Courting Kennedy

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy -- the Supreme Court's lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy's opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O'Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade -- even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O'Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy's vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against "partial-birth" abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy's own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy's opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can "flip" Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the "best argument" combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that "conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room." Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking "Who can sway Kennedy?" is no way to pick Justice Stevens' replacement.

WWKD: Ricci v. DeStefano Will Likely Turn on Justice Kennedy

Although the term "judicial moderate" suggests a judge who lacks a political agenda, moderates possess a tremendous amount of power when the Supreme Court contains equal numbers of liberals and conservatives. After the departure of Justice O'Connor, Kennedy now wields power as the Court's moderate. Kennedy's vote in Ricci v. DeStefano will probably dictate the outcome of that case.

In Ricci, a group of white firefighters challenged a decision by New Haven, Connecticut, to scrap a departmental test used to allocate promotions. If the city had maintained the test, only one nonwhite individual would have qualified for a promotion. The disparity was smaller in prior years. A 3-judge panel of the Second Circuit Court of Appeals sided with New Haven. The full Second Circuit voted 7-6 to deny a rehearing in the case. The Ricci decision has generated more than the usual controversy that accompanies race cases because Supreme Court nominee Sonia Sotomayor sat on the 3-judge panel that approved the city's decision to discard the test.

Ricci, however, is far more complicated than its critics acknowledge. And while Justice Kennedy's vote will likely determine the ultimate outcome of the case, Kennedy's prior stances in race cases could lead him to vote for or against the City of New Haven. Contrary to the politicized discourse surrounding Ricci, the law in this area (and many others) is broad enough to support more than one "correct" conclusion.

Title VII and Disparate Impact

The plaintiffs contend that New Haven violated Title VII (a federal employment discrimination statute) when it scrapped the test results. Title VII bans discrimination by certain employers (including states and municipalities) on the basis of race, sex, religion, and national origin. Congress passed the statute as part of the Civil Rights Act of 1964. Title VII prohibits employment practices that discriminate by purpose or effect.

If the employer uses explicit race-based policies, the case is easy. The more contested area of law, however, involves "neutral" policies that disparately affect members of a particular group. These neutral policies could include aptitude tests or physical endurance requirements for certain jobs. Title VII provides that if a plaintiff can prove that a neutral policy discriminates against a particular class, then the defendant must show that the job requirement serves a "valid" employment goal. Even if the job requirement serves a valid employment goal, the plaintiff can still argue that this goal is attainable with less discriminatory measures or that the employment goal is pretext for discrimination.

Disparate Impact and Ricci
The City of New Haven does not deny that its decision to discard the test was a "race conscious" measure. The city, however, argues that it invalidated the test in order to avoid liability under the impact standard utilized in Title VII cases. An expert witness testified that other tests could have identified qualified individuals with less discriminatory results. The trial judge credited this testimony.

Second Circuit precedent supports the rejection of the plaintiffs' claim. Specifically, in Hayden v. County of Nassau, the Second Circuit held that the defendant's decision to pick from among 25 different tests the test that had the smallest disparate impact on black workers did not violate the statutory or constitutional rights of white and Latino plaintiffs. As the court explained, employers do not violate Title VII when they use policies that seek to avoid the very patterns that courts have deemed illegal under the statute.

Beginning in the 1960s, opponents of Title VII argued that it would cause employers to use quotas. When Congress amended the law in the 1990s to reinstate the impact test (which the Supreme Court had eviscerated) critics described the proposed law as a "quota bill," and President Bush vetoed an initial version of the law (which looks remarkably similar to the enacted version). Now, however, some conservatives have argued that the City of New Haven had no legitimate interest in avoiding liability under Title VII. If the law is indeed a quota statute, then the city presumably has a good argument on the liability issue.

Kennedy, Race and Affirmative Action
The plaintiffs also argue that the City of New Haven violated the Equal Protection Clause of the Fourteenth Amendment. Hayden rejected an Equal Protection claim; accordingly, the Second Circuit ruling seems sound as compared to law within the circuit.

