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Would a "Wise Latina" Judge Reach "Better" Results than a White Male?

More comments by Judge Sonia Sotomayor have surfaced that are sure to complicate her confirmation should President Obama nominate her to the Supreme Court. The New York Times reports:

In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge "may and will make a difference in our judging."

In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O'Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

"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," said Judge Sotomayor, who is now considered to be near the top of President Obama's list of potential Supreme Court nominees. . . .

Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges' identities will affect legal outcomes.

"Whether born from experience or inherent physiological or cultural differences," she said, for jurists who are women and nonwhite, "our gender and national origins may and will make a difference in our judging." . . .

In making her argument, Judge Sotomayor sounded many cautionary notes. She said there was no uniform perspective that all women or members of a minority group have, and emphasized that she was not talking about any individual case. . .

Still, Judge Sotomayor questioned whether achieving impartiality "is possible in all, or even, in most, cases." She added, "And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

She also approvingly quoted several law professors who said that "to judge is an exercise of power" and that "there is no objective stance but only a series of perspectives."

"Personal experiences affect the facts that judges choose to see," she said.

UPDATE: Here are my initial thoughts on these remarks. First, it is certainly true that a judge's experience, professional and personal, can affect the way he or she judges in individual cases insofar as it affects the significance placed on particular facts or the extent to which a given situation satisfies a particular legal rule. To take a fairly simple example, a judge's experience could inform whether he or she believes given conduct in the workplace is sufficiently pervasive to create a hostile workplace environment. Likewise, a judge with significant trial experience might review a trial court's findings with a different eye than one who has not. Insofar as various legal rules rely upon contemporary notions of reasonableness, a judge's own experience will inform what he or she sees as "reasonable," even as he or she seeks to render decisions that are consistent with prior precedent. In close cases, a judge must exercise judgment, and judgment is informed by experience, even if the judge is intent upon applying the relevant law as neutrally as possible. This is one reason for appellate review and multi-judge panels. Different people will, in good faith, see close cases differently, even as they try to apply the same law to the same facts. Nonetheless, the number of cases in which such experience should have an influence is quite small, even on the Supreme Court, and judges should not let their personal experiences deflect them a forthright effort to identify the correct answer in any given case. If this is all Sotomayor is saying, no problem.

Based on the Times report — and without the benefit of a videotape or broader context — it seems Sotomayor's comments go beyond the simple observation that experience can influence how a judge sees a case to question the idea of judicial neutrality and endorse the idea that judging is ultimately an exercise of power instead of judgment. Insofar as this is the case, her remarks are troubling. It is one thing to recognize that judges, as people, are fallible and imperfect, and will be influenced by the personal experience and biases (even as they aspire to interpret and apply the law in a neutral and objective fashion). It is quite another to suggest that such neutrality and objectivity is not even an ideal to which judges should aspire, that "there is no objective stance but only a series of perspectives," and therefore a judge's personal experiences are license to impose his or her preferences through an exercise of judicial power. Indeed, if some perspectives are "better" — more authentic, more fair, more progressive, whatever — why shouldn't a judge embrace his or her own perspective, and abandon any pretense of trying to apply the law in a neutral fashion.

UPDATE: The full text of Judge Sotomayor's remarks are here.

Related Posts (on one page):

  1. Sotomayor's Multiple "Wise Woman" Speeches:
  2. Judge Sotomayor's "Unscripted" Moments:
  3. Would a "Wise Latina" Judge Reach "Better" Results than a White Male?
R&R:
Racist!!1
5.15.2009 9:06am
ruuffles (mail) (www):
If the abuse photos reached the supreme court, would Sotomayor have to recuse, due to her involvement in the denial of en banc?
5.15.2009 9:09am
ruuffles (mail) (www):
Her possible nomination looks more and more like a Bork of the left by the day.
5.15.2009 9:13am
SP:
Is there a "wise Latina" perspective on bankruptcy law? I think what I find most stupid in all these debates is that the great bulk of cases the Supreme Court sees are fairly mundane, and certainly not ones where "empathy" or "diversity" play a role. Has the President and Judge Sotomayor actually looked at the Court's docket?
5.15.2009 9:15am
B12:
Wow - this would be termed a "Kinsley gaffe," otherwise known as when a politician (or judge) (damagingly) speaks the truth. Judging is all politics, especially on the Supreme Court; the degree to which politicians pretend it isn't is a consistent absurdity.
5.15.2009 9:15am
Floridan:
"Personal experiences affect the facts that judges choose to see"

Who would find this statement objectionable? If this wasn't the case, then why have more than a single justice on the Supreme Court?

The problem is that some will interpret this to mean that women, Hispanics and blacks will let their personal experiences override their reading of the law. However, why would this not be the case for white males, as well? Are they not a product of their prior experiences, or is the argument that white males are somehow uniquely able to rise above them?
5.15.2009 9:15am
Hannibal Lector:
otherwise known as when a politician (or judge) (damagingly) speaks the truth
There's a difference between recognizing a problem and accepting the problem as a solution.
5.15.2009 9:17am
JB:
Two things:

1) Is there any authentic information (i.e, prtty definitely originating in the White House) that she is at the top of the short list? The effort to discredit her is far more extensive than that directed against any other potential choices--assuming she is not nominated, what are the chances this effort forced Obama's hand as opposed to the chances that the Right has been faked out and Obama's real choice will sail through once the Sotomayor outrage is played out?

