Prof. John Frary: A Conservative Endorsement of Judge Sotomayor
When Judge Sotomayor discusses contrasting view on the significance of race and gender in judicial decisions she cites the arguments of three Jewish women and one black male. Read More...
John Frary: A CONSERVATIVE ENDORSEMENT OF JUDGE SOTOMAYOR
6/25/09
“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
This statement has stirred much criticism from conservatives. Howard Dean and Sen. Harry Reid, among others, defend it by asserting that it is “taken out of context” although both have confessed that they haven’t actually read the context. We all know that “nyah, nyah, taken out of context” is the standard , all-purpose politician’s defense of embarrassing quotes. A simple and effective ploy. Very, very few people will ever take the trouble to examine the context.
All Harry and Howard had to do is Google “A Latina Judge's Voice" and the complete context is there on the screen. I recommend this to all interested citizens connected to the Internet. They will find that, in fact, there is nothing to connect the richness of Judge Sotomayor’s experience to any kind of judicial decision. Her speech refers to eating rice, beans and pork, pig intestines, pigs' feet with beans, pigs' tongue and ears; to dancing to merengue sounds, and to listening to ‘heart-wrenching’ Spanish love songs..In short, “I became a Latina by the way I love and the way I live my life.” That’s all she has to say about her rich experience.
She devotes a large part of the speech complaining about the lack of Latino representation in the court system, e.g., “We have only 10 out of 147 active circuit court judges and 30 out of 587 active district court judges. Those numbers are grossly below our proportion of the population.”
To take the proportionality argument seriously, we would have to know the proportion of Latino judges to Latino lawyers. No statistics are provided, but let that go. It’s true that Latinos are grossly under represented in proportion to their total population. It is also true that Justices Alito and Scalia constitute a disproportionate representation of Italian-Americans on the Supreme Court. Is this a problem?
When Judge Sotomayor discusses contrasting view on the significance of race and gender in judicial decisions she cites the arguments of three Jewish women and one black male. This suggests that Jews are grossly over-represented in elite law schools. Is this also a problem and, if so, what is the solution? Czarist Russia, Poland, Rumania and Hungary once imposed a numerus clausus (“closed number”), limiting the number of Jews in the professions and universities to their proportion of the population; what you might call affirmative action for Christians. I assume Obama’s nominee finds such a practice repugnant, but it is not clear why she should.
The most interesting part of the speech is its review of the arguments for and against diversity of background as a basis for judicial appointment. She gives an adequate presentation of both views but provides very little information on exactly how diverse backgrounds could, would or should affect legal decisions. All she provides as evidence are references to some studies showing that male and female judges are apt to divide along gender lines on sexual harassment cases. The planted assumption here is that the women must be right on such issues and the men wrong. Why should that be assumed? What’s in play here—male insensitivity or female resentment? No way to tell.
This is what she concludes from her review of the diverse perspectives debate
[She wonders] “whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
She accept[s] the proposition that “to judge is an exercise of power.”
[She] “further accepts 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.”
She believes that “No one person, judge or nominee will speak in a female or people of color voice, “ since there is a diversity of thought and experience within every group.
She denies that there is an objective stance “but only a series of perspectives - no neutrality, no escape from choice in judging,"
Judge Sotomayor has more impressive credentials than Judge Souter had. Her personal history is more impressive. There may be brilliant liberal judges, better female judges and brighter Latino judges, but she may well be the best liberal, female, Latina judges available. In political terms President Obama is playing by the same basic rules as Republican presidents.
I favor her appointment. The authority of the U.S. Supreme Court is based on the people’s belief that it is an objective judge of the law, that we are under the rule of law not of judges, and that there is one law for all. If her appointment helps expose these beliefs as fraudulent, the court’s power will diminish or disappear. At this point in history that looks like a good thing.
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