Posted by Orin Kerr:
Judge Sotomayor's Lecture," A Latina Judge's Voice":
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242399411
My co-blogger [1]Jonathan Adler points to [2]today's story in the New
York Times by Charlie Savage about a lecture Judge Sotomayor published
in the Berkeley La Raza Law Journal in 2002 about the role of race and
gender in judicial decisionmaking.
I tend to agree with Jonathan's take that some of what Judge
Sotomayor says is entirely unexceptional: surely a judge's personal
experience will naturally impact his or her decisionmaking in some
cases, as it will draw the judge to some conclusions more or less
readily than others. At the same time, I agree with Jonathan that some
of the statements seem to go beyond that commonplace observation into
more normative territory, and there I suspect different readers will
draw different conclusions.
I thought readers (especially those without Westlaw) might be
interested in reading the speech directly, so I have excerpted what I
believe to be the key sections below. As I understand the address, it
was the Mario G. Olmos Law and Cultural Diversity Memorial Lecture
delivered at Berkeley Law School, as the kickoff address for a
conference. Also, by way of context, Judge Sotomayor refers in the
text below to the views of Judge Miriam Cedarbaum, a former colleague
on the District Court bench. Sotomayor's address suggests that Judge
Cedarbaum had taken the view that there was little empirical evidence
that men and women judge differently, and that it was dangerous to
start looking for cultural or innate differences in thinking and
judging between men and woman and caucasians and minorities.
Anyway, here are what I believe are the key sections of the address,
with two paragraph breaks added for clarity. It is available in full
as A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87 (2002).
I intend tonight to touch upon the themes that this conference
will be discussing this weekend and to talk to you about my Latina
identity, where it came from, and the influence I perceive it has
on my presence on the bench. . . .
While recognizing the potential effect of individual experiences
on perception, Judge Cedarbaum nevertheless believes that judges
must transcend their personal sympathies and prejudices and aspire
to achieve a greater degree of fairness and integrity based on the
reason of law. 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. Whatever the reasons why we
may have different perspectives, either as some theorists suggest
because of our cultural experiences or as others postulate because
we have basic differences in logic and reasoning, are in many
respects a small part of a larger practical question we as women
and minority judges in society in general must address.
I accept the thesis of a law school classmate, Professor Steven
Carter of Yale Law School, in his affirmative action book that in
any group of human beings there is a diversity of opinion because
there is both a diversity of experiences and of thought. Thus, as
noted by another Yale Law School Professor--I did graduate from
there and I am not really biased except that they seem to be doing
a lot of writing in that area - Professor Judith Resnik says that
there is not a single voice of feminism, not a feminist approach
but many who are exploring the possible ways of being that are
distinct from those structured in a world dominated by the power
and words of men. Thus, feminist theories of judging are in the
midst of creation and are not and perhaps will never aspire to be
as solidified as the established legal doctrines of judging can
sometimes appear to be. . . .
[3]
To read more, click here.
Whether born from experience or inherent physiological or cultural
differences, a possibility I abhor less or discount less than my
colleague Judge Cedarbaum, our gender and national origins may and
will make a difference in our judging. 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.
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.
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.
That same point can be made with respect to people of color. No one
person, judge or nominee will speak in a female or people of color
voice. I need not remind you that Justice Clarence Thomas represents a
part but not the whole of African-American thought on many subjects.
Yet, because I accept the proposition that, as Judge Resnik
describes it, �to judge is an exercise of power� and because as,
another former law school classmate, Professor Martha Minnow of
Harvard Law School, states �there is no objective stance but only a
series of perspectives--no neutrality, no escape from choice in
judging,� I further accept that our experiences as women and people of
color affect our decisions. 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. Not all women or
people of color, in all or some circumstances or indeed in any
particular case or circumstance but enough people of color in enough
cases, will make a difference in the process of judging.
References
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