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

Talking Points on Souter Replacement?

Democrats in the Senate seem to have uniform beliefs about the person President Obama should nominate to replace retiring Supreme Court Justice David Souter. Senator Patrick Leahy believes that President Obama should pick someone "from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge . . ."

Similarly, Senator Arlen Specter has announced that:

I would like to see somebody with broader experience . . . We have a very diverse country. We need more people to express a woman's point of view or a minority point of view, Hispanic or African American . . . somebody who's done something more than wear a black robe for most of their lives.

Senator Harry Reid "hopes that Obama goes outside the existing legal system and finds a former governor or senator, or someone who has 'real life experiences.'"

And Obama himself has said:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook . . . It's also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

Senator Orrin Hatch, who like Specter and Leahy sits on the Senate Judiciary Committee, says that Obama will probably make the selection very quickly -- perhaps even before the end of this week. If President Obama will soon make his announcement, it is very likely that all of the Senate chatter about "life experience" represents talking points designed to create a narrative about the nominee. Stay tuned.

Cynical Outtake
The comments from these guys, espousing the virtues of nontraditional candidates, are somewhat amusing. Leahy, for example, has spent nearly 1/2 of his life in the Senate, first winning election in 1974.

Specter was first elected to the Senate in 1980. He has served in the Senate longer than any other person in Pennsylvania history. He is also the fifth-oldest person in the Senate. Furthermore, he recently switched parties in order to maximize the possibility that he will keep his job.

Reid began his career in Nevada politics in 1967. He became of member of the House of Representatives in 1982, and he became a Senator in 1987, a position he continues to hold. If voters applied the standards that these Senators want Obama to use when selecting a replacement for Souter, it is unclear whether either them would remain Senators.

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

[New and Convenient Sotomayor Link Page: Sonia Sotomayor on Dissenting Justice]

In an article published in the New Republic, Jeffrey Rosen lays out "The Case Against Sotomayor." It is a very weak case.

Rosen, a law professor at George Washington University, concedes that Sotomayor, who grew up in a low-income single-parent household in the South Bronx, has a great biography. Despite her background, Sotomayor, a Puerto Rican woman, attended Princeton University and Yale Law School. She later became the youngest federal judge in the Southern District of New York at the time of her appointment. Rosen also concedes that Sotomayor has glowing support from other judges in the Second Circuit and from her former law clerks.

Rather than analyzing traditional data on judges (i.e., bar association reports), Rosen builds his "case" exclusively by holding discussions with persons who never worked for Sotomayor. Specifically, he "interviewed" former law clerks for other Second Circuit judges and former prosecutors.

Rosen's Biased Sample
It is unclear why Rosen only interviewed prosecutors and former clerks for other judges, rather than defense attorneys, litigators, and Sotomayor's own former clerks. But it does not take a degree in statistics to realize that Rosen's sample is extremely biased and limited. Although prosecutors do not hold uniform viewpoints, given the breadth of attorneys who have practiced before Sotomayor, Rosen's exclusive reliance on prosecutors is inexcusable.

Furthermore, clerks for other judges do not have the best ability to evaluate Sotomayor. In fact, the use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic. Most clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge. Given these inherent weaknesses associated with a law clerk's opinion of a judge, Rosen's reliance upon law clerks who never worked for Sotomayor is a rather crude and unhelpful way of evaluating her qualifications.

The American Bar Association uses a much more expansive and generally accepted analysis (including talks with a broad cross-section of lawyers and judges) to evaluate judicial performance. After President Clinton nominated Sotomayor to the Second Circuit in 1997, the ABA reported that a "substantial majority" of respondents ranked her as "well qualified," while a "minority" found her "qualified."

Rosen Fails to Analyze Sotomayor's Rulings
Given Rosen's background in law, it might surprise many readers of his essay that Professor Rosen does not offer his own independent analysis of Sotomayor's rulings to support his condemnation of her candidacy. Instead, Rosen admits his own ignorance regarding Sotomayor's jurisprudence and the limits of the group of persons he interviewed:

I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities.

Despite his admitted lack of knowledge regarding Sotomayor's judicial record, Rosen urges President Obama to "satisfy himself that he has a complete picture before taking a gamble." Rosen has described Sotomayor as a "gamble" even though he admits that he has incomplete knowledge of her record as a judge. Reaching a conclusion about a person without knowledge or with incomplete knowledge of the individual's qualifications seems like a standard example of prejudice, but readers can draw their own conclusions about Rosen's motivation.

While Rosen does not independently analyze Sotomayor's jurisprudence, he mentions two cases that supposedly raise questions about her capabilities. First, he cites to a footnote in an opinion written by Judge Ralph Winter, a senior judge on the Second Circuit, which discusses a case that Sotomayor authored. Rosen says that the footnote is "unusual" and that Judge Winter finds that Sotomayor's opinion "might have inadvertently misstated the law in a way that misled litigants."

Rosen's assertion is patently untrue, and it grossly distorts the footnote's language. Winter's footnote is not "unusual." Instead, the footnote chides lawyers for misreading Sotomayor's ruling and for trying to expand the case beyond its holding:

[The party's] reading of Samaria [the opinion authored by Sotomayor] would attribute to it the overruling of a long-standing line of cases in this circuit. . . However, Samaria does not purport to address the validity of those cases in any way. Samaria's discussion of conscious avoidance related only to a sufficiency issue, and the panel thus made it clear that, on the evidence before it, the requisite level of intent could not have been found even on a conscious avoidance theory (emphasis added).

Rosen has completely misrepresented Winter's footnote in order to question Sotomayor's competence as a judge, when the footnote actually criticizes the attorney's misplaced reliance upon the opinion she authored. The ruling at issue was unanimously decided.

Rosen also mentions an affirmative action case, Ricci v. DeStefano, that is currently pending before the Supreme Court. Again, Rosen offers no independent analysis of the case. Instead, he describes it as "controversial." He also says that dissenting judge Jose Cabranes criticized the majority for not addressing the constitutional issues raised by the plaintiffs. But Sotomayor clearly did not author the "per curiam" ruling. Furthermore, the full Second Circuit voted 7-6 not to hear reargument of the case, which suggests that it was not a gross misstatement of the law or a misstatement at all.

Rosen has written a very weak case against Sotomayor. Hopefully, President Obama will not take a gamble and credit his bankrupt analysis while evaluating candidates to fill the vacancy created by Justice Souter's retirement.

[Note: Rosen has responded to some of his critics, and I have responded to Rosen's new arguments. Also, to what extent do gender and race stereotypes inform this debate?]

[Note: This article was edited to reflect that Sotomayor became the youngest judge in the Southern District of New York at the time of her appointment and that Judge Winter maintains "senior" status.]

Some citations to this article:

New York Times/Opinionator/Eric Etheridge: Supreme Court Smear

ABC News/Political Punch/Jake Tapper: Blowback in the SCOTUS Wars

Salon/Glenn Greenwald: Jeffrey Rosen, TNR and the Anonymous Smears Against Sonia Sotomayor

The New Yorker: Close Read: Insults and Impunity

Media Matters: TNR's Rosen Misrepresented Footnote in Making Purported "Case Against Sotomayor"

Recent Dissenting Justice articles regarding the Supreme Court:

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Is Justice Scalia an "Irresponsible" Judge?