Is it such a leap of faith or naivete to believe that a jurist’s life experience may have an effect on many of the decisions he makes from the bench?
Judge Sonia Sotomayor is being pilloried by conservatives for a speech she made at the University of California, Berkeley in 2001 in which she stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” Some on the right have taken this statement to say that Sotomayor is a racist and should withdraw her name from consideration for the Supreme Court. In their efforts to dumb-down the discourse of her nomination, they have taken this statement completely out of context. They fail to site what Sotomayor went on to say in the following sentence:
“Let us not forget that wise men like Oliver Wendell Holmes and Justice [Benjamin] 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…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… Nine white men on the
Supreme Court in the past have done so on many occasions and on
many issues including [Brown v. Board of Education.]”
In context, her statement regarding a Latina’s life experience can hardly be considered racist. To further illustrate this point, I will address the Supreme Court case of Dred Scott v. Sandford. Does any thinking person believe that the Supreme Court’s decision in this landmark case was correct? You may remember the court found that individuals of African decent, held in slavery were not and could never be citizens of the United States. It was one of the many blunders, courtesy of presidents, legislators, and courts, made along the path to civil war.
Now consider this: If the court, at the time of Dred Scott, had been composed of a majority of free, African-Americans born in free northern states, would they have come to the same decision? Isn’t it also probable that, in this conceptualization, the Supreme Court would have found slavery to be an illogical abomination to humanity and, therefore, illegal? Or would this have been legislating from the bench and simply too complicated for conservatives to comprehend?
In truth, Dred Scott was decided 6-2 with 1 justice concurring in the majority decision. Five of the 6 justices in the majority were from slave states. At least three of those five had owned slaves, including Chief Justice Roger Tanney, author of the decision. Is it naive to believe that “life experience” may have had an influence on their opinions.
At his confirmation hearing before the Senate Judiciary Committee in January, 2006, current Supreme Court Justice Samuel Alito, a conservative, had the following exchange with Republican Senator Tom Coburn of Oklahoma:
Samuel Alito’s Nomination to the Supreme Court
And I know about their experiences and I didn’t experience those things.
I don’t take credit for anything that they did or anything that they overcame.
But I think that children learn a lot from their parents
and they learn from what the parents say.
But I think they learn a lot more from what the parents do
and from what they take from the stories of their parents lives.
And that’s why I went into that in my opening
statement. Because when a case comes
before me involving, let’s say, someone
who is an immigrant — and we get
an awful lot of immigration cases and naturalization
cases — I can’t help but think of my own ancestors, because
it wasn’t that long ago when they were in that position.
And so it’s my job to apply the law. It’s not my job to change
the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself,
and I do say to myself, “You know, this could be your
grandfather, this could be your grandmother. They were not citizens
at one time, and they were people who came to this country.”
When I have cases involving children, I can’t help but think of my own children
and think about my children being treated in the way
that children may be treated in the case that’s before me.
And that goes down the line. When I get a case about discrimination,
I have to think about people in my own family who suffered discrimination
because of their ethnic background or because of religion or because of
gender. And I do take that into account. When I have a case involving
someone who’s been subjected to discrimination because of disability, I have
to think of people who I’ve known and admire very greatly who’ve had
disabilities, and I’ve watched them struggle to overcome the barriers that
society puts up often just because it doesn’t think of
what it’s doing — the barriers that it puts up to them.
So those are some of the experiences that have shaped me as a person.
COBURN: Thank you.
I don’t recall any objections from former House Speaker Newt Gingrich or radio personality Rush Limbaugh over this statement, and, if they were honest today over Sotomayor’s nomination, they wouldn’t be crying racism. These two need to concentrate their efforts elsewhere or find a hobby to keep themselves busy until Sotomayor is confirmed.
Sonia Sotomayor will be bringing her life experience to the Supreme Court. The life experiences of everyone who has ever served on the court have had a bearing on many of their opinions. Whether one is an executive, legislator, or judge, for well or ill, that is the reality of our democracy, to the lament of the Federalist Society regarding our judicial branch.
Cases should be decided on their merit vis a vis the Constitution. Most are. However, liberal judges will use their life experiences in some cases to move history along at a faster pace than some can conceive. Sometimes to the betterment of society, sometimes not.
Conservative judges will use their life experiences in some cases to put a brake on what some see as eventualities. Sometimes to the betterment of society, sometimes not.
Today conservatives look at the records of potential nominees to the Supreme Court through the prisms of abortion, affirmative action, and civil rights. If a jurist’s position on these issues are in line with conservative thought, they are hailed as shining examples of “judicial restraint.” If not, they are “activists” with a tendency to “legislate from the bench.” Ironically, liberals view Supreme Court nominees through the same prisms with contradictory conclusions. In each case, the jurist’s life experience may very well influence her opinions.