My co-blogger Jonathan Adler points to today’s story in the New York Times by Charlie Savage about a lecture Judge Sotomayor published in the Berkeley La Raza Law Journal in 2002 about the role of race and gender in judicial decisionmaking.
I tend to agree with Jonathan’s take that some of what Judge Sotomayor says is entirely unexceptional: surely a judge’s personal experience will naturally impact his or her decisionmaking in some cases, as it will draw the judge to some conclusions more or less readily than others. At the same time, I agree with Jonathan that some of the statements seem to go beyond that commonplace observation into more normative territory, and there I suspect different readers will draw different conclusions.
I thought readers (especially those without Westlaw) might be interested in reading the speech directly, so I have excerpted what I believe to be the key sections below. As I understand the address, it was the Mario G. Olmos Law and Cultural Diversity Memorial Lecture delivered at Berkeley Law School, as the kickoff address for a conference. Also, by way of context, Judge Sotomayor refers in the text below to the views of Judge Miriam Cedarbaum, a former colleague on the District Court bench. Sotomayor’s address suggests that Judge Cedarbaum had taken the view that there was little empirical evidence that men and women judge differently, and that it was dangerous to start looking for cultural or innate differences in thinking and judging between men and woman and caucasians and minorities.
Anyway, here are what I believe are the key sections of the address, with two paragraph breaks added for clarity. It is available in full as A Latina Judge’s Voice, 13 Berkeley La Raza L.J. 87 (2002).
I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench. . . .
While recognizing the potential effect of individual experiences on perception, 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. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.
I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor–I did graduate from there and I am not really biased except that they seem to be doing a lot of writing in that area – Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be. . . .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.
That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects.
Yet, because I accept the proposition that, as Judge Resnik describes it,