Judge [Miriam] Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then "as not capable of reasoning or thinking logically" but instead of "acting intuitively."The last sentence is the one most commonly quoted, though some people have ended the quote with the words "white male" without finishing the sentence. Frankly, I worry more about the sentence that comes before. If "there can never be a universal definition of wise," I'm not sure if constitutional government based upon a rule of law is possible. Would it mean that no common understanding of what the Constitution means is possible? If so, then how is anyone to know which is the "better conclusion" between that of the "wise Latina woman" and the allegedly inexperienced white male? Merely saying it depends on the case and the context doesn't suffice. This would be an interesting line of inquiry at the judge's confirmation hearing.
While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, 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....
[B]ecause I accept the proposition that, as Judge [Judith] Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging....
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life....
But for those who infer from the speech that Sotomayor has prejudged certain cases as a matter of identity politics, here's one more quote as a caution.
I, like Professor [Stephen L.] Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many
issues including Brown[ v.Board of Education].However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the
bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
I might add that the deliberative process of jurisprudence goes both ways, and that Sotomayor should be as open to the perspective of others with different experiences as she would hope they will be to her perspective. I hope she'll clarify her beliefs on these points at the hearings, but that would require Senators smart enough to ask the right questions without deferring to her as a matter of party discipline. Let's see who steps up to the plate.