Yes, of course biography matters in a judge
According to Judge Sonia Sotomayor, biography matters. President Obama’s nominee for the Supreme Court believes a person’s gender, ethnic background and upbringing will inevitably affect how he or she interprets the law.
She is absolutely correct.
The jurisprudence of Clarence Thomas is inescapably informed by his personal history, both as a black man and as someone who lifted himself out of poverty. Likewise, the rulings of Antonin Scalia are informed, even if subconsciously, by his strict Catholicism. Chief Justice John Roberts grew up as the son of a Bethlehem Steel executive, an upbringing that at some level had to color his outlook on issues such as management-labor disputes.
After all, Thomas, Scalia and Roberts are human, and we do not stop being human when we don a judge’s robe. Furthermore, the law is not a mathematical construct. Two plus two always equals four no matter who adds it up, but the law is a human construct, subject to human interpretation. So it matters which human does the interpreting.
In a 2001 speech, Sotomayor made the same point, noting that “there can never be a universal definition of wise.” Then came the sentence that opponents want to hang around her neck:
“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.”
Read that carefully. Sotomayor expresses hope that her life experience would make her a better judge than someone who did not have that same experience. There’s nothing controversial in that thought, as the example of Sandra Day O’Connor demonstrates.
In 1981, O’Connor was nominated to the Supreme Court by Ronald Reagan, in part to honor a campaign pledge to name a woman to the court. (Apparently, he saw wisdom in diversity).
Part of O’Connor’s appeal was her biography. She had grown up on an Arizona ranch and had political experience as majority leader in the state Senate. As a woman, she was also a legal pioneer of sorts. After she graduated third in her class at Stanford Law in 1952, no California law firm would hire her (although one did offer her a job as a legal secretary.)
In 1982, soon after joining the Supreme Court, O’Connor wrote the majority opinion in “Mississippi University for Women et. al v. Hogan.” The ruling, which held that the public university could not bar men from enrolling in its nursing program, might seem obvious today, but a quarter-century ago it was not. It came in a narrow 5-4 ruling, with O’Connor casting the deciding vote.
In the opinion, you can hear O’Connor’s gender and biography speaking.
The law, she writes, “must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.”
And if the objective of a law “is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. MUW’s admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.”
Almost two decades later, in her 2001 speech, Sotomayor said she agrees that “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.” She strives for “constant and complete vigilance in checking my assumptions, presumptions and perspectives.”
However, she also acknowledged that is a goal to be aspired to but never achieved by mere mortals.
The Founding Fathers knew that as well. If they believed it possible for a judge to rule solely on the basis of written law, unaffected by personal background, history, experience, etc., we would need only one such wise judge on the Supreme Court, just as baseball requires only one umpire for the simple duty of calling balls and strikes.
Instead, the original Supreme Court convened with six members, a number that has since grown to nine. From the beginning, our Founding Fathers understood that court interpretations are just that, interpretations, and that no single person can overcome their own biases. Biography matters, and the best interpretations are those created by people with disparate backgrounds and life experience.
It’s the nearest we can get to wisdom.
UPDATE: Over at Washington Monthly, Hilzoy tackles the Ricci v. DeStefano firefighter case out of New Haven, involving race and promotions. Basically, Hilzoy writes that Sotomayor and the other appellate judges on the panel followed existing law and precedent in that case, even if that existing law and precedent did not produce the outcome that many would want.
In other words, Sotomayor did not act as an “activist judge” who rewrote the law to reach a desired outcome. That should make her the sort of judge that conservatives say they want.
Except, of course, not.
Also, conservative columnist Rod Dreher, having now read Sotomayor’s 2001 speech in context, withdraws his earlier criticism of the judge and admits he was wrong.
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235 comments Add your comment
ByteMe
May 28th, 2009
8:02 am
Your “everybody does it” argument in paragraph 3 would be better served by at least one example to back up the assertion.
Outcome of the nomination: she gets confirmed, conservatives continue to work on gnawing off their own leg.
jt
May 28th, 2009
8:02 am
“there can never be a universal definition of wise.”
I call B.S. on that.
Maybe a lawyer would believe would fall for that. Or a member of the R & D party.
