The Situationist

Posts Tagged ‘Judge Sonia Sotomayor’

It’s Hard to Step into Someone Else’s Shoes

Posted by Adam Benforado on June 25, 2009

Shoes Someone ElseStanley Fish has an interesting new post (over on his New York Times blog) that reflects on a panel discussion at NYU Law School on the question of what kind of Supreme Court justices we want.  Do we actually desire a judge with “empathy”?

Fish gave particular attention to “Judge Sotomayor’s now famous or infamous speculation that a wise Latina might know something an old white guy did not.”

His analysis aligns with op-eds that Jon Hanson and I have written recently for the Philadelphia Inquirer and the anecdote he relates at the end is an excellent demonstration of just how blind we can be to the power of situation and, in particular, how easy it is to become lost in one’s own perspective.

Here is an excerpt of the post

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[If Sotomayor] is being descriptive, if she is saying only that no one can completely divest herself of the experiences life has delivered or function as an actor without a history, she is announcing no method at all. She is merely acknowledging a truth (as she sees it) about the human condition: the influences [Alabama Republican Senator Jeff] Sessions laments are unavoidable, which means that no one can be faulted for viewing things from one or another of the limited perspectives to which we are all (differently) confined.

In fact – and this is what Sotomayor means when she talks about reaching a better conclusion than a white man who hasn’t lived her life – rather than distorting reality, perspectives illuminate it or at least that part of it they make manifest. It follows that no one perspective suffices to capture all aspects of reality and that, therefore, the presence in the interpretive arena of multiple perspectives is a good thing. In a given instance, the “Latina Judge” might reach a better decision not because she was better in some absolute, racial sense, but because she was better acquainted than her brethren with some aspects of the situation they were considering. (As many have observed in the context of the issue of gender differences, among the current justices, only Ruth Bader Ginsburg knows what it’s like to be a 13-year-old girl and might, by virtue of that knowledge, be better able to assess the impact on such a girl of a strip-search.)

Throughout the evening, John Payton [head of the NAACP Legal Defense Fund] reminded us that these are not merely theoretical points. He read a chilling sentence from Herbert Wechsler’s influential essay “Toward Neutral Principles.” Wechsler is making the point that laws mandating the separation of the races burden both races equally: “In the days when I was joined with Charles Houston in a litigation in the Supreme Court before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.”

One might wonder whether Houston would equate the lunchtime inconvenience suffered by his colleague with the humiliations he had to endure every day of his life. One might be amazed, as Payton was, by Wechsler’s blindness to what he is saying. He was a great legal mind, but something was missing. You can call it empathy or (as some in the audience suggested) you can call it understanding or imagination. I called it hearkening to the spirit rather than the letter. But whatever you call it, everyone present that evening agreed that it was what we wanted.

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To read some related Situationist posts, see “Stereotyping Sotomayor” and The Situation of Judicial Activism,” which contains links to still other related Situationist posts.

Posted in Ideology, Law | Tagged: , , | 1 Comment »

Stereotyping Sotomayor

Posted by The Situationist Staff on June 9, 2009

Sotomayor PosterLast week, Situationist Contributor Adam Benforado wrote a second op-ed for the Philadelphia Inquirer, titled “Stereotypes on Full Display,” about conservative reaction to the Sotomayor nomination.  We’ve pasted it below.

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If you thought race and gender politics were put to rest with the historic presidential campaigns of last year, think again. The excitement and controversy over Judge Sonia Sotomayor’s nomination to the Supreme Court demonstrate both how far we have come and how far we have to go.

Although Sotomayor has served on the federal bench for 17 years – longer than any incoming justice in the last 100 years – there is little hope that the confirmation process will focus on her judicial record. The order of the day is Sotomayor’s identity as a woman and as a Latina.

Some have suggested that Sotomayor brought this on herself by saying that her background and experiences as a Hispanic woman give her a unique perspective when judging cases.

Yet the isolated snippets of Sotomayor’s remarks that have become so contentious are hard to distinguish from some of the comments made by recent Republican appointees to the Supreme Court. Justice Samuel Alito, for example, explained during his confirmation hearings that when he gets a discrimination case, he takes into account the experiences of people in his “own family who suffered discrimination because of their ethnic background or because of religion or because of gender.”

The general thrust of these comments – that personal perspective affects the way judges construe facts – is well-supported in the academic literature. But that has not stopped critics from assailing Sotomayor as an “activist” judge and casting Obama’s call for an empathetic appointee as code for one guided by feelings rather than the law. As freelance Inquirer columnist John Yoo put it in a recent blog post that echoed comments by Sen. Orrin Hatch, Sen. Mitch McConnell, and others, the danger is that Sotomayor will be “voting her emotions.”

Whether deliberate or not, such statements play on stereotypes of women as ruled by hormones, devoid of reason, and lacking the discipline to put aside their feelings and make hard decisions. The same assertions have been raised for centuries to prevent women from taking positions of power outside the home.

In 1872, when Justice Joseph P. Bradley concurred in the Supreme Court’s denial of Myra Bradwell’s admission to the Illinois bar, he justified the result on the grounds that women are naturally ill-suited to be lawyers because they lack the “decision and firmness which are presumed to predominate in the sterner sex.” Almost 100 years later, Edgar F. Berman, Hubert Humphrey’s personal physician and a political adviser to the Democratic Party, argued that women’s “raging hormonal influences” should disqualify them from taking on significant authority roles.

This harmful misperception persists. As one voter told the Irish Independent during the last presidential election, “Hillary Clinton should not be the next president of the United States. Women are emotional. They do not make good political leaders.”

