Pro Sotomayor

Does anyone in all honesty believe that Sotomayor could have lasted as a federal district court judge if she seriously believed that she was a better judge than a white male on account of her race and gender? I don't think that anyone would straight-out admit that they were racially superior to someone else (unless you're the KKK). And besides Sotomayor didn't say that.

Here's a fuller quote from her 2001 speech, as cited by the New York Times (here's another version from UC Berkley):

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 not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. 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 experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Some observations should be made. Firstly, Sotomayor does not say that Latina women are better judges than white men, because that's just as ridiculous as saying that white men are better judges than Latina women. The key here is not pinpointing their race or gender, but looking at their experiences. I interpret her statement to mean that life experiences are a big factor in rendering judgments, and sometimes judges lack insight into cases due to lack of experience in a field. These experiences can be anything from having children (sex offender laws), to going hunting as a child (second amendment rights), to growing up Roman Catholic (putting the Ten Commandments in a state courthouse, or the use of "under God" in the Pledge of Allegiance), and so on. Someone who has an experience like being religious or having children will tend to react differently in these kinds of rulings than someone who is atheist or someone who's childless. Diversity of experiences encourages diversity of opinions, and this wider range of viewpoints helps the court reach a more informed decision. Why else would you have nine justices deciding a case? If they all thought the same things you'd need only one of them.

So, to recap: Sotomayor did not say that Latina judges are better than white male judges. I believe her intent was to say that someone with more life experience in an area can be a more informed judge than someone who lacks that experience. In Sotomayor's case, that can be something like how living in a project in the Bronx will give her a different view on public housing, than, say, John Roberts (who grew up in a house in Indiana). Different judges will bring different points of view to the table, which will in turn influence their rulings. Having more points of view (via bringing in judges with different experiences) encourages a greater variety of opinion and discussion from which informed decisions can be made.

(In this theoretical case on public housing, this is not to say that Chief Justice Roberts's view would be worse or better than Sotomayor's. But Sotomayor could point out something that the other justices may have overlooked or not considered because they never lived in public housing.)

So where does race and sex come into the picture? Sometimes these experiences that influence judges' decisions pertain closely to a person's sex or race; for example, men rarely face sex discrimination in the workplace, and the plaintiffs in racial discrimination suits are rarely white. Just as judges with children tend to rule for tighter restrictions on sex offenders (I haven't conclusively proven this fact, but I assume that it's true), women judges tend (not monolithically, but statistically significantly) to vote in favor of women's claims in cases regarding sex discrimination and search & seizure. (Sotomayor cites two articles from the journal Judicature, but I cannot find those articles online; I will go the library and find out more). I wouldn't call this discrimination by women for women or a proclamation that female judges are better than male ones, but instead a reality that women would in general understand the situations that women face more than men do.

Ruth Bader Ginsberg was very firm on this point, in an interview with USA Today. Regarding 2007 and 2009 workplace sex discrimination rulings against the plantiffs (Ledbetter v. Goodyear Tire & Rubber Co. and AT&T Corp. v. Hulteen), and a 2009 strip search case (Safford United School District v. Redding), Ginsberg lamented that her all-male colleagues lacked perspective on the difficulties women face in the workplace and regarding the right to privacy:

Ginsburg, 76, a former women's rights advocate whom President Bill Clinton named to the high court in 1993, recalled that as a young, female lawyer her voice often was ignored by male peers. "I don't know how many meetings I attended in the '60s and the '70s, where I would say something, and I thought it was a pretty good idea. … Then somebody else would say exactly what I said. Then people would become alert to it, respond to it."

Even after 16 years as a justice, she said, that still sometimes occurs. "It can happen even in the conferences in the court. When I will say something — and I don't think I'm a confused speaker — and it isn't until somebody else says it that everyone will focus on the point."

[...]

Ginsburg said the court's gender imbalance has real, although not entirely obvious, consequences.

"You know the line that Sandra and I keep repeating … that 'at the end of the day, a wise old man and a wise old woman reach the same judgment'? But there are perceptions that we have because we are women. It's a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive."

The differences between male and female justices, she said, are "seldom in the outcome." But then, she added, "it is sometimes in the outcome."

In the larger context of her speech Sotomayor did not say that she (as a Latina woman) is an unequivocally better judge than a white male, but her experiences will cause her to look at things differently from the other justices, who have had different experiences. This is not to say that men can't understand what women face, or that white people cannot understand the issues that racial minorities face. Sotomayor articulates it better than I can in the same 2001 speech:

I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Some may be interested to know that current Supreme Court justice Samuel Alito said some very similar things as Sotomayor in his 2006 confirmation hearings: his personal experiences have shaped his court rulings. His background as a son of Italian immigrants would make him view immigration and discriminations cases differently from other justices, for example.

Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

[...]

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

While this one line in her speech may not have been worded in the best way possible, Sotomayor's intent and beliefs are transparent once one reads the full content of her speech. Sotomayor is not proclaiming racial superiority in judging, but pointing out the fact that a judge's experiences and background will influence and affect their rulings, and acknowledging that this phenomenon comes into force particularly in cases where race and gender are the hot topics.