I Rule You :-)/ You Whine :-(
May 28th, 2009
8:03 am
President Obama’s nominee for the Supreme Court believes a person’s gender, ethnic background and upbringing will inevitably affect how he or she interprets the law.
It sure does-
In writing his decision (Maryland democrat Supreme Court Justice) Taney used what Sotomayor calls the “richness” of his “cultural experience” as a white slave owner to describe Dred Scott and his fellow African-Americans as ” beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations.” Indeed, Taney went on to say that blacks were “so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
So unremarkable did Taney believe his beliefs to be that he ascribed his racial views as “fixed and universal in the civilized portion of the white race…regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”-AmSpec
And not in any good way.
md
May 28th, 2009
8:11 am
I would hope that a wise White man with the richness of his experiences would more often than not reach a better conclusion than a latina female who hasn’t lived that life.
Reverse the wording and tell me how long it would take for the media to pounce on the white man that would have said this. Had any of the sitting Supremes made a statement like this, it is highly doubltful they would now be “sitting”.
I’m guessing the New Haven firefighters don’t agree with your “interpretation” as they have clearly been denied promotions based on race.
Mrs. Godzilla
May 28th, 2009
8:15 am
“Yes, I will bring the understanding of a woman to the Court, but I doubt that alone will affect my decisions. I think the important thing about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.” Sandra Day O’Connor
My own feeling? I have come to accept that based on their physical and mental attributes men are generally better athletes and that women based on their own physical and mental attributes are generally better
jurists. I hope the next 2 or 3 SCOTUS appointees are female.
Brava Sonia.
I Rule You :-)/ You Whine :-(
May 28th, 2009
8:15 am
He should not have accepted the Senate appointment from soon-to-be-impeached Gov. Rod Blagojevich, we wrote, and the way in which he fudged the facts of his negotiations with the Blagojevich camp — failing to come clean about whole conversations and any mention of money — stripped him of credibility.-Chicago Tribune
Since democrats are obviously too corrupted to choose a competent Senator for Illinois, isn’t it time to let We The People pick our representatives?
You’re not skeered, are you?
RB from Gwinnett
May 28th, 2009
8:18 am
You just keep making excuses for her Bookman. You know darn well if a white man had said the exact same thing, you and your cohorts would be screaming like a bunch of sissies.
And that doesn’t even take into account her pathetic record.
But she must be confirmed because the chosen one nominated her and in your eyes, he can do no wrong.
Sheep.
DB, Gwinnettian
May 28th, 2009
8:20 am
Oh, so this is where all the nervous, insecure, castration-anxiety plagued little boys are playing now?
Have fun with your talking point. Gotta run. Just one thing:
And that doesn’t even take into account her pathetic record.
I look forward to hearing more from these intellectual giants about her judicial record, since they’ve obviously been through her cases by now and have developed an informed opinion. Carry on!
Dave R
May 28th, 2009
8:20 am
Actually, Jay, biography should have nothing to do with it. Here is the Oath of Office for a Supreme Court Justice:
“I, [NAME], do solemnly swear (or affirm) 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 as [TITLE] under the Constitution and laws of the United States. So help me God.”
No where does it say the words “based on my experiences, gender or ethnicity”.
Now, to you defense (or copy of someone else’s defense of her opinion regarding the New Haven case. Saying that she was just following existing law and precedence is a poor excuse. Plessy v. Ferguson was bad SC ruling, but using your defense of Sotomayor, a judge could just have easily used that as precedence. Not saying it is right, but just pointing out that there is bad law out there, and he judicial standard in choosing bad law as an example (let’s punish all the achievers because we don’t have a minority in the mix) does not meet the definition of her position – to provide JUSTICE.
Supreme Court justices have but one source for deciding whether a law is interpreted properly – the United States Constitution. That’s it. No biography, no experiences, no race, no gender, no ethnicity.
Oh, and your Founding Fathers reference was a joke. They didn’t want power in the hands of one person, Jay (that whole “we just overthrew a sovereign” thing). Had nothing to do with experiences. Nice try.
I rule Andy
May 28th, 2009
8:22 am
I guess the wingbutternuts think Harriet Meiers is the better choice.
Redneck Convert
May 28th, 2009
8:23 am
Well, a judge on the SC should uphold Conservative laws and turn down librul laws. That’s what this is all about–not if this woman is a racist.
