Friday, May 21, 2010

Maybe Female Judges Are Better

Associate Justice Sonia Sotomayor

The following post is a revised version of a post I originally published elsewhere July 16, 2009. It concerns the controversy last year over Sonia Sotomayor's "wise Latina" comment.  I reproduce it here because of its relevance to the nomination of Elena Kagan to the Supreme Court. I shall explain its relevance in a future post.

According to Dahlia Lithwick, our male-dominated culture has forced women to acquire skills that make them better judges. And now that I read Sonia Sotomayor's 2001 "Wise Latina" speech, I think that Sotomayor may have been presenting a version of Lithwick's argument. (See below for the context of the "wise Latina" remark.)

Sotomayor is not going to defend the comment now, because being confirmed is more important right now than debating a bunch of senators who are feeling defensive. But I think the comment is worth defending because I think Sotomayor is probably right.

I have accepted and articulated a view from which a weaker version of Sotomayor's view follows. Ask yourself, "All else being equal, who is more likely to have a better understanding of the lives and experiences of African-Americans: Barack Obama or George W. Bush?" Common sense tells us that the correct answer is Obama.

What follows from this common-sense view is the following: All else being equal, there is a better chance that a Latina woman will know more about what life is like for Latina women than a white man would know; and if judging requires an understanding and appreciation of the relevant facts, then all else being equal, there is a better chance that a wise Latina judge will be a better judge than a white man in a case involving Latina women.

I've had a number of thoughts about these Senate confirmation hearings, and I wish I had the time to go into them. For example, it's good to see Senator Coburn finally get the smackdown he's been begging for since yesterday when he asked what was in Sotomayor's gut with respect to the Second Amendment—as if Sotomayor's gut is somehow relevant.

From Judge Sonia Sotomayor's 2001 address to the 'Raising the Bar' symposium at the UC Berkeley School of Law (emphasis mine):
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. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging. 
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. 
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. 

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It is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence. ---W.K. Clifford

Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blind-folded fear. ---Thomas Jefferson