Andrew McCarthy's Argument Against Sotomayor Would Disqualify O'Connor and Scalia as Well!

Andrew McCarthy, writing for the National Review Online, has offered yet another failed rightwing effort to "get" Sonia Sotomayor. In his essay, McCarthy tries to demonstrate that Sonia Sotomayor could not qualify as a juror because, he claims, she lacks impartiality. McCarthy argues that:

Would Judge Sotomayor be qualified to serve as a juror? Let's say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to "transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law"; and that there are "basic differences" in the way people "of color" exercise "logic and reasoning." If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?

Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?

There are so many ways to criticize this argument. Here are a few.

First, lawyers and judges are often turned away from jury duty precisely because attorneys in the cases fear that if other lawyers serve as jurors, they will either have undue influence on the jury or will rely upon their prior knowledge when deciding how to vote. This certainly would nt make them unqualified to remain judges or lawyers.

Second, jurors are removed if there is a sufficient likelihood that they would exercise bias against a particular litigant, not simply because they are a product of their own experiences.

Third, McCarthy's argument would disqualify Justice O'Connor and Scalia from serving on the bench because these two justices unapologetically embrace the idea that identity shapes jurors. In an earlier blog post, I analyzed the "striking similarities" between Sotomayor's comments on race and sex and statements by other members of the bench. I will quote from my previous analysis of O'Connor and Scalia at length because they are relevant to this discussion.

(Quoted Material)
O'Connor and Gender Perspectives
In the case J.E.B. v. Alabama, for example, the Supreme Court held that prosecutors could not use their peremptory challenges to exclude prospective jurors based solely on gender. Justice O'Connor agreed with the decision, but she wrote separately to take issue with the notion that gender is socially irrelevant:

We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. . . .Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case.. . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

Sotomayor's analysis mirrors the thoughtfulness that O'Connor brings to this issue. In particular, Sotomayor, like O'Connor, accepts the gender-neutrality mandate, but she believes that the law loses something in pursuit of this goal. Although O'Connor focuses on jurors instead of judges, given the importance of jurors to legal process -- especially in criminal law -- her analysis, if true, means that a good amount of legal decisions potentially rest on race and gender factors. Furthermore, if this analysis is true, then it suggests that judges could potentially operate on the same impulses. . . .

And while she voted with the majority in J.E.B, her concurrence asserts that the Court should not extend the case to cover the decisions of private lawyers. She is specifically concerned that lawyers representing women in sexual harassment and other cases related to gender would no longer have the opportunity to place a helpful amount of women on juries. O'Connor's reasoning would have carved out an explicit role for gender in legal decision making. The distinction between judge and juror in this context is meaningless.

Interestingly, beloved conservative Justice Scalia is more fatalistic than either O'Connor or Sotmayor. He says that judges cannot do anything about jurors' racial biases -- even if it is a life or death situation. Here's my previous analysis.

(Quoted Material)
Justice Scalia
Even a conservative like Justice Scalia has acknowledged race-based decision making among jurors. Shockingly, Scalia believes that the Court cannot remedy these decisions -- even when a litigant's life is at stake. In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. Race operated most severely in cases involving black defendants accused of killing white victims, but the statistics showed that any person who killed a white individual had a greater likelihood of receiving the death penalty.

The majority found that, notwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Sotomayor, like Scalia, believes that race and sex impact legal decision making, but Sotomayor believes that judges have to struggle to overcome this limitation. Scalia, by contrast, acknowledges race-based decisions among jurors and prosecutors, but he would not exercise his authority as a judge to remedy the situation -- even in a life or death situation.

Conclusion
If Sotomayor is unfit for the bench because she concedes that she struggles to remove herself from her own experiences, then O'Connor and Scalia are unfit as well because they believe the Court should not stop jurors from making decisions based on the own backgrounds and previous experiences. To date, conservatives have made arguments against Sotomayor that would disqualify O'Connor (an advocate of gender and racial perspectives for jurors), Scalia (an emotional and empathetic justice who says that the Court can do nothing about jurors' racial biases), and Thomas (who often writes passionately against affirmative action from his own perspectives as a black conservative). What disarray!