The Founding Fathers set things up so Congress can’t do just anything it wants to do. So we have a kind of 2nd Congress, the Supreme Court. If there’s more libruls on the SC than Conservatives, then librul laws get upheld and Conservative laws get overturned. If there’s more Conservatives than libruls, then Conservative laws get upheld and librul laws get turned down.
I wish people would just be honest and not bring up stuff that don’t have anything to do with this woman’s appointment. We were making alot of progress on the SC before this snake oil salesman got elected President. It was just a couple days ago that the SC overturned this law that kept criminals from talking to the police without a lawyer present. Now things are wide open for turning the SC into a librul court. We need to put special guards on Alito, Roberts, Thomas, Kennedy, and Scalia to keep them from getting hurt. It ought to be against the law for them to fly or go on hunting trips. The rest of them can just do what they want. Maybe a hunting trip with Cheney.
Anyhow, I’m sick and tired of hearing all this fussing about this new pick. We all know what’s going on here and we need to admit it. We need to call a spade a spade and stop this stuff about why a new person is qualified or not. This new person ought not to be on the court. She’s a librul.
That’s my opinion and it’s very true. Have a good day everybody.
md
May 28th, 2009
8:27 am
Judicial record – overturned by supreme court 60% of the time (New Haven outstanding). Only in baseball is that considered doing well. And some posters here question the intellect of others?
Dave R
May 28th, 2009
8:32 am
You know, I rule Andy, your comment would mean so much more if it wasn’t the conservatives that pressured Bush to withdraw Meiers nomination because they felt she wasn’t Constitutionally anchored enough.
Get a clue.
RB from Gwinnett
May 28th, 2009
8:33 am
No, I think Hariett Meyers was a terrible choice. Do you have the same ability to judge things as they are vs. singing the party song all day?
I also think Bush and the R congress spent like drunken democrats for 6 years and poorly handled the war by being too nice.
Can you show the same honesty about Obama?
I Rule You :-)/ You Whine :-(
May 28th, 2009
8:34 am
As President Obama’s Supreme Court nominee comes under heavy fire for allegedly being a “racist,” Judge Sonia Sotomayor is listed as a member of the National Council of La Raza, a group that’s promoted driver’s licenses for illegal aliens, amnesty programs, and no immigration law enforcement by local and state police.
eewwwww
Lord Help Us
May 28th, 2009
8:36 am
MD, Alito was overturned 100% of the time. Ready to have him impeached?
Mrs. Godzilla
May 28th, 2009
8:37 am
md
please review the percentage of reversals on Roberts and Alito.
it should improve your opinion of Judge Sotomayor.
Mrs. Godzilla
May 28th, 2009
8:41 am
Now that the pre-appointment “madlib” talking points have been soundly debunked…..the talking heads are hitting her about the food she eats and how she pronounces her name. Too sad to be funny.
I said it before, the GOP has got to back off this….for their own good.
George American
May 28th, 2009
8:41 am
I go back to what I’ve said before. There are three levels to absolute rule of the earth:
1) The Bible
2) The Constitution (”Have you read it”)
3) The Bill of Rights
This lady, since she is a liberal activist judge, will probably throw all of these rules in garbage and make it up as she goes along. Who does she think she is to rewrite God’s book or the words of our fore-Fathers.
This appointment with the direction of the Obamatang will certainly be the end of this great nation.
ByteMe
May 28th, 2009
8:44 am
md: the Supremes only take up a case if there are enough justices who vote (in private) to hear the case and they do that only because enough justices think there might be reason to overturn, not because they are bored and have nothing better to do. The rest of the cases are considered “confirmed” and the Supremes do not take up the case. The stat I’ve heard for the Supremes overturning at least part of an appellate ruling is about 70-80%. 50-60% is considered excellent.
Go find a new talking point.
ByteMe
May 28th, 2009
8:46 am
That’s “overturning at least part of an appelate ruling for the cases they choose to review“
Doggone/GA
May 28th, 2009
8:47 am
“Judicial record – overturned by supreme court 60% of the time (New Haven outstanding). Only in baseball is that considered doing well. And some posters here question the intellect of others?”