And, as Hillary and numerous female business leaders, law partners, and politicians have discovered, counteracting this misperception through assertiveness brings comparable liabilities. Thus, the latest attempt to galvanize the public against Sotomayor has involved assertions that she lacks the proper judicial “temperament,” as revealed by her purportedly aggressive questioning and combative manner on the bench.

Sotomayor has been called “nasty,” “strident,” and “temperamental.” Whether these assertions have any basis in fact, they seem likely to be used during the confirmation battle to invoke racial stereotypes about “hot-blooded” Latinas and gender stereotypes about aggressive women.

Such criticisms reveal striking inconsistencies. When Justice Antonin Scalia exhibits a caustic demeanor during oral argument or tersely dismisses his colleagues’ positions in his opinions, it is characterized by some as a sign of backbone, toughness, and principle. When similar behavior is attributed to Sotomayor, it is seen as revealing the flawed traits of her type.

Sotomayor’s colleagues on the Second Circuit Court of Appeals have strongly denied the accusations about Sotomayor’s confrontational demeanor, suggesting that her behavior has been identical to that of other members of the court. According to Judge Guido Calabresi, the commentary about Sotomayor’s behavior on the bench has clearly reflected prejudice. “Some lawyers just don’t like to be questioned by a woman,” he said. “It was sexist, plain and simple.”

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You can link to the the op-ed here.  To read Adam’s first op-ed on the topic (co-authored with Situationist Contributor Jon Hanson), see The Situation of Judicial Activism,” containg links to still other related Situationist posts.  For a sample of posts discussing gender stereotypes, click here.

Posted in Ideology, Politics, Situationist Contributors | Tagged: , , , | 1 Comment »

The Situation of Judicial Activism

Posted by The Situationist Staff on May 21, 2009

JusticiaYesterday, Situationist Contributors Adam Benforado and Jon Hanson published an op-ed, “Right or Left, Judges Are Activists,” in the Philadelphia Inquirer.

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The attack is on. Supreme Court Justice David Souter may still have his robe, but a conservative rabble has already begun its effort to influence who will wear it next. Their weapon is a tested one: the claim of “judicial activism.”

Over the last week, conservative pundits and bloggers have set their sights on Judge Sonia Sotomayor of the Second U.S. Circuit Court of Appeals. By most accounts, Sotomayor, who was first nominated to the federal bench by President George H.W. Bush in 1991, is an accomplished, respected jurist with a compelling personal story. Nonetheless, some on the far right have assailed her for daring to speak honestly and insightfully about the judicial process and what judging entails.

What precisely has drawn their ire? Sotomayor has challenged the popular illusion that a judge’s job is simply to apply the precedents and principles that the law provides to the facts at hand. She has publicly acknowledged what legal scholars have recognized at least since Oliver Wendell Holmes Jr.’s famous observation that “the life of the law has not been logic; it has been experience.  [You can find a video containing some of the evidence of her offending views below.]

As Sotomayor has explained, “personal experiences affect the facts that judges choose to see,” and true impartiality may be impossible “in all, or even in most, cases.” Her point is not that a good judge should surrender to those influences, but that to pretend they do not exist is to surrender to them.

More generally, to give unexamined weight to the experiences, worldviews, and ideologies of those who tend to occupy the bench is to favor the privileged. It is bias in the name of neutrality and a thumb on the scale in the guise of equality.

Thus, while Sotomayor has continually questioned her own “opinions, sympathies, and prejudices” in a struggle to approach objectivity, she has nonetheless wondered “whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

Sotomayor’s statements are hardly grounds for disqualification; indeed, they are supported by a century of legal scholarship that is now the stuff of many first-year law classes. All judges by necessity resort to their own moral and political values when analyzing complex factual questions and ambiguous statutory language. And all judges are susceptible to cognitive proclivities and limitations – often beyond their awareness and control.

The judicial behavior associated with “activism” is not exceptional; activism is just the term conservatives use for judges whose experiences lead them to interpret the facts, decipher the doctrine, and construe the language in ways they disagree with.

In a recent study of more than 20,000 federal court decisions, legal scholars Cass Sunstein and Thomas Miles discovered significant partisan bias (both liberal and conservative) in judicial rulings upholding or striking down the decisions of federal agencies. And, somewhat surprisingly, the conservative members of the Supreme Court demonstrated the most judicial activism, as measured by the share of agency decisions they voted to overturn.

It’s time to extinguish the misconception that the law is something that exists “out there” in its own right, and which judges merely observe and apply. Sotomayor has shown the courage to speak the truth – that the law is subject to interpretation and, “whether born from experience or inherent physiological or cultural differences, … our gender and national origins may and will make a difference in our judging.”

Being honest and acknowledging the biases we all bring to interpretive tasks is a critically important step toward fair and equal justice. For this, Sotomayor deserves our respect and admiration.

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To read some related Situationist posts, see The Bias of the Bar?,” “Judicial Ideology – Abstract,” The Situation of Judicial Methods – Abstract,” “The Situation of Constitutional Beliefs – Abstract,” The Political Situation of Judicial Activism,” Ideology is Back!,” “The Situation of Judges (1),” The Situation of Judges (2),” Blinking on the Bench,” “The Situation of Judging – Part I,” “The Situation of Judging – Part II,” and “Justice Thomas and the Conservative Hypocrisy.”

Posted in Ideology, Law, Legal Theory, Politics, Situationist Contributors, Video | Tagged: , , | 3 Comments »

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