Capitol Hill Blue Forums Political Issues The Obama Administration Obama picks Sotomayor for high court

Republicans have gone from controlling everything to just saying “no.” So, it is of course no surprise that they are saying “no” to President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. They know Judge Sotomayor will be confirmed, unless they can find out that she hasn’t paid her taxes or is romantically involved with her illegal-immigrant maid and not withholding Social Security on her, either. And of course they may find it, given the track record of Obama nominees so far. Failing some killer detail like that, though, the Republicans have got to find another way to say “no.” Right now they’re basically saying she’s unfit for the Court because she’s got “empathy,” which allows them to attack her for being an Hispanic woman without attacking her because she’s an Hispanic woman.

So far, President Obama is playing the Republicans the same way President Clinton did, kind of like the Roadrunner with Wile E. Coyote, helping them blow themselves up. They don’t like Judge Sotomayor because she’ll bring her Latina experience to bear on the Court, but they love Justice Alito and Justice Thomas because they bring their ethnic experience to bear on the Court, as does Chief Justice Roberts his WASP ethnicity.

Meanwhile, of course, the Republicans just look increasingly sexist and racist—two traits they already own. Why don’t they show some creativity and go after Sotomayor where she’s really vulnerable? They’ve proven time and again they don’t mind getting ugly. Why not rip off the gloves and hit her in the pancreas? Can we afford to have a woman sitting on the highest court in the land who is, you know, diabetic?

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women.

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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.

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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.

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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.

..[the]...argument was bolstered forcefully in April by Justice Ruth Bader Ginsburg, currently the court’s only woman, in a case involving Savana Redding, a 13-year-old girl who had been strip-searched at school by the authorities on suspicion of hiding some ibuprofen pills that may be bought over-the-counter.

“They have never been a 13-year-old girl,” Justice Ginsburg said of her eight male colleagues, several of whom had suggested during oral argument that they were not troubled by the search.

“It’s a very sensitive age for a girl,” Justice Ginsburg went on to say in an interview with USA Today. “I didn’t think that my colleagues, some of them, quite understood.”

The most prominent and recent academic study comparing male and female judges found that female judges were more likely than males to decide in favor of plaintiffs who alleged sex discrimination at the workplace. But the study, an unpublished paper by Christina L. Boyd, Lee Epstein and Andrew D. Martin, found no difference in cases involving disability law, environmental issues and capital punishment.

In addition, the study said female judges might exert their influence in cases that were decided by multijudge federal appeals panels.

“Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant,” it said.

If Judge Sotomayor's comments regarding her ethnic background warrant disqualification or even "further explanation", then certainly very similar comments made by Justice Thomas and Justice Alito during their confirmation hearings concerning their ethnic background should have received similar treatment. They did not.

Almost nine years later, we are waiting for a third appointment of a woman to both the Supreme Court and the New York Court of Appeals and of a second minority, male or female, preferably Hispanic, to the Supreme Court.

These figures demonstrate that there is a real and continuing need for Latino and Latina organizations and community groups throughout the country to exist and to continue their efforts of promoting women and men of all colors in their pursuit for equality in the judicial system.

While recognizing the potential effect of individual experiences on perception, Judge 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 the 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 in 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.

Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," 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.

As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

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.