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.


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