2) Does this quote really tell us anything more than we knew already? The left believes that the demographics of a justice will influence their decisionmaking--we knew that. A liberal judge believes as such--that's not really surprising.
5.15.2009 9:18am
rick.felt:
But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges' identities will affect legal outcomes.

Such a thing exists? My goodness.
5.15.2009 9:19am
ruuffles (mail) (www):

Is there any authentic information (i.e, prtty definitely originating in the White House) that she is at the top of the short list?

An official in the white house was sourced as giving six names on the short list. Sotomayor, Granholm, Kagan, Moreno (California SC), Wood, and someone else. This was widely reported a couple days ago.
5.15.2009 9:20am
wfjag:

"Personal experiences affect the facts that judges choose to see," she said.

And here I thought that the jury was the fact finder, not an appellate judge.
5.15.2009 9:20am
rosetta's stones:

...several law professors who said that "to judge is an exercise of power" and that "there is no objective stance but only a series of perspectives."


Great. Let's economize, and throw away everything, and just have a series of judges offering their perspectives and exercising power.
5.15.2009 9:20am
ruuffles (mail) (www):

Is there any authentic information (i.e, prtty definitely originating in the White House) that she is at the top of the short list?

Sorry, I didn't mean to imply Sotomayor was on the top. The list wasn't reported in any order.
5.15.2009 9:21am
ruuffles (mail) (www):
Here is the report

President Obama has narrowed his list of Supreme Court picks to at least six names, with women in five of the top spots, reports CNN. Obama is expected to make a selection by Memorial Day, sources say. Among the finalists: Federal appeals court judges Sonia Sotomayor and Diane Wood; Solicitor General Elena Kagan; Homeland Security chief Janet Napolitano; Michigan Gov. Jennifer Granholm; and California Supreme Court Justice Carlos Moreno.

google news is not working so this was just some random news report.
5.15.2009 9:23am
M.E. Lopez (mail):
"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," said Judge Sotomayor.

I would hope that Jane Seymour might call me up and ask me out to dinner.

But that's not very likely, either.

Why would I hope for this, however? Because it would be good for me! So I can hardly blame this lady for hoping that some situation would obtain that would be good for her. I mean, who wouldn't want to reach better conclusions, and have those conclusions be based on the "richness" of one's experiences? And who wouldn't want to have rich experiences in the first place? That seems fairly uncontroversial.
5.15.2009 9:23am
RHJ:
Many of her comments are reasonable. It is probably true that at least on some cases the perspective of a minority or a woman will matter. However, what I strongly take issue with is that she thinks the minority perspective will be "better". Also, one would hope that while this very may well happen at the state or Federal District level, the COA and SCOTUS justices are wise enough that it won't matter.
5.15.2009 9:23am
bbbeard (mail):

"Whether born from experience or inherent physiological or cultural differences," she said, for jurists who are women and nonwhite, "our gender and national origins may and will make a difference in our judging." . . .



Isn't this the kind of speculation that got Larry Summers hanged out to dry?

And what "Inherent physiological differences" make Hispanic judges better?

You do know what "La Raza" connotes, don't you?

BBB
5.15.2009 9:25am
rick.felt:
And here I thought that the jury was the fact finder, not an appellate judge.

You are correct: the jury is not an appellate judge.
5.15.2009 9:32am
devil's advocate (mail):
I think the questions about judicial temperament are far more serious than honest comments about the possibility of pure impartiality -- not that this purported reliance on prejudiced decisionmaking wouldn't be ratcheted high as an issue in confirmation.

I wonder how SS would react to someone suggesting that the hissy-fit approach to the robes that emerges in some portraits of her conduct might be a result of the very differences she celebrates, esp. gender? I don't mean that as a loaded question necessarily -- any more than Larry Summers did when he waded into gender implications in the realm of academic accomplishment.

This topic is particularly on my mind given that one of the finalists for the position of Chief Justice in Rhode Island, where I park my quill, is a woman who has similar temperamental outbreaks and who brought up gender in a related context.

She had the presence of mind to disingenuously divert questions about the propriety of having a Chief Justice whose husband, less the evident corruption, is the Jack Abramoff character of RI in terms of super lobbyists. She suggested that even asking the question was sexist -- relying on the absurd proposition that if she were the lobbyist and her husband the candidate for Chief Justice the question would not have been asked.

The press, with its usual incisiveness, let that comment stand at face value.

Brian

PS - the linked article does tend to make you wonder if the NYT is weighing against a Sotomayer nomination, or maybe they are just showing that they will criticize a latino woman, least a reputation for criticizing only white men might threaten their impending protected status, i.e. non-profit.
5.15.2009 9:33am
Mikee (mail):
Thinking that the individual perspective of the judge is more important than the words written into law by the legislature, or the words of the Constitution, is inimical to justice.

With this type of "perspective" on the law, may I expect different results for different individuals before the court, based on their race, creed, country of origin, etc., since the law is no longer blind to such things?

After all, I could expect more empathy for my plight as a defendant from someone who is more "like" me, right? No matter what the law actually says?

This is madness, and the antithesis of a rule of law.
5.15.2009 9:33am
Kenvee:
I take no issue with the thought that personal experiences will affect how you view the world. I take serious exception to the idea that the conclusion reached by the minority will be inherently "better" than the one reached by a white male. Actually, I find it offensive. If you want a breadth of experiences, then you need an actual breadth, which believe it or not, should contain representatives of the majority group as well as the minority ones. If what you're really saying is that you only want the "right" experiences, then just be honest about it and say so.
5.15.2009 9:37am
CheckEnclosed (mail):
I wouldn't mind a Judge who said, "I try my best to be objective, but understand that because of my background and perspective I may have blind spots in which my underlying assumptions keep me from achieving that goal."