Justice Kennedy has largely opposed the use of race for social policy. Nevertheless, Kennedy has argued that defendants do not violate the constitution by embracing "neutral" policies even if they are "conscious" of race when they do so. In other words, if a governmental defendant wants to minimize the anticipated racial impact of a particular policy, it could, cognizant of this goal, design new policies that seek to lessen the racial effects of its neutral policies. The fact that the defendant considered race, however, would not render the policy decision unconstitutional. This logic separated Kennedy from the conservatives in Parents Involved v. Seattle School District No. 1.

In Parents Involved, a closely divided (5-4) Court invalidated policies used by Seattle, Washington and Jefferson County, Kentucky designed to preserve racial balance in public schools. The 4 conservatives argued that maintaining racial balance was not a "compelling" interest. Kennedy strongly disagreed and wrote a separate opinion to state his objection. Kennedy, however, agreed with the conservatives and argued that the schools' policies where not "narrowly tailored" because race was an explicit part of the diversity plans. Kennedy preferred a "race conscious," but "race neutral" approach. He argued that the school districts could redesign zones and build new schools with racial diversity in mind:

These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. . . .Executive and legislative branches . . . should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decision maker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.

The analysis for Kennedy will center on whether the decision to discard the test after the results were publicized amounts to "a crude system of individual racial classifications" or whether it simply represents a race conscious but permissible effort to minimize the impact of laws on particular racial groups. Although it is hard to predict how Kennedy will vote, I believe that he will vote to reverse the ruling. Whenever race looks overt, rather than covert, Kennedy gets queasy - even if the two types of racial decision making are not materially distinct.

Sotomayor's Opponents Apply Racial and Gendered Double-Standard

The hundreds of cases Sonia Sotomayor has decided do not allow her opponents to build an honest case against her. Accordingly, they seek to portray her as unfit for the Supreme Court by extracting and distorting phrases from a few of her speeches and law review articles. Sotomayor's opponents have relied heavily on comments she made during a 2001 conference at the University of California at Berkeley in order to portray her as a racist and impartial jurist. Although Media Matters has handily refuted such arguments, I have not seen any media coverage that examines similar race and gender commentary by current and former Supreme Court justices. If Sotomayor's comments on race and gender make her unfit for the Supreme Court, then statements by Justice O'Connor, Justice Rehnquist (now deceased), Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Ginsburg make them unfit for the Supreme Court as well.

Justice O'Connor
In JEB v. Alabama, O'Connor agreed with the majority of the Court which held that prosecutors could not exclude jurors based on sex. O'Connor, however, wrote a concurring opinion that criticizes the view that gender is irrelevant to the legal process:

We know that like race, gender matters. . . . [O]ne 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.

O'Connor also stated that she hoped the Court would not extend the ruling to prohibit private lawyers from considering gender when selecting jurors. O'Connor said that a reasonable attorney would want women on the jury in cases such as sexual harassment. Clearly, O'Connor believes that women offer a qualitatively different (perhaps even better) perspective than men in certain settings.

Justice Ginsburg
In United States v. Virginia, Justice Ginsburg wrote the majority opinion invalidating a Virginia Military Institute policy that excluded women. Ginsburg's opinion discusses the relevance of gender in society and law, citing a long line of Supreme Court precedent:

Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .

"Inherent differences" between men and women. . .remain cause for celebration. . . .Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . [and] to advance full development of the talent and capacities of our Nation's people. . . .

Ginsburg believes that gender remains relevant for the advancement of the "talent" and "capacities" of the Nation, and the Supreme Court continues to validate laws and policies which it concludes rest on "real" or "inherent" differences between men and women. Supreme Court precedent credits the very claims about sex that Sotomayor has previously made.

Justice Scalia
In McCleskey v. Kemp, Scalia voted with the majority and rejected the petitioner's claim that Georgia applied the death penalty in a racially discriminatory fashion. The majority concluded that McCleskey did not prove the he suffered from discrimination in his individual case. Prior to the issuance of the McCleskey decision, however, Scalia wrote a memorandum to the other justices in which he stated that he actually did not need additional "proof" of racial discrimination because he believes race influences jurors and prosecutors but that the Supreme Court could not eradicate this behavior:

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.