Like those taking her quote about Latina women out of context and trying to use it as proof of something it’s not…you, TOO, are taking her record out of context. She made something like 380 decisions on the Appellate Court. Of those, 5 were accepted by the Supreme Court for review. Of those 5, 3 were reversed. And the Supreme Court’s record on reversals is roughly 60% of the cases they accept. Puts her squarely in the AVERAGE for ALL cases accepted by the Supreme Court.
As I said in the previous entry about her, find a better nit to pick.
ByteMe
May 28th, 2009
8:47 am
I swear George American, you are the best parody poster yet. Sometimes even better than Redneck Convert. Keep up the good work!
SOMALIDAWG
May 28th, 2009
8:47 am
1)Koran
2)Constitution
3)Bill of Rights
حقوق با هم برابرند، همه دارای اندیشه و وجد1
Rickster
May 28th, 2009
8:49 am
I couldn’t care less about her “richness of experience” comment. The one that scares me (and to me disqualifies her for the Supreme Court) is her comment that the appeals court level is “where policy is made.” That is the responsibility of the Executive & Legislative branches. It’s the Judicial branch’s responsibility to determine if the policy is Constitutional – not to implement a new policy of its own.
md
May 28th, 2009
8:49 am
“it should improve your opinion of Judge Sotomayor.”
More fun keeping to my agenda. One must have an agenda to post here or all you folks on the left would just agree with each other and think you were right about everything.
60% is still a fact, funny how context alters any and all situations. I still stand by the double standards afforded her on her comment, as I don’t share her experiences. My experiences say the white guy doesn’t make it out of the Senate hearings for making the exact same comment.
Time to hit and run.
Lord Help Us
May 28th, 2009
8:53 am
Hopefully, md will review the source of his ‘60% cases overturned’ talking point and question why that source only provided the inflammatory, out of context, sound bite.
Then, in the future, he will know that the source is unreliable, and likely, intentionally misleading narrow minds.
One can hope…
Lord Help Us
May 28th, 2009
8:55 am
Oh, nevermind, md cut and run after soiling himself…
CLEAN UP, aisle 4!!!!!!!
Kamchak
May 28th, 2009
8:56 am
3 is 60% of 380? IS THERE A MATHEMATICIAN IN THE HOUSE?
Doggone/GA
May 28th, 2009
8:59 am
“60% is still a fact” Try this on your math skills: 5 cases reviewed out of 380 decisions = .013s% of her total accepted for review. 3 cases overturned out of 380 decisions = .0078% of her total cases overturned. No matter how many times it is said…”60% of her cases overturned” is a LIE. The correct statement is “60% of her cases REVIEWED BY THE SUPREME COURT were overturned” – but even THAT is not enough information. Anyone who repeats that and fails to include the NUMBERS INVOLVED is perpetuating a false impression so vast that it amounts to yet another lie.
jt
May 28th, 2009
9:00 am
“If you were going to have open heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is or by the best surgeon you could find– even if he was born with a silver spoon in his mouth and had every advantage that money and social position could offer?” –economist Thomas Sowell
Mrs. Godzilla
May 28th, 2009
9:05 am
From The American Prospect:
“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.
[...]
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.
This is Samuel Alito, arguing that his experience of being the son of Italian immigrants, his knowledge of discrimination, gives him empathy that offers insight into such cases. How is this qualitatively different from Sotomayor saying that her knowledge of such things might maker her a better judge?”
Read the whole piece here:
http://www.prospect.org/csnc/blogs/tapped_archive?month=05&year=2009&base_name=stuart_taylor_and_pat_buchanan#115277
RW-(the original)
May 28th, 2009
9:05 am
Is this the longer, more thoroughly researched piece or are we getting this in Chinese water torture form?
jt
May 28th, 2009
9:05 am
The big story is the Supreme Court. President Obama has found his nominee. She is Federal Appeals Judge Sonia Sotomayor. A Latino woman. You know what that means — Ruth Bader Ginsburg will no longer be the hot chick on the court.- Jay Leno
ty webb
May 28th, 2009
9:05 am
If she had said “different conclusion” instead of “better conclusion”, that would have been okay. “Better” made it a racist comment, context doesn’t matter. I don’t think it’s going to hold her up anyway. She’ll be confirmed.
