Critics of the nomination of Judge Sonia Sotomayor to the Supreme Court have made much of her comments in a 2001 speech at the University of California, Berkeley. In that speech, amid a discussion of the continued lack of real diversity on the bench and the crucial role that women and people of color played in groundbreaking civil rights cases, Sotomayor said: “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.—
While she could have worded that sentence differently, her point is straightforward: Experience and background inform judges’ decisions, and the richness of her experience might give her an advantage in understanding particular cases. But the statement has sent conservatives in the media on a tear, with Rush Limbaugh and former Speaker Newt Gingrich (R-Ga.), among others, calling Sotomayor a racist. More tempered critics have accused her of judicial activism, of injecting her personal views into what should be a bias-free act of adjudication.
Her assertion is, in fact, utterly unremarkable. Justice Clarence Thomas, responding to a question at his confirmation hearing about why he “want[ed] this job,— said: “I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does.—
Then-Supreme Court nominee Samuel Alito told the Senate Judiciary Committee in 2006: “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.—
Sotomayor, Thomas and Alito were recognizing a truism: Experiences matter. To deny their relevance in adjudication is to accept the myth of the objective jurist. And it is just that — a myth, an aspiration maybe, as Sotomayor recognized in her speech, but likely unattainable.
Worse, to embrace the myth is to assume that judges who deny any influence on their rulings by their background are better able to rule impartially. It is also to assume that rulings issued by those judges are a manifestation of a neutral, fair and objective application of the law against which others should be evaluated.
In fact, as numerous legal scholars have noted, there is no baseline. Sotomayor made this point in that same Berkeley speech: “[B]ecause as another former law school classmate, Professor Martha Minow of Harvard Law School, states, there is no objective stance but only a series of perspectives — no neutrality, no escape from choice in judging,’ I further accept that our experiences as women and people of color affect our decisions.— To deny the effect of those experiences is not to judge objectively but to fail to acknowledge and consider influences on one’s actions.
Sotomayor notes that experience can both expand and narrow one’s capacity for adjudicating fairly. One must recognize the influence of that experience and use it to inform one’s rulings, but also limit its possible prejudicial effects. A judge who was once a victim of a violent crime must be able to render decisions in similar cases that are not infected by animosity toward her victimizer. As Sotomayor said, “Personal experiences affect the facts that judges choose to see.— That judge must make a particular effort to see all relevant facts, including exculpatory and mitigating factors.
By the same token, a victim of racial discrimination, say, might have greater insight into its manifestations and effects than a nonvictim. Critics of Sotomayor’s comments reject this. But if judges who lack that experience and make no effort to understand it are just as capable — or, as some suggest, more capable because they are employing neutral principles of law — as others, wouldn’t Plessy v. Ferguson still be the law of the land? Sotomayor noted that, while nine white male justices reached the right decision in Brown v. Board of Education, which essentially overruled Plessy, it took their commitment to looking beyond their own experiences and their willingness to be educated by Thurgood Marshall and other great lawyers of color on why “separate but equal— isn’t equal.
Indeed, Sotomayor is emphatic about the burden on judges to reach beyond their own worlds and experiences, saying that “understanding the values and needs of people from a different group … takes time and effort, something that not all people are willing to give.—
She spoke of her own challenges as a judge:
“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 re-evaluate 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.—
Sotomayor is arguing for diversity of backgrounds and experiences on the bench and for humility in judges about their challenges and limitations. It should be uncontroversial.
Marcia Kuntz is a lawyer and editor in chief of Media Matters for America.