Would a "Wise Latina" Judge Reach "Better" Results than a White Male?

More comments by Judge Sonia Sotomayor have surfaced that are sure to complicate her confirmation should President Obama nominate her to the Supreme Court. The New York Times reports:

In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge "may and will make a difference in our judging."

In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O'Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

"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," said Judge Sotomayor, who is now considered to be near the top of President Obama's list of potential Supreme Court nominees. . . .

Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges' identities will affect legal outcomes.

"Whether born from experience or inherent physiological or cultural differences," she said, for jurists who are women and nonwhite, "our gender and national origins may and will make a difference in our judging." . . .

In making her argument, Judge Sotomayor sounded many cautionary notes. She said there was no uniform perspective that all women or members of a minority group have, and emphasized that she was not talking about any individual case. . .

Still, Judge Sotomayor questioned whether achieving impartiality "is possible in all, or even, in most, cases." She added, "And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

She also approvingly quoted several law professors who said that "to judge is an exercise of power" and that "there is no objective stance but only a series of perspectives."

"Personal experiences affect the facts that judges choose to see," she said.

UPDATE: Here are my initial thoughts on these remarks. First, it is certainly true that a judge's experience, professional and personal, can affect the way he or she judges in individual cases insofar as it affects the significance placed on particular facts or the extent to which a given situation satisfies a particular legal rule. To take a fairly simple example, a judge's experience could inform whether he or she believes given conduct in the workplace is sufficiently pervasive to create a hostile workplace environment. Likewise, a judge with significant trial experience might review a trial court's findings with a different eye than one who has not. Insofar as various legal rules rely upon contemporary notions of reasonableness, a judge's own experience will inform what he or she sees as "reasonable," even as he or she seeks to render decisions that are consistent with prior precedent. In close cases, a judge must exercise judgment, and judgment is informed by experience, even if the judge is intent upon applying the relevant law as neutrally as possible. This is one reason for appellate review and multi-judge panels. Different people will, in good faith, see close cases differently, even as they try to apply the same law to the same facts. Nonetheless, the number of cases in which such experience should have an influence is quite small, even on the Supreme Court, and judges should not let their personal experiences deflect them a forthright effort to identify the correct answer in any given case. If this is all Sotomayor is saying, no problem.

Based on the Times report — and without the benefit of a videotape or broader context — it seems Sotomayor's comments go beyond the simple observation that experience can influence how a judge sees a case to question the idea of judicial neutrality and endorse the idea that judging is ultimately an exercise of power instead of judgment. Insofar as this is the case, her remarks are troubling. It is one thing to recognize that judges, as people, are fallible and imperfect, and will be influenced by the personal experience and biases (even as they aspire to interpret and apply the law in a neutral and objective fashion). It is quite another to suggest that such neutrality and objectivity is not even an ideal to which judges should aspire, that "there is no objective stance but only a series of perspectives," and therefore a judge's personal experiences are license to impose his or her preferences through an exercise of judicial power. Indeed, if some perspectives are "better" — more authentic, more fair, more progressive, whatever — why shouldn't a judge embrace his or her own perspective, and abandon any pretense of trying to apply the law in a neutral fashion.

UPDATE: The full text of Judge Sotomayor's remarks are here.

Judge Sotomayor's "Unscripted" Moments:

Today's Washington Post reports:

conservatives have seized upon Sotomayor's unscripted moments to make the case that she is outside the mainstream. The two most often quoted are a statement she made about how appellate judges make policy and her observation about how being a Latina affects her role as a judge: "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]

The initial comment that "policy is made" in the appellate courts was clearly an "unscripted," off-the-cuff remark, and one that I think was overblown. The other one, however, comes from the published version of a prepared speech. So it was hardly "unscripted" and, in all likelihood, it was not unedited either. I suppose it's possible that the text of the speech published in the Berkeley Law Raza Law Review was the raw transcript, but I highly doubt it. Much more likely, Judge Sotomayor had ample opportunity to review the text of her speech prior to publication, making corrections and clarifications where necessary. Thus, in this case, there is every reason to believe that Judge Sotomayor's words were precisely what she meant to say -- and not quite an "unscripted" moment.

Sotomayor's Multiple "Wise Woman" Speeches:

This week it was reported that Judge Sotomayor has made several speeches in which she suggested that a "wise Latina woman," or simply a "wise woman," would make different or better decisions as a judge than a "wise man." Does this matter? According to some, this is further evidence that her statement in a 2001 speech that she hoped a "wise Latina" judge would make "better" decisions than a white male judge was not an isolated misstatement or "unscripted" moment, as claimed by the White House.

Sotomayor's supporters claim, however, that these prior speeches show that her 2001 speech was no big deal, as Republicans did not make these remarks an issue when she was nominated to the U.S. Court of Appeals for the Second Circuit. I am not sure I follow the logic of this argument, however, as it seems quite apparent that most Senators apply greater scrutiny to Supreme Court nominations than to those for lower courts. Most devote more time analyzing Supreme Court picks, and apply a higher standard for confirmation. So, for instance, there were Democrats who voted to confirm John Roberts to the D.C. Circuit who opposed his elevation to the Supreme Court, including Joe Biden and Dianne Feinstein. I also suspect many Democrats (and law professors, for that matter) who did not oppose confirming Michael McConnell to the U.S. Court of Appeals for the Tenth Circuit would have opposed his elevation to the Supreme Court. In the latter case, writings and speeches that were not an issue when McConnell was nominated to be an appellate judge would have been an issue in the context of a Supreme Court nomination. This does not mean that these speeches are sufficient grounds for opposing Sotomayor's confirmation, just that I don't see why Senators who failed to raise them before should be estopped from raising it now.

UPDATE: Commenter Barbra writes: "Your puzzlemant [sic] over the logic of the argument is a puzzle. If these comments were not enough to brand her a sexist-racist in 1998, they are not enough to brand her a sexist-racist today." If I thought Judge Sotomayor's comments indicated she was a "sexist-racist," then that would have been as true in 1998 as it is today. However, I do not believe Judge Sotomayor's speech indicates that she is either a sexist or a racist (and I find the repeated accusation, made in comment threads and elsewhere, quite tiresome). As I noted in my first post about the speech, my concern is what her remarks indicate about her conception of the role of the judge, and this is precisely the sort of concern that could well be greater for a potential Supreme Court justice than an appellate judge.