RW-(the original)
May 28th, 2009
9:08 am
md,
I say the white guy making that statement wouldn’t even make it to the confirmation hearings. We would also be getting a daily dose here about how anybody that tried to defend said white guy was beneath snake droppings.
Doggone/GA
May 28th, 2009
9:09 am
“If she had said “different conclusion” instead of “better conclusion”, that would have been okay.”
So a “different” but WORSE decision would be “Ok” because you don’t like her choice of the word “better”?
Rickster
May 28th, 2009
9:11 am
You know, I would hope that two different Supreme Court Justices – regardless of race, gender, nationality, religious beliefs – whatever – would look at the facts of a case and come to the EXACT SAME conclusion – based on what the Constitution says, not the “richness of their experience.”
Doggone/GA
May 28th, 2009
9:14 am
“I say the white guy making that statement wouldn’t even make it to the confirmation hearings. We would also be getting a daily dose here about how anybody that tried to defend said white guy was beneath snake droppings”
Your say so doesn’t make it true. If he was talking in the context of the experience of a white male why should there be any outcry of any susbstance?
Brad Steel
May 28th, 2009
9:14 am
Whiner,
Last time I heard someone say “eewwwww” it was in line for the big Hannah Montana show. He had on an “I love Zack Ephron” shirt.
Was that you?
ty webb
May 28th, 2009
9:14 am
Doggone,
Don’t understand your point.
Dave R
May 28th, 2009
9:16 am
Mrs. G., let’s just move past the fact that your copy was from the American Prospect whose description below their title is “liberal intelligence” – and oxymoron if I ever saw one.
The difference between Alito and Sotomayor is that Alito is grounded in Constitutional deference and respect, and Sotomayer does not have that grounding. He would take that history of his family and see if it would be used in a ruling as based on the Constitution, and discard it if it could not be. I believe that she would take that same experience and use it to advance someone over another against Constitutional principles, as in the New Have case.
Doggone/GA
May 28th, 2009
9:16 am
“would look at the facts of a case and come to the EXACT SAME conclusion ”
I guess you just CRINGE then, every time there’s a 5 to 4 decision? What drugs are YOU on, and where can we find them? A nice rosy view of the world like that HAS to be based on some kind of mind altering substance.
Doggone/GA
May 28th, 2009
9:19 am
“Don’t understand your point.”
I refer you to the dictionary to learn the differenct between “different” and “better” A *better* decision is far perferable to a DIFFERENT, but BAD decision.
Kamchak
May 28th, 2009
9:20 am
Rickster
A brother and sister, with the same genetic history, and the same environment for their formative years, won’t come to the EXACT SAME conclusion. “Richness of their experiences” is what we as humans bring to the table in all of our endeavors.
Doggone/GA
May 28th, 2009
9:21 am
“as in the New Have case.”
Isn’t that the one where she based her decision on EXISTING court precedent? The one where she DIDN’T change previously existing court principles? That one?
Mrs. Godzilla
May 28th, 2009
9:21 am
Dave R
If you really could move past it you would not have mentioned it.
Your description of the difference between Alito and Sotomayor is based on your own personal opinion and the richness and fullness of your experience.
Deal with it.
Joey
May 28th, 2009
9:21 am
18+ continuous hours on the same subject. One might conclude:
Jay fears that confirmation of Ms. Sotomayor is not a given.
George American
May 28th, 2009
9:22 am
SOMALIDAWG,
The Koran doesn’t even make the top 10 books for the laws of God. The Bible is #1 by any decent ranking. Even the book of Mormon and L. Ron Hoover’s drivel is ranked ahead of Koran. And God didn’t even write the Koran. It was some guys form the middle east that ghost wrote it. Wanna-be pulp crap. The Koran hasn’t been a factor since the ’80’s.
What sort of squiggly comment do you have about that?
RW-(the original)
May 28th, 2009
9:23 am
Your say so doesn’t make it true. If he was talking in the context of the experience of a white male why should there be any outcry of any susbstance?
Nor does yours, but my life experience makes me come to a better conclusion from unknown facts than someone who lacks those same experiences.
/sarc
Gotta run kidz. See you upstairs for the next installment wherein Jay will probably be promoting Sonia for Sainthood.