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Sotomayor, identity and experience

Jill

I have a piece up in the Guardian about how identity and experience shape the courts, and how Sotomayor’s professional and personal experiences add a necessary diversity to the Supreme Court bench. A taste:

Republicans and conservatives will argue that [Sotomayor’s] nomination is an exercise in affirmative action, and that Barack Obama has effectively posted a “White males need not apply” sign on the doors of the supreme court – a funny complaint about an institution that is almost entirely white and male. Democrats and liberals will predictably trip over themselves arguing that Sotomayor’s race and gender don’t matter, even while race and gender matter.

The reality, of course, is that every supreme court justice comes in with a set of life experiences that are shaped not only by race and gender, but by experiences both professional and personal – it’s just that few people consider that whiteness and maleness are not neutral identities and may shape one’s perspectives and legal opinions just as much as femaleness or non-whiteness. Sotomayor herself has said: “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.” And she’s right.

While that quote is sure to be brought up as evidence that she’s a “liberal activist”, it’s more indicative of the kind of self-awareness and reflection we want in a supreme court justice.

Judges have a marked historical tendency to move left over their supreme court tenures. There remains quite a bit of debate over why there’s such a pronounced liberal shift, and it is no doubt a complex phenomenon. But I suspect it has to do in part with a slow realisation that the law has a real impact on peoples’ lives, and that the law school classroom model of the law as a near-science and justice as consistency is fundamentally flawed and entirely unrealistic. “The law” as an academic exercise is certainly interesting, but one’s view is bound to shift when, as supreme court justice Anthony Kennedy put it, “suddenly, there’s a real person there.”

I think Holly and I were on the same wavelength (I was writing this article while she was writing her post) when it comes to “identity politics” and Sotomayor, so if for some strange reason you haven’t read her post below, you should do it. She fleshes out the idea more thoroughly than I did in my article (oh, to have a brain like Holly…). Enjoy.

Posted in Law

11 thoughts on Sotomayor, identity and experience

  1. Thanks for this, Jill; I thought your piece was a very concise and illuminating overview of some of her major decisions and personal qualifications and characteristics, and a good discussion of the role of personal background/attitudes in influencing jurisprudence. I decided to compare the anti-Sotomayor piece: paragraphs on the horrors of reverse racism, appeals to the authority of a couple right-wing hacks (including someone writing for the National Review Online), and then a pointless conclusion about how terrible everything is. It’s funny, but also a little sad that this was apparently the best they could come up with.

  2. A terrific piece, as non sequitur said. I like the way in which you assuage the mild disappointment that some of us who would have supported someone else (like, say, Kathleen Sullivan, my fav) might be feeling.

    If we get a second Obama term, we could realistically be looking at five Supreme Court nominees. I think of this as a start, not an end, and it’s a start in keeping with Obama’s overall start to his presidency: not as progressive as some have hoped, but still impressive, bold, and refreshing.

  3. Jill,

    I read your Guardian Article, as well as your comments in Holly’s post. Could you perhaps provide some concrete examples regarding how this might work in practice, meaning how being a Latina woman makes her a better Appeals justice? Perhaps you could draw upon the Courtroom experience that you referenced in Holly’s post for examples? I mean, how would her decisions and opinions be different than those of some crusty old ascot-wearing white fellow who did the Exeter-Harvard-Yale thing, but who consistently rules in a way that would be described as politically “progressive?”

    I’m having a hard time seeing this, at least at the appellate level, where the record has already been made, and the litigant isn’t often present in the Courtroom.

  4. If we get a second Obama term, we could realistically be looking at five Supreme Court nominees.

    Wow, do I wish.

    Sadly, I don’t think there’s anything remotely realistic about believing Obama will get to name five SCOTUS justices, even presuming that he serves two terms.

    No president since Eisenhower has gotten five SCOTUS picks, and it’s incredibly rare for such an opportunity to present itself.

    You can rule out three justices right off the bat as potential retirees during Obama’s presidency – Thomas, Alito, and Roberts, as none of these men are over 60 years old.

    Which means he would have to be able to not only replace Souter, but also four of the following five – Stevens, Ginsburg, Breyer, Kennedy, and Scalia.

    I can easily see Stevens and Ginsburg leaving the court during Obama’s tenure. Kennedy is 72, so his retirement is conceivably possible. Breyer is 70, so he’s a possible departure as well.

    But Scalia? No shot in hell does he go quietly into retirement while Obama is in the White House. Only if he dies before January 20, 2017 will Barack Obama get to name his replacement. And while he is 73, keep in mind that even by the end of an two-term Obama presidency, he’ll still be NINE years younger than Justice Stevens is today.

    Sadly, the four ultra-right wingnuts on the high court ain’t going anywhere anytime soon.

    So basically, unless you believe that not only will Stevens and Ginsburg retire on Obama’s watch, but also BOTH Kennedy and Breyer, there is very little realistic chance that Obama will get to make five SCOTUS appointments during his presidency.

    All that said, maybe I’m a horrible human for saying this, but I would enthusiastically celebrate if the cancer named Scalia died while Obama is in office.

  5. I consider myself quite liberal but I am bothered by some aspects of these “identity politics,” primarily because it can manifest itself as a sort of crude politically correct tribalism. The notion that the supreme court must be demographically representative of society at large tends to institutionalize our divisions rather than allow us to transcend them. I do not believe that identity politics of that sort are conducive to a healthy and free democracy.

