Posted by Ilya Somin:
Sotomayor's "Latina Judge's Voice" Speech Revisited:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243483882
After some consideration, I have decided that Sonia Sotomayor's 2001
speech, [1]"A Latina Judge's Voice" deserves more extensive analysis
than I gave it in a[2] previous post. I still believe that the speech
shows that Sotomayor thinks that judges can often legitimately base
decisions in part on their racial or ethnic backgrounds. I especially
think that that interpretation is by far the most plausible reading of
Sotomayor's statement that she hopes 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."
However, it would be foolish to overlook the fact that many people,
including serious commentators such as University of Texas lawprof
[3]Frank Cross and Reason's [4]Kerry Howley believe that the relevant
part of the speech is actually innocuous. I can't ignore the
possibility that the speech is unclear, or that I just got it wrong.
At this point, however, I still think that my initial interpretation
was largely correct, and in this post I will try to explain why. For
convenience, here is the entirety of the paragraph where the "wise
Latina woman" sentence occurs:
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.
I. Is Sotomayor's Claim Limited to Discrimination Cases?
Some of my critics, including Cross, argue that this passage merely
means that a Latina judge will, on average, do better than white males
in deciding discrimination cases (perhaps because of her greater
personal experience with discrimination). The first sentence of the
next paragraph does in fact state that we should "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."
However, it seems unlikely that Sotomayor's claim really is limited to
such cases. After all, she made it in explicit response to Justice
O'Connor's far more general statement that "a wise old man and wise
old woman will reach the same conclusion in deciding cases." If
Sotomayor meant to say that O'Connor's argument is correct the vast
majority of the time with the exception of discrimination cases, it is
strange that she gives no hint of that. Moreover, in an earlier part
of the speech, Sotomayor denies that the goal of transcending one's
race in judicial decisionmaking "is possible in all or even in most
cases." That suggests that she believes her argument to have much
broader application than merely to discrimination cases.
Even if Sotomayor's claim really is limited to discrimination claims,
it is still deeply problematic. It is wrong to assume that a judge
belonging to a group that is often victimized by a particular type of
injustice will be generally superior in deciding cases that address
it. Are white male judges generally superior in hearing reverse
discrimination cases such as the one Sotomayor decided in [5]Ricci v.
DeStefano? Are judges who own real estate better qualified to hear
takings claims? Perhaps judges who own businesses are the ones best
qualified to hear claims asserting that an economic regulation is
unconstitutional or otherwise illegal. A judge belonging to a group
victimized by a particular type of injustice might be less likely to
reject similar claims that have merit. On the other hand, she might
also be excessively prone to accept claims that should be rejected or
to ignore important interests on the other side of the case. Which
effect dominates the other will probably vary from judge to judge and
from case to case. In any event, we will likely be better off if
judges assess discrimination cases and other claims as objectively as
possible, while seeking to minimize the impact of their own personal
racial or ethnic backgrounds. II. Did Sotomayor Merely intend to
Recognize the Impact of Judges' Racial Backgrounds on their Decisions,
Without Embracing it?
Other critics, including Howley, argue that Sotomayor merely meant to
recognize the commmon sense point that judges' decisions are sometime
affected by their racial backgrounds, without claiming that this is a
good thing. In one part of the speech, Sotomayor does indeed state the
following:
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.
However, in the very next sentence Sotomayor said that "I wonder
whether by ignoring our differences as women or men of color we do a
disservice both to the law and society." This suggests that it isn't
necessarily a good idea for judges to strive to "transcend . . .
personal sympathies and prejudices." In combination with the
above-quoted statement about the supposed superiority of Latina judges
over white male ones in deciding many cases, it seems that Sotomayor
believes that judges not only take account of their racial background
in making decisions, but are often justified in doing so. Perhaps
Sotomayor also believes that judicial transcendance of personal
sympathies and prejudices is a desirable goal; but since in her view
it is probably impossible to achieve in a large number of cases, it
will often be a "disservice" to pursue it at the expense of denying
the special insights that might sometimes be had by relying on those
"prejudices" after all. That doesn't mean that Sotomayor believes that
a judge's race or gender is a useful resource in all cases or that
impartiality is completely worthless. After all, she said that the
"wise Latina" judge is likely to do better "more often than not," not
that she will have an advantage across the board. However, it's clear
that she does believe that race and gender are useful guides to
judicial decisionmaking in at least a large number of situations.
In addition, if Sotomayor really did merely mean to say that judges
sometimes wrongly take account of their personal background in
deciding cases, there would have been no need to dwell on such an
obvious point at great length - one that hardly any serious
commentator disagrees with. The real question - the one she actually
tried to address - is how we should react to this state of affairs.
One approach - the one I think best - is to try to appoint judges who
will ignore their own racial backgrounds as much as possible and to
strive to promote that as a norm for all judges to follow. Sotomayor's
approach, by contrast, is to endorse reliance on personal background
in at least some cases, and to urge minority judges to offset the
"personal sympathies and prejudices" of their white colleagues with
their own.
Finally, I think it's telling that hardly any one would defend a
similar statement made by a white male judge. As legal columnist
[6]Stuart Taylor puts it:
Any prominent white male would be instantly and properly banished
from polite society as a racist and a sexist for making an
analogous claim of ethnic and gender superiority or inferiority.
Imagine the reaction if someone had unearthed in 2005 a speech in
which then-Judge Samuel Alito had asserted, for example: "I would
hope that a white male with the richness of his traditional
American values would reach a better conclusion than a Latina woman
who hasn't lived that life" � and had proceeded to speak of
"inherent physiological or cultural differences" [as Sotomayor did
later in her speech].
I don't think that Sotomayor is a "racist and a sexist," nor do I
think she should be "banished from polite society." However, her
statement does show that she believes that judges should often base
decisions in part on their personal racial and gender backgrounds. If
a white male judge had said something similar, few would deny that
such (or something much worse) was the import of his words.
Sotomayor's speech should be judged by the same standards.
I would have cut Sotomayor more slack if the statements in question
had been off the cuff remarks rather than part of a prepared speech
delivered as a keynote address at a conference; the speech was also
published in a law journal in 2002, at which point Sotomayor could
have removed or clarified any part of her remarks that didn't really
reflect her considered views. I would also be willing to ignore the
speech if she had repudiated it at any time in past eight years. I
will even give her the benefit of the doubt if she repudiates the more
problematic parts of the speech now (perhaps at her confirmation
hearings). We have all sometimes made mistaken statements that we
admit to be wrong in retrospect - myself emphatically included. But
until that happens, I can't avoid the conclusion that the speech
reveals a troubling element of Sotomayor's view of judging.
References
1.
http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=all
2. http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243346531
3. http://volokh.com/posts/1243454809.shtml#591475
4. http://www.reason.com/blog/show/133724.html
5.
http://www.scotuswiki.com/index.php?title=Ricci%2C_et_al._v._DeStefano%2C_et_al.
6. http://www.nationaljournal.com/njmagazine/or_20090523_2724.php
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