I wouldn't mind a judge who said, "As a Latina I am more used to viewing things from an outsider's perspective than many white males, and I hope this makes it easier for me to spot, and question otherwise unquestioned assumptions."

The problems is when a judge believes that because perfect objectivity is impossible, it is therefore acceptable to give up the attempt at impartiality and fairness, and explicitly judge based on some agenda, point of view, or background.
5.15.2009 9:37am
RDixon:
"our gender and national origins may and will make a difference in our judging"

Like, we'll have empathy
5.15.2009 9:38am
PatHMV (mail) (www):
"Better"???? I think it clear in context that she means "better for people who look more like me and share more of my ancestral DNA." While I agree that varied perspectives on the Court can and should be taken into account, we should NOT be deciding cases on the basis of how they benefit racial groups, but only on the basis of how the law applies to the particular individuals involved.

What will she do when she hears a case which pits the interests of blacks and latinos, say a black-owned business charged with discriminating against its latino employees or customers? Will her life experiences lead her to conclude that blacks generally don't care for latinos, and so the discrimination probably occurred? Will she sympathize with the life experiences of the latino person more than the black person? Will the results change depending on whether the latino involved in the case is the employer being sued or the employee or customer doing the suing?
5.15.2009 9:42am
Max (mail):
"there is no objective stance but only a series of perspectives."

So, uh, then how do you even know that THAT statement is any more true than its exact opposite? Couldn't it just be the result of one "perspective," whereas another (equally valid, presumably) "perspective" would generate a totally different result?

Relativists usually manage to be relatively certain about their own conclusions. Those of other people, not so much.
5.15.2009 9:46am
JB:
Ruffles,
Precisely. She's on the short list, but the other members of the short list have not received anywhere near the scrutiny and opposition. This suggests to me two possibilities: 1, she's Obama's choice and she's being Borked. In that case, like Geithner and Daschle, she represents a severe miscalculation and vetting failure on Obama's part. 2, someone else on the short list is, and she was included as a lightning rod to exhaust Republican outrage and give the real choice an easier time. In that case, Obama's strategy is working perfectly and he is playing the Right-wing media/blogosphere like a drum.
5.15.2009 9:48am
Houston Lawyer:
I basically object to any nominee who's philosophy appears to be that the personal is the political. How many of the most qualified potential candidates are going to be overlooked to gain favor with some racial and gender interest groups?
5.15.2009 9:49am
sbron:
Welcome to El Futuro. Mass immigration from Latin America aided and abetted by the libertarian right and multicultural left is importing racism. (I realize Sotomayor is Puerto Rican, and hence not an immigrant, but she is allying herself with generic Latinos.) We already see Sotomayor's racism in action in California, where Asian college applicants are discriminated against by the state university system in order to bring in more Latinos, under pressure from Latino legislators. Latino racism reinforced by increasing numbers means that the former gang member and MEChA thug Tony Vilar can become mayor of LA and a potential governor. Sotomayor's bigotry is just as repulsive as that of earlier WASPs who similarly felt themselves entitled because of their ancestry.
5.15.2009 9:51am
Gabriel McCall (mail):
If anybody ever said "I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn't lived that life", he'd be tarred and feathered.

Apparently, bigotry is fine as long as it's the fashionable sort of misandric anticaucasianism.
5.15.2009 9:52am
whit:

"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,"


wonderful example of identity politics and racism. hedged only with "i would hope".

let's play the substitution game

"i would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a latina woman who hasn't lived that life"

would that fly?

lol
5.15.2009 9:52am
ruuffles (mail) (www):

someone else on the short list is, and she was included as a lightning rod to exhaust Republican outrage and give the real choice an easier time.

Sounds like Obama is combining the pull-no-punches primary for his Senate seat (pushed a newspaper to report dirt on his opponent) with Reagan's experiences. In Obama's case, instead of nominating a "Bork" (Sotomayor), Obama gets the same battle except without a nomination. Then he nominates a "Scalia" (say, Wood) and she gets confirmed unanimously (like Scalia).
5.15.2009 9:56am
ruuffles (mail) (www):
* forgot to add that this strategy means Obama would not waste any political capital, when he can ill afford to.
5.15.2009 9:57am
Rock Chocklett:
Just imagine if a prospective white male nominee said: "I would hope that a wise [white man] with the richness of [his] experiences would more often than not reach a better conclusion than a [Latina female] who hasn't lived that life."

Or if a prospective Republican nominee "approvingly quoted several law professors who said that 'to judge is an exercise of power' and that 'there is no objective stance but only a series of perspectives.'"

Those prospective nominees not only would have no chance of actually being nominated (much less confirmed), but they would be held up as the archetypes of all that is wrong in the judicial system.
5.15.2009 9:58am
rokwoneiaoef:
Cf. Richard Posner
5.15.2009 9:59am
Rock Chocklett:
Gabriel and whit beat me to it.
5.15.2009 10:00am
geokstr (mail):

"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," said Judge Sotomayor.

What a monumentally arrogant statement.

Hey, I'm Latina, female and wiser than those white guys, and better too.

Why exactly would the "richness of her experiences" be so much different anyway? Given that here she is a highly acclaimed jurist and being considered for the highest court in the most powerful nation on earth - ever. It's apparent that she hasn't exactly had to pull herself up from the barrio against extreme pressures from the chauvinist pig white male establishment.
5.15.2009 10:02am
B12:
Where's A. Zarkov on this? We need some rank stupidity.
5.15.2009 10:04am
Bart (mail):
Sotomayor was foolish enough to explain what President Obama meant by his requirement that his nominees have "empathy." In short, the desired result is a judiciary that will favor groups that Mr. Obama favors over groups that he does not.

