In the press right now is the possibility of seating a Supreme Court justice who has made a few statements that could quite possibly be found somewhere between legally prejudiced and possibly racist. I will go out of my way and expose myself as someone who doesn’t think this potential S.C. justice is a racist. Let’s quickly examine this.
Here is the context of what has been asked that created the questionable response:
In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
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.
The full context of the speech can be found here:
http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=1&_r=1
So was she contextual legally prejudiced in the scenario she was speaking to, is she a racist or none of the above?
Well, I don’t believe she is being a racist. She is basically saying that she feels that perspective is a byproduct of life and in certain circumstances having a particular perspective will offer greater insight for the purpose of rendering better decisions. In fact, some might ask the question, shouldn’t we want diverse experience within the Supreme Court? Wouldn’t having diverse experiences benefit the court’s decisions?
In the legal system this is unfortunately the wrong question, and Obama being a lawyer won’t likely be promoting this perspective (unless he is hoping to persuade the approval of Congress by creating public pressure to do so.) If it were the right question then she gave the exact wrong answer.
Our judges should be experienced in parsing the law, not in empathizing with the experience of others. If we are looking for criteria for seating people on the Supreme Court then we are looking for people who have the strength to measure out legal judgments that value our laws more than a biased perspective outweighing our understanding of those laws. Perspective should be wrought from having an ability to identify truth, justice, and compliance based on facts with regard to the law and not based on who makes the more compelling emotive argument or worse yet, who is willing to render a “better judgment” simply by their historical or stereotypical vantage point.
Now, imagine the court system!
Let’s imagine you were going to court and the evidence is in your favor. But imagine the prosecutor is amazing at weaving a very relationally emotive message that connects with a jury in such a way as to help bring convictions. You would want lawyers defending you that could dismantle emotive arguments and focus on the facts and the law. Only in the case where the evidence didn’t support you, would you want a jury emoting in your favor. This is why jury selection is so tedious a process. Juries aren’t typically selected because they are diverse (diversity can't be confused with being "representative"... there is a big difference.) They are selected because they have the capacity to understand the issues and do not carry any pre-judgment. If the defense or prosecutor can identify legal pre-judgment (prejudice) then you can be removed from the jury.
Again, if the case is a shaky one then the lawyer might try to find jury members who could be emotionally manipulated by their perspective and experience.
The same is even more true of judges. If prejudice or racism is in question then naturally the people (Congress) who select the grandest “jury” (the Supreme Court) will and should be allowed to ask refining questions. Moreover, judges are not considered "peers" like a jury is considered "peers" to the defendant. This means that "peer" criteria is flat out of the equation for judges. Electing judges on such criteria reduces S.C. justice criteria to political criteria and works against the very nature of the system that has been established.
I say, ask a few more questions and then move on. I don't think she is a racist. She might be biases based on legal pre-judgment and then should be disqualified (even at a more local level.) I can't believe we are suddenly out of good candidate who are both qualified and untainted.
I encourage you to keep watching this case.
Based on the above here is my short of list of unacceptable explanations (if they are offered):
- The court needs my diverse perspective.
- Sure, I think that my demographic stereotype is uniquely special. Here are a few more demographic stereotypes that are now also special and should make me seem less like a racist.
- I am not a racist.
Update:
It is almost entirely true now.
Politico is reporting that some Dems in Congress are pressing for an unprecedentedly quick confirmation of Sotomayor while others are saying, "There is no need to be in a rush."
At the same time Sotomayor is saying that she also supports her friends counterargument with regard to white male stereotypes (i.e. she said that in the speech she made reference to the fact that white male Supreme Court justices were a part of most of the larger civil rights laws of the previous century, but she still gives the majority credit to female lawyers.) This is just her justifying her stereotype by validating another friends stereotype.
(That is like my above second point of unwelcome excuses.)
Someone recently reminded me that if what she said had been spoken by a white person, it would surely be called racist. Let's see how that looks:
I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn't lived that life.
You decide if the above statement would be called racist or prejudice. Feel free to leave a response here.
UPDATED AGAIN:
Ends up that 60% of Sotomayors decisions were overturned by a higher court. Forgetting about stereotypes based on race and gender, that means that the legal system thinks that this particular (specific) Latina woman does not "more often than not reach a better conclusion"... than her peers. So fundamentally her words are at best a sideshow to the fact that she is not qualified to sit on the Supreme Court.
Now, mind you, she is an appeals judge. This means that she doesn't have to sit through long presented cases and come to a decision. She only has to look at the appeal criteria. And so, a lower court would say, "No, you can't," and she would review that and say, "Yes, you can," which would be appealed to a higher court in which six out of every ten appeal decisions would then be overturned by saying, "Ah, no, you can't" and inevitably that would be the outcome. So, fundamentally that might be a measure of poor "judgement."
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