Furthermore, in Johnson v. Transportation Agency of Santa Clara County, Scalia argued that white men are "victims" in society but that women and people of color are powerful. He made this observation in a dissenting opinion, which disagreed with the majority's conclusion that an employer did not violate federal antidiscrimination law by taking gender into account when it decided to promote a woman over a male candidate: "[T]he only losers in the process are the Johnsons of the country . . . ."

Not only does Scalia "empathize" with white men, but he concludes that they are powerless relative to women and persons of color, and his believes the Court should have issued a ruling based on this observation. If Scalia's views on race and sex do not disqualify him from the bench, then neither should Sotomayor's prior statements.

Justice Rehnquist
Before Justice Rehnquist was confirmed to the Supreme Court he had a history of racial insensitivity. For example, as a law clerk, he advised Justice Jackson to uphold the "separate but equal" principle announced in Plessy v. Ferguson and to vote against the plaintiffs who challenged school segregation in Brown v. Board of Education.

Rehnquist also urged Justice Jackson to rule that the Democratic Party's use of "white primaries" in Texas (which excluded black and Latino voters) did not violate the Constitution. Rehnquist, seemingly exhausted by the racial progress that occurred during his clerkship, argued that: "It is about time the Court faced the fact that the white people of the south don’t like the colored people. . . ."

As the Attorney General in the Nixon administration, Rehnquist, echoing his opposition to Brown, drafted a constitutional amendment which would have banned busing in order to remedy school segregation. Also, as a resident of Phoenix, Arizona he opposed the enactment of a local ordinance that banned racial discrimination in places of public accommodation. Despite his racist views, Rehnquist was confirmed as an Associate Justice and later as Chief Justice over the objection of liberals who cited to his past racial positions.

Justice Kennedy
Justice Kennedy authored the majority ruling in Gonzalez v. Carhart, which upheld the federal prohibition of partial-birth abortion. In the ruling, Kennedy expresses empathy toward hypothetical women whom he says could regret their decision to undergo the procedure. Based on his romanticized and paternalistic notions about gender, Kennedy argues that Congress could ban the procedure altogether in order to protect women from their bad decisions:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .

As Ginsburg notes in her dissent, Kennedy's "way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . ." Kennedy's ruling implies that the 5-male majority in Carhart (and the hundreds of men in Congress who enacted the law) can make better decisions than women who want to undergo this procedure after consulting their medical providers. Kennedy's gender-based perspective, however, has not eroded his prestige among conservatives.

Justice Thomas
Finally, Justice Thomas has discussed race by drawing upon his experiences as a black person who grew up in Southern segregation (see this series of articles discussing his autobiography). For example, Thomas always agrees with conservatives in affirmative action cases, but he usually writes separately to discuss his views about the negative impact of affirmative on blacks -- a position that many blacks reject.

Thomas also wrote a passionate dissent in Virginia v. Blacks, a case in which the Supreme Court invalidated a Virginia law that made cross-burning a crime. A majority of the Court argued that the statute infringed the First Amendment. And while there were several dissenting opinions, Thomas, who admits growing up in fear of the Ku Klux Klan, wrote a dissent, in which no other justice joined. Thomas argued that cross-burning is never intended to do anything other than convey a threat or to intimidate individuals:

That cross burning subjects its targets, and, sometimes, an unintended audience. . .to extreme emotional distress, and is virtually never viewed merely as "unwanted communication," but rather, as a physical threat, is of no concern to the plurality.

Thomas's experience living in fear of the KKK undoubtedly shaped his opinion in this case. Nevertheless, Thomas remains a respected jurist among conservatives.

Final Thought
Despite the use of race- and gender-based decision making by many Supreme Court justices -- including beloved conservatives -- Sotomayor's opponents continue to argue that she is unfit for the bench. As conservatives question Sotomayor's impartiality, they should also question the blatant double-standard they are using to challenge her nomination.

