In 2001, Sonia Sotomayor delivered a speech to the University of California, Berkeley, School of Law, entitled “A Latina Judge’s Voice”. It was published in the Spring 2002 issue of Berkeley La Raza Law Journal, and has been reproduced by The New York Times this month online. A quote taken from that speech has raised controversy, as conservatives alleged Sotomayor declared her willingness to use race as a means of judging the law. In fact, she argued against that sort of bias.
The controversial quote, part of a discussion on the question of whether every wise old judge shares the same specific type of wisdom, is as follows:
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.
Sotomayor went on to explain that there is a real history in the US judiciary of otherwise very enlightened justices failing to understand the real legal problem of certain types of discrimination. Specifically:
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.
But even there, Sotomayor is not saying that wise old white judges can’t understand the plight of downtrodden groups or individuals whose experience they do not share. She immediately points out that they can and often have, basing their judgments on the law and the guiding principles of Constitutional justice:
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.
So, even demographically uniform courts have rendered rulings that expanded the scope of civil liberties in order to remedy unconscionable historic injustices. And Sonia Sotomayor recognized this, and goes on to explain that every judge must search for that more enlightened part of his or her own intellect, to rise above the limitations of personal experience.
Explaining why the question of what a judge is able to understand about the conditions in which those before them might live is so important, she added:
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.
Her argument is very clearly that, given the fact that human frailty can bias one’s understanding of an issue or a situation, even in some of the most enlightened justices of the past, diversifying the judiciary can help raise the frequency of insightful judgments. The argument is not diversity for diversity’s sake, but a complex critique of the failings that can be seen in some judges.
Sotomayor specifically said she aspires to be better than that:
Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.
So, Judge Sotomayor did not, in fact, argue that her ethnicity, language background or culinary preferences, would be a fair way to bias her judgments according to a leftwing political agenda, as ultra-conservative critics have claimed. Instead, she was explaining her awareness of how heritage can provide insight, but a judge must understand the complications of this dynamic, and seek to achieve a more enlightened approach.
She specifically pledged “constant and complete vigilance in checking my assumptions, presumptions and perspectives”, in order to make judgments that are not biased or unduly influenced by her heritage or life experience. Ultimately, she will explain this during Senate confirmation hearings, because there are plenty of senators who clearly have not read the speech and don’t understand her argument, but it cannot be said that she ever argued that being Latina was “better” than being white or that she favors biased judgments.