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Judging Sotomayor

The opinions expressed by columnists are their own and do not necessarily represent the views of

Supreme Court Justice Sonia Sotomayor spoke to the interns of the House and Senate in June of 2010. At a Q&A afterwards, she was asked multiple questions from interns on a wide variety of topics including negative law and utilitarianism, conflicts of legal views and personal views, and the Yale/Harvard situation then pending in the court.

One of my former students, a senate intern, got up to ask a question and was the very last one allowed to speak. He asked her "What should American culture and society look to as the source for just laws?" Justice Sotomayor paused, looked at him for a long time, and slowly said, "What a very interesting question." She then looked at my former student again for a very long time. Finally she very slowly said, "I don't think I've ever thought of that question in that form before."

When she finally got around to answering, Justice Sotomayor proceeded to say that when making decisions, she focuses on the dignity of the individual. She then confessed she didn't know how we all would judge; saying that’s just what she focuses on. It was really fascinating for a young intern to hear. It really appeared to him – and to other interns present - that she really had not asked herself that question before. It reminded me of a speech Sotomayor once gave at UC-Berkeley. I now revisit some of her remarks from that speech – not so much for what it says about Sotomayor but for what it says about the future of America under the leadership of a postmodern judiciary:

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.

This is an important admission on Sotomayor’s behalf. One can imagine how experiences color one’s perception of facts. But is race so central to the judgment of cases that it justifies the avoidance of certain facts altogether? Does race blind us to certain facts? Not according to Sotomayor. It simply justifies the willful disregard of certain facts.

For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach? For all of us, how do we change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

Bizarre isn’t it? In a rambling fashion Sotomayor – a supporter of race preferences – complains that race shapes one’s career path. Only a couple of paragraphs after an admission that her race justifies her willful disregard of facts, she complains that race bias still exists in the courtroom.

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 require. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that 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.

But are our judgments merely the sum total of our experiences? That is what my former student was asking Justice Sotomayor. He wanted to know whether there is some transcendent source of justice to which we turn. Are we to answer to a Higher Authority when we judge? Or do we simply judge in accordance with the narrative of our own experience? If so, how do we ever transcend bias? Is that even a goal to which we aspire?

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.

Yes, there is a danger imbedded in relative morality. It is that it follows our conduct rather than preceding our conduct. It is that it justifies our conduct rather than informing our conduct. And that is precisely why we must search for a source of justice – or a Source of Justice – that is not contingent upon our own perceptions or experiences.

We may well choose to wake up tomorrow and renounce the Law of Gravity. But that doesn’t mean we are free to float among the clouds. Increasingly, judges are doing something similar with the Moral Law. That is why we see a judiciary with its feet now planted firmly in mid-air.

I’m proud of my former Summit Ministries student – the Senate intern who asked Justice Sotomayor that question. But I’m a little disturbed she had never heard the question before. That means no one in the actual Senate raised the question during her confirmation. And that confirms some suspicions I’ve had for quite some time.

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