Steve Chapman

In more succinct terms: Sotomayor does not mind, and may even prefer, that the outcomes of cases are affected by the gender and race of the judge (at least when the judge is not white and male).

Judge Cedarbaum, she noted, "believes 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." Does Sotomayor share that noble sentiment? Not entirely.

"Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society" (my emphasis). Which comes alarmingly close to saying: It's impossible for female and minority judges to overcome their biases, and it would be a shame if they did.

Underlying all this is Sotomayor's suspicion that white male judges are bound to treat minorities and women unfairly. She pointed out that "wise men like (Justice) Oliver Wendell Holmes and Justice (Benjamin) 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."

Sotomayor didn't seem to notice the damage she had just done to her own argument. The Supreme Court that upheld that gender discrimination claim was composed of nine men -- just as the court that ordered an end to racial segregation in public schools was all-white.

The court that upheld affirmative action by public universities had only one black member. There were no women on the court that found constitutional protection for abortion rights.

Right or wrong, the justices in those cases clearly strove to put aside their narrow personal interests and uphold the fundamental principles of the Constitution as best they could. Most Americans, most lawyers and most judges, I would guess, believe that's exactly what judges should do. Why doesn't Sonia Sotomayor?

Steve Chapman

Steve Chapman is a columnist and editorial writer for the Chicago Tribune.

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