This is a direct assault on the entire concept of an impartial judiciary neutrally applying the laws.
5.15.2009 10:11am
ruuffles (mail) (www):

In short, the desired result is a judiciary that will favor groups that Mr. Obama favors over groups that he does not.

You're assuming he'll nominate her. The desired result might be her getting Borked in advance, orchestrated by the White House. If that's their plan its working pretty well since no one else is getting this much scrutiny.
5.15.2009 10:19am
Frank Dupa, Jr.:
This process of selecting justices based mostly on race/sex is certainly yielding interesting results.

I am reminded of the motto of a California-based high colonic center: We'll Bring Out the Worst in You.
5.15.2009 10:19am
Common sense (mail):
Judge Sotomayor has been a circuit court judge for many years, and a district court judge before that. Instead of throwing a knockdown pitch at the head of the well-respected judge that she would favor excercising power over judgment, Mr. Volukh could have shed more light than heat had he brought his considerable analytical powers to bear on her written record of judgment. Pounding the table tells us little more than that you like to do it, Mr. Volukh.
5.15.2009 10:21am
jsa (mail):
I think too much is being made of this. Isn't all Sotomayor saying is that she hopes "a wise Latina woman" -- i.e. herself -- reaches the better conclusion? I see nothing wrong with a judge saying that she sometimes disagrees with her colleagues and that she hopes her decisions are the correct ones, more often than not.
5.15.2009 10:25am
Desiderius:
JB,

"The left believes that the demographics of a justice will influence their decisionmaking"

It's letting the "will" become "should" that is the problem. And if you think the Sotomayer static is coming exclusively from the Right, you're not paying attention.
5.15.2009 10:28am
JB:
Desiderius,
You're right, the left is objecting to Sotomayor too (making her more of a Harriet Miers than a Bork). But the right is not throwing up anywhere near as much fuss about the other members of the short list. So my question still holds: Is the Obama administration being smart or stupid with the inclusion of Sotomayor on the short list? If he nominates her, the answer is clearly stupid, but if he doesn't then the answer depends on insider information that I'm wondering if anyone has.
5.15.2009 10:32am
Dave N (mail):
Ruufles,

First, judges traditionally recuse when they were part of the decision in an earlier point of the litigation.

Second, I am puzzled as to why Justice Scalia's confirmation is brought up as the counter-example to Judge Bork's.

The reality with the Scalia nomination is that the left chose to battle against Justice Rehnquist's elevation to Chief. The effort was something of a two-fer: If Rehnquist was defeated, there would be no seat for Scalia to fill.

Rehnquist was confirmed by a vote of 65-33--but since Ted Kennedy had demagogued that his opposition to Rehnquist was not based on ideology but rather on other things (a memo Rehnquist had written as clerk to Justice Robert Jackson; an uneforceable racial convenant on the deed to Rehnquist's home, etc.). After supposedly opposing Rehnquist for non-ideological reasons would have demonstrated Kennedy's (and other opponent's) rank hypocrisy if they opposed Scalia on ideological grounds.

And yes, that means if the nominated duo had been Rehnquist and Bork, Bork would likely have been confirmed.
5.15.2009 10:38am
Desiderius:
"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,"

A generous reading would say that she is making the unexceptionable claim that experience (i.e. age and the wisdom it produces) leads to a better conclusion, and that the race and gender are merely accidental details of the particular illustration that came to her mind.

I.e. that she would also agree that a wise Scots-Irish man with the richness of his experiences would more often than not reach a better conclusion than a brown female who hasn't lived that life.

Her comparison might be more persuasive if she allowed the latter the level of detail of the former, but speech is imperfect.
5.15.2009 10:40am
Desiderius:
JB,

"Is the Obama administration being smart or stupid with the inclusion of Sotomayor on the short list? If he nominates her, the answer is clearly stupid, but if he doesn't then the answer depends on insider information that I'm wondering if anyone has."

I don't see it as a smart/stupid issue. Occam's Razor/general decency argues against assuming the primacy of ulterior motives absent evidence of that primacy. In other words, in all her strengths and weaknesses, they see her as one of the foremost candidates for the seat. I don't disagree, but I'd prefer Kagan.
5.15.2009 10:45am
anonoprof (mail):
This is all so much nonsense without knowing the context around the remark that minority viewpoints might be "better" on some issues. In fact, as to some issues that would seem to me to be self-evident.

Some of the objections above, regarding the supposed criteria for this selection are just bizarre. For example: "This process of selecting justices based mostly on race/sex is certainly yielding interesting results."
There are several hundred people perfectly well-qualified to sit on the Supreme Court. Really, there are. As a white male, I see absolutely no problem with focusing on women and other groups when white males currently occupy seven of the nine seats on the Court.
And: "How many of the most qualified potential candidates are going to be overlooked to gain favor with some racial and gender interest groups?"
If the list contained five white males would you ask how many of the most qualified candidates were being overlooked to gain favor with white male interest groups? Why not? Believe it or not, these women are among "the most qualified candidates."
5.15.2009 10:46am
Javert:

You do know what "La Raza" connotes, don't you?
I think you mean "denotes" -- which is "the race."

