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2001 Sotomayor Speech Provides Additional Insight Into Judicial Philosophy (Exclusive)

Morgen on May 5, 2009 at 12:47 pm

Earlier this week an initial opposition memo was released through various media channels (e.g. Michelle Malkin) with some limited background information on the candidates considered most likely to be nominated by Obama for the open seat on the Supreme Court. Here is an excerpt of what the memo had to say regarding Judge Sonia Sotomayor, who is generally regarded as the front-runner:

Judge Sotomayor’s personal views may cloud her jurisprudence. As Judge Sotomayor explained in a 2002 speech at Berkeley, she believes it is appropriate for a judge to consider their “experiences as women and people of color” in their decision making, which she believes should “affect our decisions.”

I did some additional digging into this and managed to find the full text of Sotomayor’s speech. Unfortunately I cannot provide a link to it as it is not available on the public internet. The speech was actually given in October of 2001 (not 2002). Sotomayor was the keynote speaker at a conference at Berkeley commemorating the 40th anniversary of the first judicial appointment of a Latino to a federal court. The conference was sponsored by the Berkeley La Raza Law Journal, the publication in which Sotomayor’s speech is published.

Since this speech is published in a periodical, I am constrained by fair use guidelines in providing only a limited number of direct quotations. However, a significant portion of Sotomayor’s speech was autobiographical in nature, and in my assessment did not include any noteworthy details beyond which is already known about her background. There is also a large block where she provides details and statistics on the state of Hispanic appointments to the judicial system as of 2001. Here are the most relevant quotes with regards to the statements released earlier this week:

America has a deeply confused image of itself that is in perpetual tension. We are nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud…Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with differences.

While recognizing the potential effect of individual experiences on perception, Judge [Miriam] Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on reason of law. 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 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.

I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that – it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.

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 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 experience would more often than not reach a better conclusion than a white male who hasn’t lived that life. (emphasis added)

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.

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 I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We…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.

All quotations: Berkeley La Raza Law Journal. 87 (2002), “A Latina Judge’s Voice”, S. Sotomayor

I wish I could share more, but I believe what I have quoted above provides the proper context for the initial assessment which was published in opposition to her candidacy. To be fair, I do want to note that the statement she made regarding a Latina woman reaching a better conclusion than a white male is outrageous enough that it may have in fact been a joke. Although since it’s published “as-is” in a law journal I’m not sure she is entitled to the benefit of the doubt on this. The text certainly does not indicate that it was said in jest.

I have only a lay-person’s understanding of law and judicial history, but I suspect the judicial philosophy implied by these statements is probably pretty typical amongst liberal judges. Personally, I wish it seemed that she was actually really trying to meet the judicial ideal of impartiality, and her comments about making a difference are a concern as this does not seem to be an appropriate focus for a member of the judiciary. I look forward to hopefully seeing some additional dissection and analysis of these statements by others in the conservative legal community.

Just one other interesting side note. Judge Sotomayor referenced Harvard Professor Martha Minow on a couple of occasions within her speech as a former classmate. Minow was actually one of Barack Obama’s professors at Harvard Law. In fact, Minow recommended him for his first legal job with Sidley Austin where her father was a Managing Partner. And of course Sidley Austin is where Obama met Michelle. Small world!

John adds: I’ve read the entire document and here’s my take. I’ll boil it down to two points:

  1. Judge Sotomayor chooses her words carefully (which is good) but ultimately seems not to have penetrated very deeply into the issue of race and its influence (which is not so good). On the one hand, she says that we live with a tension between being proud of our heritage (as whatever) while at the same time striving to live in a color-blind society. So far so good. It’s at least a thoughtful approach. But from there on, she never really manages to make any headway. She says that maybe race shouldn’t matter, then says that of course it will. She says we need more minorities on the courts, but then wonders what effect that will actually have, if any. She literally suggests that we’ll find out when we appoint more minorities, as if racial bean counting needs no further justification. In the end, she never really says much of anything, certainly nothing visionary, challenging or particularly insightful.
  2. There is a thread running through the document which is more or less summed up in her statement about “relative morality.” She clearly feels that a judge’s background affects what a judge “sees” (though as noted above even this doesn’t really go anywhere). She says at another point (quoted above) that there is no universal definition of wisdom. I suppose none of this will matter to liberals who largely agree with her on these points, but personally I felt this was exactly the sort of thinking I would not want on the Supreme Court (or anywhere else for that matter). It reminds me of the claims by members of the MSM who, when challenged about their bias, reply that impartiality is their goal though they may never achieve it. Those of us on the right have found that they rarely achieve it and sometimes don’t even seem to be trying very hard. So, for what it’s worth, Judge Sotomayor is firmly in that camp.  Whether she’s able to transcend her own biases will have to be judged on grounds other than this speech.

UPDATED (5/26):

So Sotomayor is Obama’s pick after all. As Ed Morrissey says, sometimes the favorite does win the race. I think in this case, the Administration determined that the political advantage from naming the first Hispanic to the Court outweighed the firestorm of controversy they knew would be stirred up by this speech (among other things).

By the way, did the NY Times crib the info on this speech from us? I’m saying “yes” since we were the “conservative bloggers” they linked to in the article (a link to our “Court is Where Policy is Made” video). Our post on Sotomayor’s Berkeley speech was put up more than week before the NYT article. Hey NYT, do your own damn research.

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