Wednesday, June 10, 2009

Sonia Sotomayor rejects Lady Justice' blindfold

Sonia Sotomayor ought never sit on the Supreme Court.

The argument for her confirmation necessarily goes like this: sure she is openly bigoted against white men, but it's not hatred in her heart, and is instead the bigotry of ignorant generalization about whites and men, and only occurs in light of her zeal to rectify historic wrongs against women and persons of color. Because she is such a caring person and talented legal scholar, we ought overlook this ignorant yet not hateful bigotry and confirm her to the Supreme Court.

Anecdotal evidence (here's an example) indicates she ain't much of a legal scholar, and is deceptive in her public utterances. Having studied her de facto stump speech, I'm of the opinion that she could not reason her way out of a paper bag.

Yet, what ought disqualify is her rejection Justice' blindfold. Sotomayor makes the case for rejection:
Judge 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 the 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 in 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.

What is the purpose of the law?
Judge Sotomayor, in a written 1994 speech to the 40th National Conference of Law Reviews - a speech she used as a foundation for her 2001 Berkeley speech(lifting much exact text from one speech to the next), and for two other future speeches:
"I would hope that a wise woman with the richness of her experiences would, more often than not, reach a better conclusion [than a man]. What is better?

I like Professor Resnik hope that better will mean a more compassionate, and caring conclusion.
Judge Sotomayor is asserting that law is about compassion and caring. I say the law is about the compassion and caring of equally protecting the civil rights of American citizens. That's not the compassion and caring Sonia Sotomayor is referencing.

She references rulings which help liberate a historically oppressed gender ... even when individual case facts do not align for such a ruling. Sotomayor shows no compassion and no caring for an individual business or an individual person whose civil rights stand in the way of speeding Judge Sotomayor's desired gender liberation.

Substitute race for gender, and you can see exactly why Judge Sotomayor ruled Firefighter Frank Ricci's civil rights were not violated when he was denied - on the basis of race - the promotion he deserved. Ms. Sotomayor was busy rectifying historical wrongs against black persons. She had no compassion for an individual American citizen: Frank Ricci. In her formulation, Ricci must sacrifice himself for the good of an entire race.

Such is exactly opposite what the Framers had in mind when they produced what Barack Obama infamously criticized as [quoting from memory]:
a Constitution of negative rights which state what government may not do, yet which do not state what government ought do for American citizens.
The Framers explicitly rebuked the Barack formulation. The Framers, focused on protecting the individual against incursions by the state, may as well have been staring at a portrait of Frank Ricci as they debated.

Are women less likely to be bigoted than men? Are persons with darker hued skin less likely to be bigoted than persons with whiter skin?
There is the tiny matter of Sotomayor asserting that women are less likely to be bigoted than men. Let's re-look at the above quote:
"I would hope that a wise woman with the richness of her experiences would, more often than not, reach a better conclusion [than a man]. What is better?

I like Professor Resnik hope that better will mean a more compassionate, and caring conclusion.
If women are more compassionate and more caring, who is necessarily less compassionate and less caring? Men. There is no other sensible conclusion.

In Sotomayor's world, and in Sotomayor's formulation: why would a person be less compassionate and less caring? Because that person is bigoted. Sotomayor spells it out:
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.
Oliver Wendell Holmes died in 1935. Benjamin Cardozo died in 1938. Sotomayor repeated this exact reasoning in her 2001 Berkeley speech.

Let's be clear about Sotomayor's logic, which is: because Holmes and Cardozo ruled to uphold both sex and race discrimination; therefore Supreme Courts in 2001 and beyond are likely to contain at least some bigoted justices who cannot set aside their personal biases when ruling on the law. Sotomayor continues:
"[U]ntil 1972, no Supreme Court case ever upheld the right of a woman in a gender discrimination case."
Re women's rights, a lot happened in the thirty years between 1971 and the 2001 Berkeley speech. Let us again be clear: Sotomayor is asserting that at least some Supreme Court Justices in 2001 and beyond are likely to be bigoted against women, and of course they will be unable to set their bigotry aside when issuing rulings of law. Sotomayor continues (this is 2001 language which is very slightly edited from her 1994 speech):
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.
Let's look at that in paraphrase: Some white men SCOTUS Justices are not willing to give necessary time and effort to understand racial and gender difficulties; some white men SCOTUS Justices just do not care. Therefore, it's likely that some white men SCOTUS Justices, now and into the future, will issue rulings which will be based upon bigotry.

