I’m a little late to the party of looking at Judge Sonia Sotomayer, who seems to be on everyone’s short list as a possible replacement for Justice Souter. But, better late than never.
Actually after the reporting of Verum Serum, who unearthed the original article in the Berkeley La Raza Law Journal (S. Sotomayor, “A Latina Judge’s Voice, Vol. 87 ) that others had mentioned and provided extensive quotes from it, there’s not much left to say.
Judge Sotomayor had apparently been on a panel with others, including Judge Mirian Goldman Cedarbaum, a senior judge on the United States District Court for the Southern District of New York, with whom she disagreed on a fundamental and revealing issue, as quoted on Verum Serum:
While recognizing the potential effect of individual experiences on perception, Judge [Miriam] 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 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 most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society….
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….
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 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 experience would more often than not reach a better conclusion than a white male who hasn’t lived that life. [Emphasis added by Verum Serum]
Perhaps some future interrogator can ask Judge Sotomayor to explain what she means by “inherent physiological or cultural differences,” and why she’s not bothered by these racialist notions. In any event, if a cultural difference were somehow “inherent,” wouldn’t that make it physiological and not cultural at all?
Judge Sotomayor claims to “agree with and attempt to work toward Judge Cedarbaums’s aspiration” toward neutrality and objectivity. I wonder what she would say if she disagreed with it?
Jeff Jacoby reminds us today that
JUDICIAL dispassion — the ability to decide cases without being influenced by personal feelings or political preferences — is indispensable to the rule of law. So indispensable, in fact, that the one-sentence judicial oath required of every federal judge and justice contains no fewer than three expressions of it: “I . . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States, so help me God.”
Since Judge Sotomayor pays so much attention to color and ethnicity (and no doubt thinks everyone else does, too), and sees nothing wrong with doing so, can anyone believe a Justice Sotomayor would carry out her duties “impartially”?