We need a new statue of Lady Justice -- this one a Latina, holding in one hand a sword dripping with blood, while staring at the other hand that holds the severed head of Lady Justice.
5.15.2009 10:47am
Constantin:
The reference to "physiological" racial advantages advances her statement from stupid to actually racist. I don't see any way in which it is defensible. I am quite sure she, and we, don't want to go down the road where we start making value judgments based on an ethnic group's (supposed) innate abilities.
5.15.2009 10:53am
Desiderius:
"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,"

In a concurring opinion, ladies and gentlemen, Al Campanis.

Have we gained the ability in the last 23 years to hear them out and, with an empathetic ear, attempt to understand what it is they are trying to say? Or do we remain content to use them as props for our own self-righteousness?

That we being neither the royal nor the disingenuous, but the confessional. God knows I've played enough of that gotcha game in my time.
5.15.2009 10:58am
Tatil:

Nonetheless, the number of cases in which such experience should have an influence is quite small, even on the Supreme Court

I disagree. If it was a straightforward case where almost all judges would or should agree on the outcome, the case would not get to the supreme court. There are many important cases that gets decided by 5-4. Are you saying about half the court is composed of bad judges?
5.15.2009 10:59am
dmv (www):

The reference to "physiological" racial advantages advances her statement from stupid to actually racist. I don't see any way in which it is defensible. I am quite sure she, and we, don't want to go down the road where we start making value judgments based on an ethnic group's (supposed) innate abilities.

This sentiment was expresses several times in this thread.

I'll just note for the peanut gallery that it's pretty clear she's talking about gender, seeing as how the sentence continues and includes gender and cultural experiences. So, she mentions cultural and social background as well as physiological differences. She mentions race/ethnicity and gender. Let's not be totally unhinged. Like, say...

We need a new statue of Lady Justice -- this one a Latina, holding in one hand a sword dripping with blood, while staring at the other hand that holds the severed head of Lady Justice.

Because Hispanic people do that, you know. Kill whitey, I mean.
5.15.2009 11:05am
Javert:

I am quite sure she, and we, don't want to go down the road where we start making value judgments based on an ethnic group's (supposed) innate abilities.
Of lack thereof -- see the Civil War.
5.15.2009 11:09am
Javert:

Let's not be totally unhinged. Like, say...

We need a new statue of Lady Justice -- this one a Latina, holding in one hand a sword dripping with blood, while staring at the other hand that holds the severed head of Lady Justice.


Because Hispanic people do that, you know. Kill whitey, I mean.
Are you so unintellectual that you can't see that a sculpture represents a particular world view -- not an entire ethnic group? Your misinterpretation is par for those who see the world through the lens of race/gender/class.
5.15.2009 11:16am
dmv (www):
Javert:

Only as unintellectual as those who can't figure out that by "physiological differences" Judge Sotomayor means gender.
5.15.2009 11:22am
einhverfr (mail) (www):
Without reaching the questin of whether Sotomayor is a good candidate or not, I want to address the question as posed.

First, gender and ethnic background do factor in strong elements in decision making in terms of how one relates to specific issues, plaintiffs, and defendants. I don't think there is a serious question there at all. Beyond Ginsberg's recent comments about the strip search case, let's look at ethnicity as well.

Let's look particularly at Clarence Thomas's approach to life and approach to judging. Until recently, I generally looked at Thomas's jurisprudence through my own approaches to how the law ought to work. This meant I sometimes agreed with him and sometimes did not, but never really understood why he weighed many things the way he did, particularly in cases like Hamdi v. Rumsfeld.

Then I watched the talk linked recently from the VC forum. Here was Clarence Thomas discussing his experiences in life, and how this impacted his specific concerns about the direction American culture is taking. I think his racial background has been very formative in how he approaches life, and hence how he approaches the law. To paraphrase his speech, I think he worries that we are becoming a society which elevates people for behaving like victims, and therefore he is less likely to be sympathetic to someone like Hamdi (unlike the other 8 justices).

Now, this is an argument for diversity of background on the court. You don't hope that a wise latina will reach a better decision in all cases than a wise white male. Instead you hope that they will bring DIFFERENT perspectives into the deliberative process, and that somewhere in this process folks from various different backgrounds will exert positive influences on the outcome.

Now, I am not saying one needs "diversity" based on the checkbox approach which generally has characterized diversity planning in businesses and education. I am saying one needs a genuine diversity of background, and that this ought to include:

1) Racial, ethnic, and religious background.
2) Regional background (we want justices to have lived in a variety of parts of the US, not just big cities, on the coasts, of etc.)
3) Socioeconomic background.
4) Professional background. Even if we limit it to lawyers (and I would actually favor having a token non-lawyer on the court), it should include former law professors, former JAG's (especially when we are looking at questions like due process for detained foreigners who are accused of terrorist activity), former state appellate court judges, former circuit judges, former federal appellate court judges, former public defenders, former DA's, and the like.

This goes back to an idea that I have that the folks on the court should have folks on the bench who can grasp the issues in empathetic ways to both parties and bring their understandings into the deliberative process where they get challenged by justices who have empathies on the other side. The question thus ought to be what level of real diversity of background an individual brings to the court rather than the checkbox approach.

