Obama & Sotomayor at Press Conference
There was a lot of debate about who President Obama would appoint as a Supreme Court nominee. Many on the left hoped he’d pick a “larger than life” liberal to balance against Scalia, Thomas, etc. President Obama’s pick, as we now know, is Sonia Sotomayor who, if confirmed, will join Ruth Bader Ginsburg as one of two women on the Supreme Court. But her nomination hasn’t been without controversy. Specifically, there’s been a quote taken out of context from her 2001 lecture at UC Berkeley. And, given the (mis)quote’s ubiquitousness, if Keith Olbermann hadn’t aired the quote in full on his program I don’t think we’d have escaped its grasp. Here’s the fuller quote (I’ve italicized the part we’re all familiar with):
… 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 not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. 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 experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice 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. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. 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.
Sotomayor is soon set to begin her confirmation hearings. The NY Times has an interview with Justice Ginsburg on women on the bench, their decision-making, and Sotomayor. On currently being the only woman on the Supreme Court, Justice Ginsburg says, “It’s almost like being back in law school in 1956, when there were 9 of us in a class of over 500, so that meant most sections had just 2 women, and you felt that every eye was on you. Every time you went to answer a question, you were answering for your entire sex. It may not have been true, but certainly you felt that way. You were different and the object of curiosity.”
