The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Monday, June 8, 2009

A Post-Racial Justice

The Question Isn’t Whether a Latina Woman Makes a Wiser Judge than a White Man but Whether She Makes for a Wiser Supreme Court

Immediately following President Obama’s nomination of Appeals Court Judge Sonia Sotomayor as a Supreme Court Justice, alarmed conservatives began warning that she was the personification of a troubling concept repeatedly raised by Obama regarding his personal preference in jurisprudence. To wit, they clamored that Sotomayor was an “empathetic judge,” which meant, in their minds, she was perpetually inclined to favor “the little guy” when pitted against big business or government.

It quickly became apparent much of the American public was no more concerned about empathetic judges in the flesh than they were in concept. Either Sotomayor’s education and experience were overriding considerations or the prospect of empathy humanized the law for them, rather than overturning it as the conservatives warned. In any case, conservatives deemed they needed to ratchet up their criticisms. Thus, the right neatly inflated charges of empathy into racism of the reverse discrimination type.

The chief piece of evidence for this indictment lay in a sentence lifted from a 2001 speech given by Sotomayor before the National Council of La Raza, entitled “A Latina Judge’s Voice,” and subsequently published in the Berkeley La Raza Law Journal. In it, Sotomayor disputes an old maxim of former Supreme Court Justice Sandra Day O’Connor that a wise old man and wise old woman would reach the same conclusion in deciding any case.

Sotomayor argues an alternative perception, noting, in some instances, “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.”

Former Bush Administration advisor Karl Rove insists that statement is offensively racist and Sotomayor should withdraw her nomination. Former Republican Representative Tom Tancredo of California labels La Raza a “Latino KKK.”

Current Republican members of Congress have been quick to distance themselves officially from such invective but concede to finding the remark troubling. Senator Jeff Sessions of Alabama, the ranking Republican member of the Senate Judiciary Committee, asks, “Do [Americans] want a judge that allows his or her social, political or religious views to impact the outcome or . . . a judge that objectively applies the law to the facts?”

The White House defended Sotomayor by contending critics were taking the much-quoted line out of context. Indeed, Sotomayor does state later in her speech that whatever experiences have shaped their bias, a judge’s first duty is to impartial interpretation of the Law.

Conservative columnist Rod Dreher, writing in Beliefnet, admitted that, after reflection, objections to Sotomayor on this point were overblown.

“I'm still a bit troubled by the remark, but not in any important way. Taken in context, the speech was about how the context in which we were raised affects how judges see the world, and that it's unrealistic to pretend otherwise . . . It seems to me that Judge Sotomayor in this speech dwelled on the inescapability of social context in shaping the character of a jurist. That doesn't seem to me to be a controversial point.”

Peggy Noonan, another former Bush Administration staffer agrees with this assessment. She offers this piece of advice to Republican Senators on the Judiciary Committee. “Serious opposition to Judge Sotomayor is not only fair, it's necessary – It's your job to oppose if you oppose. But it should be serious, not merely partisan.”

Consider these statements of judicial empathy by former Supreme Court nominees.

“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.”

“[I believe I could] walk in the shoes of the people who are affected by what the Court does.”

These were the words of Justice Alito and Justice Thomas respectively, two solidly conservative jurists. However, let us give Sotomayor’s statement some additional scrutiny. Why should ethnicity, race, sex or any other background make a difference if judges are supposed to apply law impartially to facts, as Senator Sessions aspires them to do? Sotomayor spends much time in her speech wrestling with this very question and ultimately finds impartiality noble but impracticable.

“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 . . . we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies, and prejudices are appropriate.”

Sotomayor goes on to conclude, “Since judging is a series of choices . . . that I am forced to make, I hope I can make them by informing myself on the questions I must not avoid asking and continuously pondering.”

Her words do not come across as those of a racist or bigot or even an entrenched ideologue but a self-aware intellect honestly attempting to evaluate the extents and limitations of her own biases. We would be lucky indeed if more judges were so scrupulous.

Shelby Steele, a research fellow at the conservative Hoover Institution, finds a new objection to Sotomayor, which he outlines in today’s Wall Street Journal. Per Steele, Sotomayor has consistently displayed “a Hispanic chauvinism so extreme that it sometimes crosses into outright claims of racial supremacy” throughout her career.

This is not Steele’s main thesis, however. Rather it is how her selection reveals Obama as a hypocrite. Regardless of her qualifications, Steele points out Obama chose Sotomayor partly because she is a woman and she is Hispanic. “And yet,” he argues, “it was precisely the American longing for post-racialism – relief from this sort of racial calculating – that lifted Mr. Obama into office.”

From Steele’s perspective, this is simply the old liberal embrace of affirmative action, which holds up a disadvantaged minority group’s “historic grievance as an entitlement to immediate parity with whites – whether or not their group has actually earned this parity through development.”

Apparently, only those who have demonstrated their deservedness should be granted things like equal protection under law or even “Life, Liberty, and the Pursuit of Happiness” in Steele’s worldview. It is political Calvinism, in which the preordained rise to the top. And who would have guessed that diversity would be the prime evidence of our failure at becoming a colorblind society?

We must temper any criticisms of Judge Sotomayor’s possible biases or her reliance upon them in reaching decision by remembering that the United States Supreme Court, like any appellate court, consists not of a single judge but a panel in which majority vote rules. To that end, our principal criterion is how whatever Sotomayor brings with her is likely to affect the group.

It is valid to note that nine white men decided Brown v. Board of Education but this does not prove the law is always impartial to race. Rather it proves nine people are more likely to make wise decisions (eventually) than one person acting alone, much as the current Supreme Court is more likely to make wise decisions overall than would Justice Scalia, Justice Ginsberg, or any other individual Justice acting alone.

Sotomayor’s personal and professional background may not necessarily make her a wiser jurist than Justice Souter, whom she is replacing. However, it is arguable that a Supreme Court containing two women, one of whom is Hispanic, and seven men, one of whom is African American, is likely to make wiser decisions than its previous composition. Studies have demonstrated repeatedly that diversity improves the effectiveness of any group, especially one where all members focus on the same objective, as is the case here.

Sotomayor has more time on the federal bench than any Supreme Court nominee of the past fifty years. It seems highly unlikely that her presence will do anything to pull down the Court’s professional standards. She is a center left liberal replacing another center left liberal, meaning the Court’s ideology will remain unchanged. This leaves only her personal background/biases.

“One must accept the proposition that a difference there will be by the presence of women and people of color on the bench,” Sototmayor concluded in her 2001 speech. She is correct and that difference is likely to be for the better and overdue. A “post racial society” does not mean that race no longer matters but that it is seen for both its positive and negative contributions and that both are kept in the proper perspective.

Conservative grouching over Sotomayor will continue but there is nothing to indicate she will make anything other than an ideal post-racial Justice on this basis.

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