If Sotomayor is nominated, I will form an opinion and write my congressmen after listening to the confirmation hearings. Lawyers are generally careful about what they say so you can get a great deal of insight into how a lawyer thinks when asking hard questions about judicial philosophy beyond the simple answer itself. None of the comments thus far have reached to specifics of judicial methodology, and thus I think it is premature to form a firm opinion.
5.15.2009 11:24am
David M. Nieporent (www):
Judge Sotomayor has been a circuit court judge for many years, and a district court judge before that. Instead of throwing a knockdown pitch at the head of the well-respected judge that she would favor excercising power over judgment, Mr. Volukh could have shed more light than heat had he brought his considerable analytical powers to bear on her written record of judgment. Pounding the table tells us little more than that you like to do it, Mr. Volukh.
Well, your post tells me that you don't read very carefully, since (a) there is no such person as "Mr. Volukh," and
(b) Mr. Volokh didn't write this post.
5.15.2009 11:30am
William Newman (mail):
If you don't subscribe to Berkeley La Raza Law Journal, you can find more context online from Verum Serum (h/t Discriminations). I saw that link some days ago and thought about posting something about it. Now the MSM has beaten me to it, how humiliating.

Besides the obvious comment about the political firestorm which would follow from that kind of demographic self-congratulation by a wise white male, I thought it was noteworthy how Sotomayor holds an opponent to an impossible standard in one sentence, then excuses herself from the same standard in the next. "Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases... I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." So Justice O'Connor referring to "wise" is bad, because "wise" can't be universally defined by some impossibly rigorous standard. On the other hand, Sotomayor is free to refer to "better," apparently because we all have a commonsense understanding of what is meant by "better."

In my experience, lawyers don't lose the human temptation to use double standards. They do, however, usually learn that when one yields to the temptation, the argument is too easy to shoot down unless wrapped it in a certain amount of annoying bobbing and weaving and dodging. Here Sotomayor doesn't bother with the usual annoying dodging, settling for annoying complacent wallowing instead. This doesn't seem like evidence that she's a dim bulb: I know very smart people who argue like this, and I seem to remember Bork publicly making an argument which had a similar structure. (Though I can't find the Bork passage with Google, so take that last bit with a grain of salt.) But it does seem like suggestive evidence that Rosen's annoyingly unsourced allegations of arrogance and sloppiness have some basis in fact.
5.15.2009 11:32am
Constantin:
Only as unintellectual as those who can't figure out that by "physiological differences" Judge Sotomayor means gender.

On what do you base this smugness? Read the entire paragraph in the speech as reprinted in the follow-up post, and then tell me she's not conflating the race and gender issues into one matter referred to by physiology.
5.15.2009 11:34am
GSC:
"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."

Isn't it possible that she said this with her tongue firmly implanted in her cheek. Said in the right way, this is a laugh line. She's pointed out that different backgrounds affect the conclusion, and now she jokes that a wise Latina woman (e.g., herself) will reach better conclusions. It seems like a joke to me.
5.15.2009 11:35am
Joseph Slater (mail):
David M. N.:

Nice catch on the mistakes in attribution, but I think the poster's substantive point remains. I have no brief for or against Sottomayor, but if she really is as crazy/racist/lawless as some would make her to be from this comment (which, FWIW, I don't agree with), we might expect to see that in her actual record as a judge.

I haven't reviewed her actual record as a judge, but my guess is we will get a much better sense of what she might do if appointed and confirmed to the S.Ct. by looking at that.
5.15.2009 11:39am
dmv (www):
Constantin:

I did, and I still think the same thing.

I think people who either don't want Sotomayor on the bench, don't want a Latina on the bench, don't want a woman on the bench, don't want a liberal on the bench, or just don't want anyone Obama would pick on the bench (I think there are probably some in each camp, but I don't claim to know who is in which one) will read anything Sotomayor says in the worst possible light. In fact, that is precisely what has happened up until now, and I have no doubt it will continue. I have no smugness about this. I'm just returning people's unhinged remarks.

If you want to know the truth, I have been and am pulling for Judge Diane Wood to get the nod. But I still think people are, intentionally or unintentionally I don't know, interpreting what Sotomayor says in the worst way possible. I'm not a big fan of that.
5.15.2009 11:49am
rosetta's stones:

I don't see it as a smart/stupid issue. Occam's Razor/general decency argues against assuming the primacy of ulterior motives absent evidence of that primacy. In other words, in all her strengths and weaknesses, they see her as one of the foremost candidates for the seat.


The presence of Granholm's name on that shortlist does indicate the primacy of ulterior motives in the creation of that shortlist. There is no way this occurs otherwise.

Granholm is absolutely unaccomplished, in the law and otherwise, and a product of the corrupt Wayne County political machine of Ed McNamara, aka "Big Ed", aka "King Edward", aka the guy who mentored Kwame Kilpatrick and Mike Duggan, Big Ed's enforcer and former Wayne County prosecutor, forced from office by the same political hooliganism that sent a few other of Bid Ed's cronies to jail, and would have had him there as well, if he hadn't scraped together enough influence to get Granholm elected state attorney general so as to call off the dogs, until he could end the investigation... by dying.

But then, political machines have ways of getting things accomplished, so we shouldn't be surprised when such names show up in high office, should we? Even incompetents like Granholm can make it that way.

Shortlists have a purpose, always. Let's hope Granholm's purpose is detached from any serious consideration of her for a seat on the SC. Big mistake, that would be.
5.15.2009 11:54am
jeffry house (mail):
Judge Sotomayor says objectivity is an "aspiration", in other words, it is a norm to which she aspires as a judge.

She then acknowledges that judges have feet of clay, or rather, feet firmly planted in the experiences which life has given them.

This to me seems to be an honest attempt to try to describe what actually occurs in life on the bench.

I hope no one would oppose judge Sotomayor because she tries to be honest. We need that as much as we need "totally objective" judges.
5.15.2009 12:03pm
caryatis:
Several commentors have pointed out how odd it would sound if Sotomayor called for the wisdom of a 'wise white' man--but
the two statements are qualitatively different.

