Law: August 2009 Archives

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.

Sotomayor Decisions

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Since the Senate is going to be voting on Judge Sonia Sotomayor's nomination to the Supreme Court, I thought I might as well post my remaining thoughts on her. As I see it, there are three issues for senators to be considering in deciding how to vote in whether confirm her nomination. The first issue is to what extent they should consider ideology and to what extent they should defer to the president's choice. The second is the disconnect between some things she's said in the past and some things she's saying now and how we should think that will affect her decisions once she's on the Supreme Court. The one remaining kind of issue is simply what kinds of decisions she's made as a judge. [I should say that I left the race issue out of the last post, and I'm also not going to say much about it in this one, because I'm working on a separate post on that issue, covering both the speeches and decisions.]

One thing to keep in mind is what President Obama has repeatedly said in his discussions of judicial nominations. He estimates the percentage of cases where judges just apply the law to be 95% and then speaks of the other 5% as the ones to pay attention to. I think he's got his numbers way off about which cases are easy and would be unanimous, but he's right that it's the most difficult cases, particularly those involving constitutional issues, where we'll get a better idea of what's distinctive about a judge, and we need to look at those cases to get a good sense of how a judge will be on issues of tremendous importance. A lot of people have emphasized that the bulk of Judge Sotomayor's decisions are pretty moderate, but they don't acknowledge that the same was true of Chief Justice Roberts and Justice Alito when they were appellate judges, and senators in the Democratic Party didn't let that stop them from pointing to the few decisions they could find that they considered problematic. It's those controversial decisions that give some sense of how a judge might decide the controversial Supreme Court decisions that most people are most likely to care about.

I think her record does include some bothersome decisions about constitutional rights. For example, there's a worrisome opinion about free speech (see also the 1st update here). She ruled that a public school can punish a student for a blog post written off school grounds and not during school hours.

Her record also includes a number of cases where she has refused to consider constitutional objections against a law or government practice when a large number of people in looking at it have thought such an argument is at least worth discussing and many would argue is decisive. These involve (at least) the Second, Fifth, and Fourteenth Amendments with regard to gun rights (discussed below), property rights (i.e. search and seizure, also discussed below), and equal protection (which I'll discuss in more detail in a subsequent post). It's a serious worry that she thinks these issues are not worth an argument, as if there's no real issue to discuss, when a large majority of her critics, including several people on the Supreme Court in each case, would think there is indeed an issue. Her dissent in the voting rights case about felons (see below) is similarly brief and dismissive, but that's not a constitutional issue. I've heard people say that she's especially thorough in most of her opinions, so this does tell you something about her view on these issues. She doesn't think there's much room for debate on such straightforward issues that lots of people don't think are so straightforward or think are straightforward in the other direction.

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