For links to all of my articles on Sotomayor, CLICK HERE.

Conservative Judicial Empathy? You Betcha!

Obama's statement that he would like a Supreme Court justice who is both intelligent and who shows "empathy" has created quite a swirl of activity. If I were president, I am fairly certain I would not have used the word "empathy" to describe a trait of potential nominees because it is both amorphous and subject to great political distortion and abuse. Nevertheless, for reasons that will soon become apparent, much of the conservative melodrama over the term demonstrates a tremendous measure of ignorance regarding the details of Supreme Court rulings or simple hypocrisy.

Conservative Judicial Empathy
Obama has elaborated the idea of empathy, stating that he believes a Supreme Court justice should understand "how our laws affect the daily realities of people's lives" and should identify "with people's hopes and struggles."

Using Obama's own words, I have compiled a listing of examples where Justices Scalia and Kennedy have expressed empathy in their judicial opinions. If conservatives believe that empathy is a bankrupt concept, then they should reject its use by rightwing and right-leaning justices.

Justice Scalia
In Johnson v. Transportation Agency of Santa Clara County, the Supreme Court rejected the claim of Paul Johnson, a white male employee who alleged that his employer unlawfully promoted a woman over him by taking sex into account pursuant to an affirmative action plan. Scalia's vigorous dissent argues that advocates of race and gender equality are politically powerful and that the Court's ruling would encourage employers to hire "unqualified" women and persons of color in order to avoid costly litigation.

Exhibiting a great deal of empathy, Scalia concludes that poor white males are the true victims of discrimination and in need of judicial protection:

[T]he only losers in the process are the Johnsons of the country, for whom [the antidiscrimination statute] has been not merely repealed but actually inverted. The irony is that these individuals -- predominantly unknown, unaffluent, unorganized -- suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.

Scalia satisfies Obama's empathy standard because he uses Johnson's experience to discuss "how our laws affect the daily realities of people's lives" and to "identify with people's hopes and struggles."

In United States v. Virginia, the Supreme Court invalidated the Virginia Military Institute's policy of excluding women. Scalia's lone dissent expresses empathy with citizens of the state and with male students:

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.

Scalia portrays VMI as the victim of modern social movements that seek to dismantle traditional notions of gender. For example, he quotes at length from a book entitled "The Code of a Gentleman" that VMI required all first-year cadets to possess. The book lists traditional concepts of manhood, which Scalia believes, regrettably, that the Court's ruling will destroy:

A gentleman . . . [d]oes not speak more than casually about his girl friend. Does not go to a lady's house if he is affected by alcohol. . . Does not hail a lady from a club window. . . [N]ever discusses the merits or demerits of a lady. . . Does not slap strangers on the back nor so much as lay a finger on a lady. . . .

I do not know whether the men of VMI lived by this code . . . But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

If Obama's search for empathetic justices appalls conservatives, then Scalia's emotional discussion of male valor should anger them as well.

Justice Kennedy
Justice Kennedy is a right-leaning moderate. In 2007 he authored the Court's ruling in Gonzales v. Carhart which upheld the federal prohibition of "partial-birth abortion." A particular passage of Kennedy's ruling empathizes with women whom Kennedy believes would later regret having the procedure:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . .Severe depression and loss of esteem can follow. . . .

It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

As a male, Kennedy cannot draw upon any personal experience as a person who has terminated a pregnancy. Accordingly, he can only empathize with women's feelings as stated in Court submissions, although he concedes the absence of "reliable data" on this issue. Based on his empathy and concern for this particular class of women, notwithstanding the lack of clear evidence, Kennedy argues that Congress can ban the procedure for all women -- even though the Court had invalidated a similar state law in 2000.

