisfy justice all by themselves, “thank you.” But is our country better for it. Get out the old movie “12 Angry Men” with Henry Fonda. How would the story have played out if it was 8 angry men, 3 woman, and a guy from the south south Bronx?
Yes, we can all agree that white guys are great (I am one and I can tell you we’re fine). But is justice better served when all groups are represented in all steps of the justice system? I think it is.
The question at hand is not whether all groups should be represented in all steps of the justice system or whether Abe Lincoln was a wise man or whether the framers intended to create a government of, by and for the people. No one would argue against such things…obviously.
The question is whether Judge Sotomayor is a person who is ‘perfectly capable’ of making an impartial decision. Is she ‘perfectly capable,’ given the type of vexing legal questions that the SCOTUS must decide on, of reaching a just conclusion…as those nine old white guys did? The hope here is that “a wise old woman and a wise old man, at the end of the day, can reach the same conclusion” whatever their chromosome arrangement.
Judge Sotomayor’s comments indicate that she cannot. Thank you very much.