Thursday, May 28, 2009

Sotomayor and Judicial Realism

1. Next time people want to place their faith in a judge, remember this name: Judge Samuel Kent. He was a judge in the Southern District of Texas who was sentenced to almost three years in prison for lying about his assaults on two women who worked for him. (See WSJ, 5/28/09, A5). Judge Kent was a federal judge--which confers a lifetime appointment. Guess who appointed him to the bench? President George Bush the First.

2. And now let's move on to Judge Sotomayor. I don't know her. I don't really care, because she'll be replacing a judge who seems to rule in a similar fashion. I'll get interested when someone replaces Alito, Roberts, Kennedy, Thomas, or Scalia. The idea, though, that she's unqualified to be a Supreme Court justice is ludicrous. She made a comment indicating that a Latina female would have a different perspective than a white male. I heard Justice Sandra Day O'Connor--a conservative Reagan appointee--talk about the exact same thing in a Santa Clara Law school lecture many years ago (around 2002).

Justice O'Connor was talking about the Gail Atwater case, where a small-town cop hauled a Texas soccer mom to jail because her kids weren't wearing seatbelts. Justice O'Connor dissented in that opinion. See Atwater v. Lago Vista, (2001). Every single justice in the majority opinion was male. Every single female justice dissented. Justice O'Connor mentioned the gender disparity in her speech with a sigh and a shaking of her head. I interpreted her body language to mean that if more women were involved, the case would have been decided differently.

It should go without saying that a person's background will influence his or her personal opinions. For example, growing up female will present someone with a different--not better, not worse--perspective than growing up male. Does a person's ethnicity or gender mean that s/he will not be impartial when applying the law? Of course not.

Why, then, should we care about diversity on the bench? First, judges hold so much power over Americans--a non-homogeneous group of people--that diversity on the bench is a laudable goal, as long as excellence is not sacrificed. Second, most of us would probably recoil at the idea of a Supreme Court that is 100% African-American, 100% homosexual, 100% Hispanic, or 100% Muslim--why is that the case, if someone's background is irrelevant? I think it's because a lack of diversity indicates that the system for selecting powerful people is flawed. Assuming there are many people qualified to be on the Supreme Court, we should be able to draw from a wide pool of applicants, not just people from one particular ethnicity or gender.

Here, Judge Sotomayor's most relevant characteristic--the diversity of her work experience--is outstanding. She has been a criminal prosecutor (government lawyer); a civil litigator (private lawyer); and even a solo practitioner.

In any case, if Judge Sotomayor is a radical judicial activist, then so is Justice O'Connor.

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