A lot of people would be upset if there were no whites and/or no men on the court. But there will always be white men on the court, at least in my lifetime. There is a real danger of having no women or Latinos. That's why calling for a Latin woman is more defensible than calling for (another) white man.
5.15.2009 12:08pm
JB:
GSC,
"Isn't it possible that she said this with her tongue firmly implanted in her cheek. Said in the right way, this is a laugh line. She's pointed out that different backgrounds affect the conclusion, and now she jokes that a wise Latina woman (e.g., herself) will reach better conclusions. It seems like a joke to me."

There is a time and a place for each type of humor. Most jokes are funny in some contexts and not in others. Subtle sarcasm is not funny in the context of upcoming confirmation hearings for high-profile politicizable positions. You are accusing her of a shocking degree of tone-deafness here.
5.15.2009 12:09pm
JB:
EDIT: These remarks were made 8 years ago. I apologize to GSC--they were not made in the context I wrote my above comment thinking they were in.
5.15.2009 12:10pm
Rock Chocklett:
I think Jonathan's update helps clarify the point of his post. If Judge Sotomayor were simply making a descriptive comment that judges' race, gender, and background affect the way they reason, then her point isn't that controversial. If, however, she makes a prescriptive comment that judges should intentionally rely on these characteristics as a way of reaching decisions and that certain judges' characteristics are more suited to reaching the best decisions, then her statment is especially troubling. I think she's making a prescriptive comment, given her skepticism of impartiality and her approval of the notion that judging is an exercise in power.
5.15.2009 12:12pm
Mikee (mail):
Sotomayor says: "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..."

This is inherently racist. That she is honest about her racism is no excuse for it.
5.15.2009 12:15pm
common sense (www):
For those calling for an analysis of her opinions, Eric Posner posted a statistical breakdown earlier. Although it has its problems, it does raise some interesting issues. Personally, I don't understand the excitement right now; I will wait to see who is actually nominated before I go hunting for opinions on Westlaw.
5.15.2009 12:30pm
dmv (www):
Or, you know, rather than the faux-scientific "statistical analysis," you could look at this, an "extensive[] review[] [of] Judge Sotomayor's opinions."
5.15.2009 12:41pm
Clayton E. Cramer (mail) (www):

There is a real danger of having no women or Latinos. That's why calling for a Latin woman is more defensible than calling for (another) white man.
Except no one (except maybe the KKK) is calling for another white man on the Court. I don't care about race or gender; I care about respect for the Constitutional and originalism.

There's a word for people that are obsessed with race, you know.
5.15.2009 1:13pm
FWB (mail):
Honor. Integrity. Blind justice.

Not on Earth!

It matters not one's ethnicity, one's religion, one's anything. Without honor and integrity, one cannot be a proper judge.

Tiochfaidh ar la!
5.15.2009 1:14pm
A. Zarkov (mail):
"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,"

Sotomayor thus stands opposed to the central dogma of multiculturalism: all races and ethnic groups are equivalent in every sense that really matters. She asserts along with the brown supremacist group La Raza (the race!) that a Latina judge would have a richer set of experiences and reach better conclusions! Or, my race and sex are superior to whites and men. I suspect that she will have to backtrack on this one pretty quickly. I would like to see her proofs that Latinas stand out from the pack. Sotomayor sounds shaman Don Juan Matos in Carlos Castaneda's A Separate Reality.
Carlos can look but he really does not "see." "You don't see, you only look at the surface of things." He tells Carlos that when one "sees," one sees human beings as "fibers of light."
Just what we need-- some magical thinking on the Supreme Court. But haven't we had enough of that already?
5.15.2009 1:19pm
dmv (www):

Just what we need-- some magical thinking on the Supreme Court. But haven't we had enough of that already?

A. Zarkov endorses an atheist for the Supreme Court.

Well-played, sir.
5.15.2009 2:01pm
bbbeard (mail):
Javert: I think you mean "denotes" -- which is "the race."

Actually, I chose "connote" deliberately.


con-note (kuh noht') v.t.
1. to signify or suggest (certain meanings, ideas, etc.) in addition to the explicit or primary meaning: To me, a fireplace connotes comfort and hospitality.


In addition to the literal translation "the race", "La Raza" involves a complex of racist stereotypes about the relation between Hispanics, particularly Mexican-Americans, and "Anglos" ("Gringos"). If you want some insight into this, go visit the Wikipedia entry on La Raza and click on the "discussion" tab. The violent, racist ideology of La Raza advocates is a subject of perpetual strife (which doesn't surface on the main page, owing to the way Wikipedia handles controversy).

So, yes, I meant "connote".

BBB
5.15.2009 2:28pm
PQuincy1:

It is quite another to suggest that such neutrality and objectivity is not even an ideal to which judges should aspire, that "there is no objective stance but only a series of perspectives,"


Obviously, Justice Sotomayor's comments here touch on some pretty deep philosophical issues about law and language. Still, given that the entire enterprise of litigation and judging involves resolving conflicts -- and, as an appellate or SCOTUS judge, most of the conflicts are not about 'facts', but about the meaning of the law itself -- it's hard to make a straightfaced argument that judges should simply 'apply the meaning of the laws'. If the meaning of the laws was transparent, then there would be no need for appeals courts, and no split decisions among them, ever. To call for 'objectivity' in the interpretation of the laws is to deny that laws need to be interpreted, isn't it? Religious fundamentalists apply this approach to their scriptures, but it's notable that even within one scriptural tradition, they are constantly unable to agree on their interpretation of the 'objective' meaning of a text, even as they vociferously announce that texts have 'objective meanings'.

