experience does affect how a person might understand the law, and that there
might be an advantage to adding a wise Latina voice into the mix of judges in
America given that they are woefully underrepresented at this point.
Here is the surrounding paragraphs of the sentence (in italics) that has sparked the outrage:
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
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
Newt and Rush seem to believe that there is some platonic ideal of justice that can be constructed, regardless of the subjective lens of the interpreter. History proves that not to be true and that having different voices in the room improves the way justice is meted. Just as Thurgood Marshall’s presence on the bench was
important to bring justice for African Americans in this country after years during which a court made up of only white men remained blind to racial discrimination, so will it be
important to have another women and a Latina – particularly when she has the credentials that equal any candidate for the position.
Funny that a women who was good enough for the Republican
President George Bush 41 is now not good enough for the current Republican
party which will continue to shrink as Latino, Black and other minorities
realize that the tent in the GOP has grown very small – and very white.
This post from Huffington about Justice Alito reinforces my and Judge Sotomayer’s point:
Additionally, Sotomayor’s critics are up in arms over the fact that she has admitted that her ethnic background has an affect on her decision making process. Who does she think she is? Well, as it turns out, she probably thinks she’s being very similar to Justice Sam Alito:
ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. … And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. […]
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.