In Defense of Judicial Diversity

President Obama’s pick to replace Justice David Souter, Judge Sonia Sotomayor, has come under fire from many conservatives, which was to be expected.  Some of the opposition to Judge Sotomayor stems from this statement she made during a speech, quoted out of context by her detractors:

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.

Before I address the content of her words, here is more of her speech with the “offending” statement included:

Whether born from experience or inherent physiological or cultural differences… 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.¹

Now, within the context of her complete thought, I have no problem with what Judge Sotomayor is saying.  Every human being is an autonomous entity with his or her own experiences and his or her own reactions to those experiences.  No matter how much we might claim to be creatures of pure intellect – and that includes judges interpreting the laws – we are also influenced by our background.  Is it such a stretch to believe that a single mother dependant upon public assistance might have a different perspective on life than a Bush or a Kennedy might have?

Justice is often depicted as being blind – that is, the laws should be applied as written without bias or favor to one side over another.  But if that were the case, we wouldn’t need a judiciary at all – we could invent a computer that would spit out the relevant statutes and prescribe punishments.  Because laws, like anything else created by human beings, are imperfect, they must be interpreted within the context of the times while remaining true to Constitutional principles and restrictions.  Thus, it was possible for the Supreme Court to return the Plessy decision in 1896, but then for the Court to reverse course in Brown in 1954.  In both cases, the laws in play were essentially the same.  And while society had changed to some extent, what made the difference was the judgment of a few that what was once Constitutionally defensible was now Constitutionally forbidden.  We cannot adhere to a strict, fundamentalist reading of our laws.  We must be allowed to take into consideration the circumstances of each individual case, else we risk a Taliban-like model of justice where even the slightest transgression is punished by beatings, torture, physical mutilation, or death.

Justice should not be blind, because in reality, it never has been.  The rich and politically powerful have almost never been held to the same standards as the poor and disadvantaged.  In our capitalistic society, money talks very loudly in the public square, but it also beckons in whispers to our legal scholars, and sometimes they themselves don’t know it.  No, justice should not be blind – but justice can be fair. 

For instance, can a woman who has never known poverty really – I mean, really – appreciate what it means to be poor?  She might have studied poverty in the abstract; she may have donated to charitable causes; but unless she has somehow lived the experience – either through working directly with the poor, or having lived in poverty herself – can she really understand what it is that motivates someone to steal a loaf of bread?  It’s not her fault, of course – she was lucky enough to have been born into relative privilege.  But then how qualified is she to dispense justice, in the case of the woman who has stolen a loaf of bread, in the sense of justice being fair?

So when Judge Sotomayor says that being a Hispanic woman from a poor background may give her an insight into some cases that a white man from a wealthy background might not have, she’s right (and vice-versa, by the way).  Education is important, to be sure.  But experience is at least as, if not more, valuable in our having knowledge about something.  Qualifications for legal office should not be based solely on academic and professional credentials.  A person’s background, her life story, her experiences are just as relevant.

Democracy is a messy thing.  At the end of the day, we will all have to agree on a resolution that may leave one or several factions dissatisfied.  But we need more voices at the table, not fewer, to ensure that all points of view have been considered.  Fewer rich white men on the Supreme Court?  Hell yes!

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¹ Full text of her speech available via the New York Times.