Sotomayor's goal is to insert sufficient number of Latina and other minority judges to counteract[via power of numbers] the white male judges who cannot or will not empathize and who therefore are bigoted.

There is a statistical wackiness to Sotomayor's plan. If she believes Latina's are equally as [maliciously] bigoted as white male judges, then what percentage of white and Latina judges are[maliciously] bigoted? Lets pretend 20%. Therefore, assuming you could overcome the statistical problems of the small sample size being nowhere near representative of the population of judges(and you could not overcome that, yet we will press on), you would need at least 5 Latina judges on any court in order to ensure that 4 of the Latina judges were able to empathize and thus overcome the votes of the 1 bigoted Latina judge. There are not enough judicial positions available on any court to bring Sotomayor's utopian goal to fruition, which is partly why I asked if Sotomayor's philosophy would require 375 SCOTUS Justices, and would even that number be enough? Hint: it wouldn't be.

Since it is unlikely to happen on any court, it's my suspicion that Judge Sotomayor does not seek 5 Latina SCOTUS Justices. It's my suspicion that Judge Sotomayor blithely believes Latina SCOTUS Justices would be less bigoted than white male SCOTUS Justices. As Jennifer Rubin (below) says, "'Wise Latina woman' is not a throwaway line: it is the essence of her address."

It would be much easier, much more logical, if Sotomayor could believe in Judge Cedarbaum's formulation:
[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.
Of course, if Sotomayor believed that, she never would have been nominated by the President.

"Wise Latina" was the essence of Sotomayor's address
I recommend Jennifer Rubin in The Weekly Standard: "A Wise Latina Woman". Rubin says Sotomayor's infamous 32 words are not an aside, but rather a culmination of 3600 words which have led up to them. "Wise Latina woman" is not a throwaway: it is the point. Rubin:
In [Sotomayor's] view minority judges are practicing their own brand of law, which explains why she wants lots of those judges. It is, as she argues in invoking Resnik, about power and about asserting judges' distinct Latina (or female or African-American or whatever) visions.

She also denigrates the notion of a neutral, objective judiciary which treats all citizens alike and removes personal bias from the judicial branch. The goal here is not to remove racial or ethnic bias from judging, but to make sure the right bias is given voice--secured by increased numbers of minority judges.

And her qualms about intellectual rigor and impartiality extend to virtually all that judges do ("I wonder whether achieving that goal is possible in all or even in most cases"). This is legal relativism, if not nihilism. No objective truth, no objective judging, only power politics.

And then she goes on to dispute the obvious rejoinder to her argument:
"Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males."
Well, if that is the case then the assertion that we must have judges of a certain ethnic or racial background to achieve "good" results is undermined. Really, could it be that any white, liberal male judge might reach the same results as Sotomayor?

It is in this context that her 32 words (and several dozen more) are deployed--to defend the view that ethnicity and gender matter in judging:
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 [Sandra Day] 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.
Her "wise Latina" declaration is therefore central to her argument that more Latinas are needed, that their brand of judging is distinct, and that they should wield their Latina wisdom to derive results which are superior to those of white males. It is hardly a throwaway line; it is the essence of her address.

She grudgingly acknowledges that yes, well, there were some noteworthy white jurists whose rulings dismantled legal discrimination. But that required "great moments of enlightenment" on their part, and hence does not diminish the need for the distinctive jurisprudence of nonwhite males....
She concedes that there is a "danger in relative morality" (perhaps she means subjective or bias-laden judging), but quickly returns to her theme: We need to boost minority numbers to change the law from white, male-dominated law into something better:
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.
Sotomayor's speech/law review article is a repudiation of the notion that the rule of law provides a single standard of justice, impartially applied by judges (of whatever background) who put aside bias and favoritism. She isn't advocating some new intellectual approach to interpreting the Constitution. She is, much in the way bilingual advocates defend distinct language traditions, defending a separatist school of judging. The law will be altered not by argument or persuasion, but by sheer force of numbers, by more judges who bring ethnic and gender and racial baggage to the bench.
Were I a Senator, I would consider Judge Sotomayor the premier example of why "advise and consent" language is in the Constitution. That a Latina's brand of judging is distinct is a disqualifying notion. That the Frank Riccis of our nation must be sacrificed is a disqualifying notion.


Foxwood said...

Our Constitutional right are being ignored, but the sad truth is we don't know it. We don't know our rights, and some just don't care. That is why we are where we are.

gcotharn said...

Thanks for sharing your opinion. I concur.