Pardon, Your Slip Is Showing: Sotomayor on Judicial Activism

Why, that witty raconteur:



And more from the good judge as she grazes on shoe leather:

America has a deeply confused image of itself that is in perpetual tension. We are nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud…Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with differences.

…

While recognizing the potential effect of individual experiences on perception, Judge [Miriam] 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 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 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.

…

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 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 experience would more often than not reach a better conclusion than a white male who hasn’t lived that life. (emphasis added)

…

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.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We…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.

All quotations: Berkeley La Raza Law Journal. 87 (2002), “A Latina Judge’s Voice”, S. Sotomayor



(Republished from Verum Serum, May 3 and May 5, 2009)