    Take for instance the quote from Sotomayor in the article. Unless I’m ignoring some important context it sounds as though she is suggesting that the experiences of Latinas are somehow inherently more valid and lead to better judgments than white men. That is different from a proposition which I would agree with – that ceteris paribus diversity of experience is useful in any collabortive setting like the supreme court because it increases the likelihood that correct ideas will enter the process.

  6. Unfortunate, I see what you’re saying, but I think the difference is what Holly delves into in the post below this one — judges are human beings, and their perspectives and beliefs (even about the law) are influenced by their identities and experiences. The problem is that, culturally, we see “white male” as the default, neutral identity, and anyone else as “different.” So if other people cop to the fact that their identity influences their perspective, they’re seen as biased. No one bothers to point out that whiteness and maleness bias you just as much insofar as they do shape your reality and understanding of the world.

    I don’t think Sotomayor was saying that her experience as a Latina is more valid than that of white men. I think she was simply pointing out that we have a legal system constructed by and for white men, and for centuries it’s been interpreted by them to fit into their assumptions and realities. “The law” is not a static force, much as Scalia might want it to be. It’s always kind of funny to me how liberals can point to something like, say, religion and recognize that men shape and build it to their needs, and that contrary to what religious conservatives claim, it’s not static and it does privilege certain voices and perspectives. But ask liberals to apply that same concept to the law — also a man-made force — and there’s a block there, because we’ve all been raised with the idea that “justice is blind.” It’s not. I wish it was, but it’s not.

    I quoted this in the other thread, but I’ll do it again here because I think it’s a really important contribution. This is Laurence Tribe during the Alito confirmation process:

    “Alito seems as decent and fair-minded as he is bright, and I don’t doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual’s unarticulated assumptions about both can be entirely separated when assessing what someone’s addition to the Supreme Court would mean for all of us well into the 21st century. . . . Slogans about just following “settled law” as though it were a computer application, sticking to the text’s “original meaning” as if that were a matter of scientific fact, never “legislating from the bench” as if judges ever think they’re doing that, remaining within an imagined “mainstream,” and by all means respecting precedent . . . offer precious little insight into how a justice might actually approach [future controversies over liberty, equality, personal privacy, and government power].”

  7. I don’t think Sotomayor was saying that her experience as a Latina is more valid than that of white men. I think she was simply pointing out that we have a legal system constructed by and for white men, and for centuries it’s been interpreted by them to fit into their assumptions and realities.

    Uhh that’s not what she said though. She didn’t say that her decisions would be “different” or “more diverse” or encompass a different set of experiences, she stated simply that her decisions would be BETTER than a white man’s. She’s making an explicit value statement with those comments. Maybe its not what she meant to say, but it is what she said, and I think they are entirely inappropriate. A judge’s decisions are certainly influenced by their value system which is tied together with race and socioeconomic class. But stating that one’s race or socioeconomic grouping makes that judge’s legal decisions SUPERIOR (which is what she said) does not follow. It was a statement made in error.

  8. oooookay, I know I’m repeating myself, but here we are again for your viewing enjoyment, I present that special special thing, context:

    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.

  9. Thank you Chava!!

    Rodrigo asked a good question, and as one part of an answer I’ll quote Max Kennerly’s earlier comment about why supreme court justices should have more/varied life experience:

    Any smart, well-trained lawyer can figure out the bulk of SCOTUS cases and will reach the same answer — the question, as Obama put it, is where they fall in the 5% of cases with no obvious “legal” answer, cases that require the application of political thought, which is tempered by experience.

    Think of the oral argument over the stripsearch case — 8 of 9 Justices just couldn’t comprehend why it’s invasive for a 13 year old to strip in front of authorities, or how schools have become high-security zones in the past decade or so. These are simply not issues they encounter in their lives, nor issues they encountered in their careers. Not even close. Now consider that for every issue, from antitrust, to employment discrimination, to punitive damages, to jury selection. These people all come from the same, small world.

    That’s just one example, but take a look at it, and then look at Sotomayor’s civil rights and discrimination decisions. White men, especially highly respected lawyers and judges, have repeatedly demonstrated their incapacity to understand discrimination. Sotomayor has demonstrated the opposite. I wonder why…

  10. Think of the oral argument over the stripsearch case — 8 of 9 Justices just couldn’t comprehend why it’s invasive for a 13 year old to strip in front of authorities, or how schools have become high-security zones in the past decade or so. These are simply not issues they encounter in their lives, nor issues they encountered in their careers. Not even close. Now consider that for every issue, from antitrust, to employment discrimination, to punitive damages, to jury selection. These people all come from the same, small world.

    That’s just one example, but take a look at it, and then look at Sotomayor’s civil rights and discrimination decisions. White men, especially highly respected lawyers and judges, have repeatedly demonstrated their incapacity to understand discrimination. Sotomayor has demonstrated the opposite. I wonder why

    You are making dangerous racial assumptions here. You are assuming that minorities are “more enlightened” than their caucasian counterparts. As somebody who has lived in South America and Africa with several different military regimes and junta states, this assumption is made in error.

    SCOTUS needs minority judges because they bring a DIFFERENT experience to the bench, not because they are “superior” or “more enlightened” or better judges. They are different, not better. You need to understand the difference.

  11. Not really. The point about the strip search case is not about race at all, just about personal experience. And it has nothing to do with people of color in other countries, where they are not minorities.

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