People—Republicans, actually, which is not the same thing—have asked if this remark means that Sotomayor believes that a judge’s ethnicity or life experience should influence his or her decisions, irrespective of applicable law. Sotomayor has been slow to respond to this question. Prior to yesterday, she seemed to minimize the significance of her remark and emphasized her commitment to following written law and judicial precedent. I have found Sotomayor’s responses unsatisfactory, as I thought there was a point to what she said at Berkeley, and I could not understand her reluctance to make it.
Following the troublesome sentence, Sotomayor said the following:
Let us not forget that wise men like Oliver Wendell Holmes and Justice 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. 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.I find this very close to an acceptable explanation of the troublesome remark. Unfortunately, it contains a couple of additional problematic elements, elements present, no doubt, because the speaker was not thinking of her future Senate hearing to become a Supreme Court justice.
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.
Critics have picked up on this sentence: “Personal experiences affect the facts that judges choose to see.” This ill-phrased statement gives critics reason to ask if Sotomayor believes that judges pick and choose among facts before them based on their life experience or, in the least favorable interpretation, based on their prejudices. A more sympathetic view is that our experiences in life sensitize us to some issues but fail to sensitize us to others. Sotomayor’s use of “choose” was unfortunate. The point she should have been making is that our life experience constrains our vision in ways that we do not explicitly choose.
Also distressing is the final sentence of the passage: “But I accept there will be some [difference in my judging] based on my gender and my Latina heritage.” At yesterday’s hearing, Sotomayor offered an explanation aimed, I assume, at countering this statement. Her background, she suggested, would affect her judging process, not her actual judgments. I understand what she was getting at, but this explanation is nonsensical. If her background affects how she works as a judge, it necessarily will influence her work products. That is the whole point of the last several decades of work in process improvement.
Since Sonia Sotomayor doesn’t seem too good at helping herself—the goal of a Supreme Court nominee these days is to talk at length, saying as little as possible—let me offer a broader defense of her 2001 remarks.
If an intelligent Martian landed on Earth tomorrow who knew our language but had no experience with our culture, that Martian might make an adequate judge in traffic court, at least some of the time. You wouldn’t want this beast on the Supreme Court, however. Why not? Because the law exists within the context of a complex society, a Supreme Court justice needs to understand how the law relates to that society—legal arguments often involve analogies requiring a deep understanding of the culture for their understanding and evaluation—and how a particular judgment might affect society going forward. The Supreme Court hears the tough cases for which the law, as written and heretofore interpreted, is somehow inadequate. Having extensive life experience is therefore invaluable to a Supreme Court justice, where the insights gained therefrom are especially needed. We’re not talking about indulging prejudices, but about have as good a grasp as possible of the nuances of society at all levels that might be relevant.
How does this relate to the “Latina woman” of Sotomayor’s speech? Surely picking such a person off the street and making her a Supreme Court justice would put no more insight on the bench than would plucking a white male from Harvard Law School. Sonia Sotomayor, however, is living an upper middle class life in the American mainstream. As such, she could be expected to appreciate (and, to some extent, share) the perspective of the Harvard Law candidate. Additionally, however, she possesses an understanding of a completely different slice of American society that the typical white lawyer would not be expected to appreciate in the same way. That understanding is a resource she brings to the judicial process, both to help her understand the issues before the court and the likely consequences of its decisions. This is what could make the judgment of the Latina women better than that of the white male.
Sonia Sotomayor should have said something like the foregoing. I find the argument compelling, inclining me to support her nomination. I am slightly less impressed than I might otherwise be, however, because she has not clearly articulated this obvious argument herself.