Finally, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court invalidated policies designed to maintain racial integration public schools. Although Kennedy joined the four conservatives to create a majority ruling invalidating the policies, he wrote separately to disagree with the conservatives' assertion that states did not have a "compelling interest" in preventing racial segregation in schools. Kennedy, however, prefers more subtle policies to achieve this goal. Kennedy explains that explicit, rather than covert, race policies harm individual "dignity":

To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.

Like Scalia, Kennedy fulfills Obama's "empathy" test because he expresses his own understanding of how race-based legislation "affects the daily realities of people's lives." If conservatives believe that Obama's empathy standard is illegitimate, then they should condemn Kennedy for modeling it in his opinions.

Conclusion
The preceding analysis discusses just a few of the many instances of conservative judicial empathy. Conservatives judges have "empathized" with white male discrimination plaintiffs whom they view as victims of feminism and civil rights. They have empathized with hypothetical women whom they feel are so distraught over their choice to have partial-birth abortions that their anxiety justifies a complete ban of the procedure. They have also empathized with whites subject to diversity and integration policies in the educational setting on the grounds that the conscious use of race offends their dignity. If conservatives truly believe that empathy has no role in judging, then they should reject displays of empathy among conservative justices. Do not hold your breath.

Update: More on Conservative "Empathy"
Talking Points Memo via Media Matters has a great report on President Bush and empathy. Apparently, when he introduced nominee Clarence Thomas, he marketed him as a "man of great empathy."

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Charlie Savage recently published an article in the New York Times that discusses a 2001 speech that Judge Sonia Sotomayor delivered to a Latino and Latina law student group at the University of California at Berkeley. The speech, "A Latina Judge's Voice," discusses many different perspectives on the impact of race and gender upon judges.

In her speech, Sotomayor plainly rejects the idea that a monolithic perspective defines women and people of color, and she explicitly embraces the need to divorce judging from personal experience. Nevertheless, she recognizes the limitations and difficulties associated with this aspiration. Specifically, Sotomayor argues that:

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. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.

Sotomayor's comments have raised eyebrows at The Volokh Conspiracy. Blogger Jonathan Adler, for example, accepts the proposition that individual experiences inform judges' perspectives. Nevertheless, he interprets Sotomayor's arguments as embracing "the idea that judging is ultimately an exercise of power instead of judgment" and that "a judge's personal experiences are license to impose his or her preferences through an exercise of judicial power." Adler finds this idea "troubling." Adler's co-blogger Orrin Kerr believes that Sotomayor's empirical analysis of the impact of experience on judging is "unexceptional," but he finds that her normative discussion of the value of experience in judging will lead to "different conclusions" among readers.

Sotomayor's Position Is Far More Nuanced And Less Extreme Than Adler's Description of It
Sotomayor does not embrace an extreme view of judging as a battlefield of power over logic and reasoning, as Adler's description suggests. If anyone doubts this, the SCOTUS blog has posted an analysis of some of the 150 civil cases Sotomayor has authored as a court of appeals judge (a review of her criminal law opinions is forthcoming). The Supreme Court has reversed only two of her civil rulings, and the liberal justices, including Souter, dissented in both instances (By the way, the SCOTUS blog finds it peculiar that so many of Sotomayor's critics fail to cite her opinions in their work).

Rather than endorsing fatalism as Adler's analysis suggests, Sotomayor is examining the difficulty that judges encounter when they try to remove themselves from their own life experiences. Her speech demonstrates that she comes to these issues with a great deal of complexity, as a good legal theorist or jurist should. Accordingly, though Sotomayor explicitly states that she agrees that judges must neutralize the weight of their own personal experiences, she rejects the impulse to analyze this process simplistically:

I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

This passage exhibits a positive humility that so many lawyers, legal scholars, and jurists lack. Perhaps nuance is off the table in this cut-and-paste "gotcha" generation, but if people actually take the time to read Sotomayor's entire speech, they might become more impressed by her (as I am). Sotomayor's speech on race and sex is refreshingly honest and provocative, particularly for a judge on the shortlist of potential Supreme Court nominees.

