If you are watching the Sotomayor confirmation hearings, I strongly recommend following along with Glenn Greenwald on Twitter. As a constitutional law attorney and august civil libertarian, he adds essential real-time insight. (h/t Eric for the cartoon.)
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.
Never mind that her nearly 400 decisions from the federal bench are being ignored. Never mind that she agreed with her conservative Republican colleagues over 95% of the time. Never mind that her academic and professional career is deeper and wider than anyone else on the Supreme Court. Fox talking heads will continue to dissemble her 8-year-old speech and confound the facts of her record for apparently purely partisan reasons.
I can understand guys like Jeff Sessions and John Kyl and Zach Wamp going after Sotomayor for no other reason than their constituencies eat this stuff up like lions on fresh zebra. They love the sturm and drang of the theme that "brown people are taking over our country" (after we took it from the red-man fair and square.) But I don't understand Fox' strategy. Let's face it, this racism stuff is pretty long in the tooth and the demographic is dying off fairly rapidly, either by old age or firearm accidents, so why perpetuate the theme? We have a unique opportunity as a nation and a culture to come together to rejoice in our diversity, a culture that has allowed all people to contribute. Prejudice is far from dead, but we could now put a withering hit on it.
Fox "pundits" continue to state that Judge Sotomayor has had "more decisions overturned by the Supreme Court than anyone else, up to 80%!". The horror! The incompetence! Well, the fact is that Judge Sotomayor has been involved in more decisions than anyone else by mere fact of her lengthy career on the bench, and the number of overturned decisions is exactly in line with other judges on a percentage basis. The Supreme Court only chooses to hear controversial cases and as such they are usually making a statement that a certain precedent needs to be changed, so they often overturn lower court decisions. Many famous cases-- Brown v. Board overturned part of Plessy v. Ferguson, Planned Parenthood v. Casey revised Roe v. Wade, and others-- do this. This does not mean the lower court was "wrong" or that it misjudged the case, in fact the lower court is obligated to follow precedent.
Ricci follows this theme. Affirmative action has brought about considerable impact on American society over the past generation and the goal of evening the playing field has had unintended consequences of inadvertently making some winners into losers. The fact is that admissions into law school or promotions into certain jobs are a zero-sum game: for every individual given the slot, another individual is denied. Affirmative action was never intended to be a permanent policy, and every hope was that such preference based on race or ethnicity would be unnecessary at some point.
The precedent, as it stood before Ricci, needed to be respected and Judge Sotomayor did just that. Now the Supreme Court has overturned Ricci, and I would think that if Judge Sotomayor were to rule on a case similar to Ricci, her decision would be different. That's how the system works.
The reality is that Judge Sotomayor will be confirmed, the world will turn one more time, and racism will, thankfully, be dealt another blow. But in the meantime, watch the hearings because the videos will someday be in the Smithsonian along side McCarthy's tantrums and Nixon's race baiting Southern Strategy.