“A Latina Woman Would More Often Than Not Reach A Better Conclusion Than A White Male” And “Judges’ Legal Findings Are Based On Their Own Life Experience As Well As (The Law)”

May 26, 2009 31 Comments ›› Pat Dollard

“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” – Judge Sotomayer

Why are we to believe that being Puerto Rican and female automatically makes one better at understanding the Constitution than being white and male?

NY Times:

WASHINGTON — In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”

In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“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,” said Judge Sotomayor.

Her remarks, at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California, Berkeley, were not the only instance in which she has publicly described her view of judging in terms that could provoke sharp questioning in a confirmation hearing.

This month, for example, a video surfaced of Judge Sotomayor asserting in 2005 that a “court of appeals is where policy is made.” She then immediately adds: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”

The video was of a panel discussion for law students interested in becoming clerks, and she was explaining the different experiences gained when working at district courts and appeals courts. Her remarks caught the eye of conservative bloggers who accused her of being a “judicial activist,” although Jonathan H. Adler, a professor at Case Western Reserve University law school, argued that critics were reading far too much into those remarks.

Republicans have signaled that they intend to put the eventual nominee under a microscope, and they say they were put on guard by Mr. Obama’s statement that judges should have “empathy,” a word they suggest could be code for injecting liberal ideology into the law.

Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges’ identities will affect legal outcomes.

“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”

Her remarks came in the context of reflecting her own life experiences as a Hispanic female judge and on how the increasing diversity on the federal bench “will have an effect on the development of the law and on judging.”

Excerpted from WAPO:

If confirmed, Sotomayor, 54, would be the first Supreme Court justice of Hispanic descent and only the third woman ever to sit on the panel. She grew up in a Bronx housing project, went on to Princeton University and Yale Law School, and has stirred controversy by saying that judges’ legal findings are informed by their own life experiences as well as their legal research. (Read: “As well as the law”)

Obama, too, has said jurists’ life experiences are a key part of their legal makeup. He met Sotomayor in person for the first time Thursday at the White House, administration officials say. After spending the weekend at Camp David, he made his decision to nominate her last night.

However, she is strongly opposed by conservative groups, who — like her supporters — began to issue statements about her nomination even before it was announced. Even the Obama administration has differed with one of her more controversial decisions, which invalidated results of a firefighter promotion exam in New Haven, Conn.

“Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written,” said Wendy E. Long, counsel to the Judicial Confirmation Network, in a statement e-mailed to reporters this morning. “She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.”

Sotomayor was part of a three-judge panel that upheld New Haven, Conn.’s, decision to scuttle a promotions test for firefighters after the results showed no African Americans qualified for advancement. The white firefighters who would have been promoted said the decision violated federal law and their constitutional rights.

The case was appealed to the Supreme Court, and a ruling is expected before the end of this term. The case went to the high court after an unusual dissent by conservative fellow judges on the U.S. Court of Appeals for the 2nd Circuit, who said Sotomayor and two others tried to bury important federal law and constitutional questions raised by the firefighters’ suit in their ruling.

The Supreme Court seemed unlikely to let the decision stand when it heard arguments in the case last month.