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:
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.
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.
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.