Sotomayor on Race

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I've been minimizing the discussion of race in my most recent posts about Judge Sotomayor's cases and statements about race, because I wanted to treat those issues together in one place, and it does involve both her speeches and her decisions, which would have required splitting up the discussion if I included it in those posts. So here are some thoughts on her speeches, judicial decisions, and recent statements about race and related issues.

As I've said before, I don't think there's any problem with thinking different people bring different things to interpretation of the law, and I don't think ethnic and racial differences are exempt from this. Someone who has been followed around in the store because of race understands discrimination and racism in different ways from how I do, since that hasn't happened to me that I'm aware of (and it hasn't happened to Sam when I've been around). But to assume that such a person will be a better judge goes too far, and that's exactly what the Sotomayor of the speeches claimed, even if she distanced herself from this in her testimony. What's odd about that is that she seems obviously right about some of the things she distanced herself from and yet wasn't willing to defend herself despite several senators attempting to do so.

There are ways she understands race and racism better than I do, because she's experienced it more from the perspective of someone being discriminated against or who has been followed around in a store. That might impact judging, because it allows someone to have a better understanding than someone who hasn't experienced such things. But what isn't often acknowledged by those making this point is that there are ways I understand racism and discrimination that someone who has more often been discriminated against might not understand. (I've made this kind of point before in a different context here.) For one thing, I've been around white people sometimes when no black people are around, and I know what white people talk about when only white people are around (it usually has nothing to do with race, but occasionally I have heard white people tell racist jokes and such things that they wouldn't say if they thought a black person might overhear). That's part of my experience, and it affects how I see racism and discrimination. Someone who is not white doesn't have that experience and has no first-hand knowledge of such facts.

I also have a third kind of experience from being in a mixed-race family, which includes experiences that most people of only one race don't have. For example, most same-race couples aren't going to have grocery store clerks assume they're not with each other. Most white people don't have family who aren't white, and thus they lack experiences of non-whites that I might have some understanding of. They don't have much experience attending black churches as family of one of the pastors, for instance. There are certain racial experiences that some white people can have that most white people don't have. That makes it hard to assume certain experiences just because of someone's race, which her statement does.

Which set of facts makes someone a better judge? The answer is neither. Both sets of facts could inform judges more about what our society is like, and a good, well-informed judge would welcome both sets of data. So I don't find her claim problematic when she says that a Latina judge's experience would provide experience relevant to judging and thus improve her judging in some ways from what it might otherwise be. I would also go as far as saying that, when a certain qualified judge comes from an underrepresented background, that background is likely to increase the quality of judging by adding the experiences of that underrepresented group to the data set the judges will consider. So having more Latina judges will make the judiciary better in one respect as compared with having one more white man on the judiciary, whose experiences may not (at least insofar as the person is a white man) add any further diversity to the pool of relevant experiences to inform interpretation of the facts that judges will hear.

But I don't think it follows that a Latina judge will be a better judge as an individual than a white man, merely because she is Latina, even holding all other things constant. That's what Sotomayor's statement actually says. I do find that inference troubling.

That being said, I think we should consider Todd Zywicki's suggestion that was just repeating a commonplace in academic settings without having really thought about the implications. If that's right, and she's now thought about the implications and rejected what her words actually mean, only to insist on emphasizing what she thought she was saying, then maybe there's no inconsistency here. But that view does attribute to her a kind of philosophical simple-mindedness that would be somewhat uncharitable. So as with many public figures, we have a choice between uncharitably attributing to her either a kind of philosophical naivety or a kind of philosophical inconsistency. Neither is charitable, but it's not clear to me that a charitable interpretation is available.

Now when you look at her actual decisions, she more often than not rejects discrimination claims. Senator Schumer used this as an argument that she's not letting empathy get in the way of good ruling, despite having used the same sort of fact as a reason to filibuster Samuel Alito when he was in the same position. There's excellent reason to be suspicious of Senator Schumer's motivations here, but is his argument any good? I think he's certainly given a reason to think she can put aside empathetic considerations to decide cases according to what the law says, but you'd have to look at the individual cases to see if she got it right in that case. Mere percentages tell you little, even percentages compared to other appellate judges, because others' percentages reflect decisions on different cases. Also, as I argued earlier, we must look to the cases that involve difficult problems legally and constitutionally to get the best sense of what she'll be like on the Supreme Court. For that, overall percentage tells us nothing. It's not just that the important information is in the details. It's that it's in the details of the hardest and most controversial cases.

One way to restrict your set of cases to get a better idea of how she votes on race cases when the issues are less clear is to look only at the ones that were not unanimous. Jonathan Adler does that. In those cases, she appears to be much more like the liberal justices on the Supreme Court and not remotely the judicial conservative that Senator Schumer has tried to present her as, and Adler says that such an observation fits better with the speeches people have drawn attention to than one might think when looking at all the decisions with the unanimous ones included.

Most of the race cases she's decided involved statutory analysis and not constitutional claims. The one case I'm aware of that could have involved constitutional issues about race and equal protection was the Ricci case, where she ignored the constitutional issues entirely. Now so did the deciding Supreme Court opinion, but several Supreme Court justices did think constitutional issues were involved and offered discussions of those issues separately from the main opinion by Justice Kennedy. So this does count as a case where she put aside the constitutional issue in a brief summary opinion without considering what many believe to be a serious constitutional worry, a trend some of her critics have noticed, which was one of things I discussed in my earlier post on her decisions.

The Ricci case involved an equal protection worry about dismissing the results of a test because black test-takers didn't do as well as hoped, in the absence of any data establishing that the test was unfair, and then refusing even to try to find a different test to avoid the disproportionate outcome while still determining qualifications. She does cite Second Circuit precedent, but even that ignores the constitutional issue. It should at least have been dealt with, even if the panel found that it wasn't an important concern. It wasn't even discussed, and the lawyers for the firefighters did present arguments on those grounds. (I would offer the same criticism of Justice Kennedy's Supreme Court opinion, for the record, as some of the justices in the majority actually did in their concurring opinions.)

So I'm not going to offer a ringing endorsement of Judge Sotomayor on race issues, but I'm also not going to say that she's well out of the mainstream. She seems to be within the mainstream on the whole in terms of her entire body of decisions on race, and she seems to be within the mainstream of Democratic-appointed judges on the more controversial decisions. She has repeatedly made a statement that I think goes too far when it comes to race and judging, but that statement has been criticized for the wrong reasons and has been taken to mean more than what it says. But at the same time, I'm not convinced by her distancing herself from it in the hearings. She seems to me to have backed off too much from what's right about what she said, without therefore convincing me that she really means her resistance to how people have taken it, and it makes me wonder if the part that goes beyond what I think is still among her views. I can understand why some of the Republicans are worried about her, even if I think some of their criticisms go too far. I can also understand why some have found her not so worrisome, even if there are issues that remain.

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