Wednesday, May 27, 2009

Richness of Experience?

Well, well, well.

We are to have a new SCOTUS Justice, Sonia Sotomayor from The United States Court of Appeals, District 2.

In many ways, she appears to be a very good pick.

She has many years on the bench, and prior to that, she was a prosecutor.

She has a good academic record, and although she is not known for legal brilliance, she is the child of immigrants and has the rise from the bottom story that is inspiring to all.

As a citizen, viewing this process from afar, my hope is always for a Supreme Court Justice who reveres the Constitution of the United States, and understands that she (or he) is not a maker of laws, but an arbiter of the Rule of Law, interpreting to us how our legislation relates to the Constitution. And I wish for someone humble as well as smart, someone who recognizes that justice is blind, and is no respecter of persons.

This last is why this Sotomayor quote is troubling:

"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 . . ."

(Sonia Sotomayor, at the 2001 Judge Mario B. Olmos Law and Cultural Diversity Lecture, University of California, Berkeley. Quoted in The New York Times, May 14, 2009).

Judge Sotomayor said this in the context of a remark attributed to Sandra Day O'Connor that "a wise old man and a wise old woman will reach the same conclusions when judging cases."

In my reading of her speech (the whole of which can be found here), I understand that Sotomayor is talking about the idea that women and certain minorities bring their experience to their work, and in this case the work is judging.

But this is true of every individual. All of us who have lived life for a while have rich experience and the potential for wisdom. Those old white men Sotomayor disparages also have the richness of their experiences, as do the five Catholics, two Jews, and one Protestant that Sotomayor will serve with on SCOTUS.

I am NOT concerned that diverse judges will bring their life experience to their work as arbiters of the Constitution. I AM concerned that they should remember that Lady Justice is blind; she is no respector of persons, and that each person's case deserves equal respect under the law.

I am NOT concerned that our SCOTUS justices are individuals from diverse rich backgrounds. I AM concerned that we may have a justice who believes that her background is richer and more "diverse*" than that of the others. Her statement makes me think that she believes that some backgrounds are more equal than others. And if that is her understanding, then how can Sotomayor possibly judge all cases equally under the Supreme Law of the Land, as her oath will require her to do?

*This is a poor, but common use of the word 'diverse.' Diversity means a range of differences, and so any one thing by itself cannot be 'diverse.' That this word is used this way by the progressives suggests an agenda whereby some people are indeed 'more equal' than others.

Certainly, Sotomayor has earned the right to be proud of her life's course and her accomplishments, attained through the surmounting of barriers that others on the Court may not have experienced. But those others may well have surmounted barriers of their own; some barriers of which she may know nothing, and some of which she may share with them.

Each individual has a unique background and set of life-circumstances, unique capabilities and limitations. Our very individuality makes it impossible to fairly judge who has done better or worse, who has had more difficulty or more ease in the attainments of life that can be observed. And this is why, in our Western culture, we have the concept of the Rule of Law: that the law should apply equally to the homeborn and the stranger; that you shall not favor the poor over the rich in judgment. Because we cannot see into the lives and the hearts of individuals, this is the only way to render justice--we make everyone equally accountable under the law.

I am not sure that Judge Sotomayor is willing and able to do that, given her remark that her personal life experiences make her better suited to make judgements than the life experience of others. As time goes on, I hope that we will learn more about her decisions from the bench, thus gaining a richer context for what she has said. In the meantime, we have reason to be concerned.


Mark said...

If you take only that part of Sotomayor's quote, it would indeed be troubling. But she immediately went on to say something which was not included in the main NY Times article:

"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." (Emphasis added.)

Taken in its full context, Sotomayor is actually rejecting the notion that people of certain ethnic backgrounds are inherently more capable of handing down just and fair decisions.

In presenting an incomplete quote, the Times paints a very distorted picture of Sotomayor and her beliefs.

christinemm said...

Hear, hear!

Interpreting the rule of law should be the same no matter what personal traits a person posseses.

Elisheva Hannah Levin said...

Mark: I read the whole speech that I linked to. Some of it is ethnic pride, but there is a good deal of identity politics in it as well. And that is troubling. This was a speech published in La Raza, so one would expect ethnic pride.
I guess she had to call Holmes "wise" after attributing wisdom to her own self in the paragraph prior, but I am not an admirer of Holmes progressive viewpoints, particularly in Buck V. Bell (required reading Sp. Ed. Law courses).

Yes, her speech is self-contradictory to some extent. She first says that she, having lived a rich ethnic life, can decide "better", and then she throws the obligatory crumb: "many are so capable . . ."
In the context of the whole speech however, I hear identity politics that makes me uneasy. And I disagree that she is rejecting the idea that her rich, ethnic experience makes her wise and more capable. That word "better" has more than a touch of arrogance.

Imagine if some old white guy said this:
"I would hope that a wise, Anglo-Saxon man with the richness of his experience would more often than not reach a better conclusion than a Hispanic woman who hasn't lived that life . . ."

He would more often than not be booed off the podium before he could even get to his next paragraph. He would be called racist and sexist. He wouldn't even have the chance to throw a sop to the Hispanics.

In any case, this is a concern. It is unlikely that such a concern alone will stop her confirmation in the Senate, nor should it; their role is to advise and consent, not to churlishly block the appointment. But the issue ought to be raised and keep before the public. Identity politics has no place at the bar of the highest court in the land. Sotomayer must rise to the occasion.

Activities Coordinator said...

Keep singing. The choir agrees. :)

BTW, did you see Craig T. Nelson on Glenn Beck? It's worth a Google.

Rod Hansen said...

This is a very well thought-out post, and also informative: You acknowledge that Sotomayor spent time as a prosecutor, a fact I did not know until reading your entry.

Much has been made of Sotomayor's "Richness of experience" quote, as well it should. The very oath Sotomayor would take as a Surpreme Court justice requires that she not consider the socioeconomic status of the parties before her when deciding a case.

The bottom-line question of the contoversy is whether Sotomayor will decide on lower-court rulings based on their adherence to the constitution, or whether she will use her office to advance a social agenda. I believe everyone familiar with her fabled "life story," including the President who nominated her, already knows the answer.