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.
Actually, her speech is not just about her "ethnic background" (and what would that have to do with anything, anyway), but also about her views on the judiciary. This is, of course, a purely academic exercise since neither you nor I have the remotest impact on who will be put onto the Supreme Court, but these are some questions I would ask her in regard to comments she made.
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.
Why preferably Hispanic?
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.
What does she mean by equality in the judicial system? And “men of
all colors”? I like to think of myself as a bashful beige in the winter and a bronzed god in the summer. Am I included in “men of all colors”?:-)
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.
How would these “differences” manifest themselves in a judge’s decision-making?
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.
Does she subscribe to Feminist legal Theory, and, if so, which branch of it does she favor?
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.
Could those different choices mitigate or ignore the facts of a case and replace reason with “empathy” in arriving at a judicial decision?
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.
What does she think this effect will be?
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.
I just had to include this one for grins. Does this mean that boys are better than girls at math?
Yours,
Issodhos