Another commenter stated (as far as I can tell, without meaning to be ironic):

If you want a breadth of experiences, then you need an actual breadth, which believe it or not, should contain representatives of the majority group as well as the minority ones.


In that case, the appointment of Justice Sotomayor is not likely to raise any problems for this commentor: the other eight current justices include, by my count, 7 members of the ethnic majority in this country, not to mention consisting of 7 men and one woman. Adding one Latina woman means that the courst will most certainly still "contain representatives of the majority group"!
5.15.2009 2:40pm
einhverfr (mail) (www):
Rock Chocklett:

If, however, she makes a prescriptive comment that judges should intentionally rely on these characteristics as a way of reaching decisions and that certain judges' characteristics are more suited to reaching the best decisions, then her statment is especially troubling.


I don't think that she is. However, I still find it troubling because it suggests a level of... arrogance... about her background that it is hopefully better than most of the other folks on the court.

I find this troubling because it suggests she might not be very open minded during deliberations. If the comment was "I bring helpful perspectives to the court" that is one thing. But that isn't what she said.
5.15.2009 2:41pm
levisbaby:
The best evidence in favor of her is that so many obvious wingnuts are driven to distraction by the mere thought of her being on the Supreme Court.

Viva!
5.15.2009 2:43pm
Javert:

If the meaning of the laws was transparent, then there would be no need for appeals courts, and no split decisions among them, ever. To call for 'objectivity' in the interpretation of the laws is to deny that laws need to be interpreted, isn't it? Religious fundamentalists apply this approach to their scriptures, but it's notable that even within one scriptural tradition, they are constantly unable to agree on their interpretation of the 'objective' meaning of a text, even as they vociferously announce that texts have 'objective meanings'.
So then I'm free to interpret your statement as a defense of objectivity?
5.15.2009 2:47pm
einhverfr (mail) (www):
Javert:

So then I'm free to interpret your statement as a defense of objectivity?


See my post on the other thread relating to this topic.

Just because we can understand that, for valid epistemological reasons, there is no objective interpretation does not mean that we MUST therefore give free rein to the imagination.

If there is no single, objective interpretation and we still desire to live in a country where the laws are not just made up as the judge decides, then it is all the more important to have every decision grounded in judicial tradition and the texts that are in question.

There is some digression, but we also have structures to keep it from being abused.

Now, you are free to read anything you want into my post, but that does not mean your reading has merit as judged by a reasonable reader who can communicate reasonably effectively in English.
5.15.2009 5:19pm
Perseus (mail):
Just because we can understand that, for valid epistemological reasons, there is no objective interpretation does not mean that we MUST therefore give free rein to the imagination.

It also does not mean that we MUST NOT therefore give free rein to the imagination. That is the problem.
5.15.2009 5:38pm
whit:

Isn't this the kind of speculation that got Larry Summers hanged out to dry?



larry summers referenced actual PEER REVIEWED studies, and metric a**loads of data.

furthermore, he didn't say it was true that X. he said studies suggested X, and it was an interesting area of study
5.15.2009 6:07pm
trad and anon (mail):
This process of selecting justices based mostly on race/sex is certainly yielding interesting results.


And this differs from how we did it for the rest of American history how?

This isn't necessarily a defense of the practice, but it's not like selecting justices on the basis of their race and sex is some kind of new development.
5.15.2009 7:08pm
einhverfr (mail) (www):
Perseus wrote:

It also does not mean that we MUST NOT therefore give free rein to the imagination. That is the problem.


Correct. But then the reasons we want judges to be constrained not only by text but by tradition (stare decisis, res judicata, collateral estoppel, and all that) is because we want a legal system which is at least reasonably predictable. None of these principles were initially part of our legal system: they all arose from judges seeking to prevent inconsistent results after the Constitution was ratified. So practical considerations are very, very powerful in this area.
5.15.2009 8:05pm
Danny (mail):
Why should we assume that someone's ethnic background means ANYTHING nowdays? It reminds me of when they thought Thatcher would be a "sweeter, gentler" head of state because she was a woman. Yeah I hope whoever said that didn't bet his house on that one. And in the Bush administration we had confirmation that a black female (lesbian) in a high office can be a conservative warmonger like the rest of them. So we are really kidding ourselves if we look to anything except the individual's background and ideology
5.15.2009 8:29pm
jukeboxgrad (mail):
whit:

let's play the substitution game

"i would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a latina woman who hasn't lived that life"

would that fly?


If you want to "play the substitution game," you should go a step further and imagine the parallel universe implied by the game. That would be a universe where the country, the government and the Court were historically dominated by, and are still dominated by, Latina women. In that parallel universe, it would indeed "fly" for a white male to come along and make the parallel statement you suggested.

In my opinion, there's a strong case to be made that someone who grows up in a world that looks just like them is going to fail to learn certain important things about the world, as compared with someone who's different. That is, I don't think fish necessarily have the best understanding of water.

I think it's very noticeable that the person who does the best job understanding and describing a certain world is often a person who is an outsider to that world. Is it an accident that the biggest Christmas song of all time was written by a Jewish guy? I don't think so. Who wrote a great book describing "Democracy in America?" A French guy.
5.15.2009 8:55pm
Tony Smith (mail):
Sotomayor is in a great line of justices like O'Connor, Ginsburg, Scalia, and Kennedy who have either recognized or made gender- or race-based legal arguments:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy
5.17.2009 5:16am

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