Remarkably, none of the reviews of Sotomayor's speech discusses similar arguments made by other judges. By failing to do so, Sotomayor's critics do not provide an appropriate context for analyzing her comments, and as a result, they are able to portray her position as extreme and "troubling." But very esteemed judges have made strikingly similar observations concerning the role of race and gender in the law.

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.

O'Connor made a similar argument about race in her majority opinion in Grutter v. Bollinger, a ruling that upheld the use of affirmative action by the University of Michigan Law School, based on the school's asserted need to create viewpoint diversity. 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.

Justice Ginsburg
As a former feminist lawyer, Justice Ginsburg has a long record of work related to gender equality. But even on the bench, Ginsburg has embraced gender as a source of diversity, and her opinions have challenged male judges for embracing gender-based stereotypes.

In United States v. Virginia, the Court invalidated VMI's exclusion of women. Justice Ginsburg's opinion for the Court, however, approvingly quotes a long list of Court precedent in order to hold open a possible role for permissible gender-based decision making:

Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .

"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . to advance full development of the talent and capacities of our Nation's people. . .But such classifications may not be used, as they once were, . . .to create or perpetuate the legal, social, and economic inferiority of women.

Sotomayor's comments mirror Ginsburg's majority opinion for the Court. Ginsburg asserts that gender has a proper place in the law -- "for celebration" rather than "denigration." Similary, Sotomayor argues that gender-based decision making is not inherently inappropriate. Instead, she believes that as a judge, she must do as "the Supreme Court suggests. . .[and] continuously. . .judge when those opinions, sympathies and prejudices are appropriate." Their positions are indistinguishable.

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, nothwithstanding 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.

Justice Kennedy
Currently, Justice Kennedy is a moderate judicial icon. He is often the swing vote in the Court's 5-4 rulings. Although Kennedy receives praise for his judicial record, recently, he authored a decision that reflects very paternalistic and outmoded notions of gender -- the very type of decision making the Court's equal protection precedent prohibits. In the case, Gonzales v. Carhart, the Court sustained the federal partial birth abortion statute. Justice Kennedy's majority opinion discusses "legitimate" reasons for the law. Justice Kennedy makes the following argument about women in order to validate the law:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .

While many women certainly form love-bonds with their children, many men do as well. Some men and women, however, do not. And women decide, for many reasons, to abort pregnancies. Kennedy's nostalgic argument about the wonderment of mother and child leads him to the sweeping conclusion -- admittedly unsupported by any specific statistical evidence -- that in order to protect women from making an uninformed choice, Congress can outlaw partial-birth abortion altogether. Kennedy's analysis portrays women as unsophisticated consumers of medicine and as emotionally unbalanced.

Ginsburg's dissenting opinion uncovers the gender bias in Kennedy's reasoning:

[The majority concludes without any] reliable evidence [that]: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem". . . . The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. . . .Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety [because the statute lacks a health exception].

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . .

Though today’s majority may regard women’s feelings on the matter as "self-evident". . ., this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped. . .on her own conception of her spiritual imperatives and her place in society". . . .

Final Thoughts
Many of the examples this article provides of judges accepting the reality of race- and sex-based decision making within law concerns jurors. But court doctrines prevent judges from overturning or even inquiring about the basis of jury decisions in most instances. Accordingly, juries have a central role in law -- particularly in criminal cases. Furthermore, it would take a lot of argumentation and empirical evidence to demonstrate that these same identity categories and experiences do not impact judges, and most of the evidence, where available, seems to confirm the opposite. In fact, Sotomayor's speech cites to several empirical studies which demonstrate that in particular types of cases judges tend to reach different outcomes depending on their race or sex.

The reality of race and sex does not mean that judges discard judgment and analysis or that they abandon precedent and rely solely on force and power. Instead, Sotomayor's position acknowledges what psychologists and sociologists deem as self-evident: Decision making takes place through a prism of experience. Having diversity, rather than homogeneity, actually permits judges to isolate "fact" from identity-based biases. I applaud Sotomayor's honest reflection on this subject.

Related Readings on Dissenting Justice:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor