Justice Sotomayor, In Her Own Words

President Obama Announces His Nominee

Just two weeks ago for TheCourt.ca, and by way of a review of the outstanding biography Judging Bertha Wilson: Law as Large as Life, I articulated my defence of President Obama’s declaration to replace retired U.S. Supreme Court Justice David Souter with an “empathetic” person. Less than one week ago, the President confirmed that which many judicial observers had long predicted: Justice Sonia Sotomayor of the Court of Appeals for the Second Circuit would be nominated to fill the vacancy. She would be only the third woman and first Hispanic justice so situated, though she must endure a gruelling confirmation process as political vetters comb her judicial and personal history to assess her qualifications, credibility, and — yes — “empathy”.

Navigating the U.S. Supreme Court’s “Liberal” and “Conservative” Blocs

Nominations to the U.S. Supreme Court, unlike our Supreme Court of Canada, are almost always contentious. One reason is that several high court justices in the U.S. have assumed predictable (at times, overtly political) approaches to constitutional interpretation, so much so that two ideological blocs emerge in many of their most sensitive cases, particularly those involving social issues. Former Justice Souter, as well as Justices Stevens, Ginsburg, and Breyer may be said (very crudely) to have ascribed to a “liberal” interpretive philosophy, which demonstrates greater willingness to check legislative power by recognizing evolving conceptions of rights. The other five justices form a tenuous “conservative” majority on the court, with one justice — Anthony Kennedy — occasionally and errantly siding with the minority in a few key areas (including abortion and same-sex rights).  Any appointment to the U.S. Supreme Court, then, carries with it far-reaching implications because the composition of these voting blocs may be altered, depending on the ideologies of the outgoing and incoming justices.

While it may be premature to forecast the interpretive approach that Justice Sotomayor will adopt if and when her nomination is confirmed — indeed, Souter was appointed by a Republican president in hopes that his approach would accord with that of the more traditionally “conservative” justices — her record suggests that it may be a more reliably “liberal” one. That fact has not gone unnoticed by some Republican commentators who, looking to buttress their tenuous circumstance, have waylaid disparaging accusations against Justice Sotomayor in efforts to impeach her character — accusations which, even in this tense judicial climate, seem extreme. Specifically, flamboyant radio personality Rush Limbaugh and former Speaker of the House Newt Gingrich identify a parsed sentence from one of Sotomayor’s 2001 speeches as revealing her true sensibility.

Impugning Justice Sotomayor

At a symposium honouring the late Judge Mario G. Olmos, Justice Sotomayor delivered an address which acknowledged that dispassionate impartiality is an aspiration, though not always a reality of the judiciary, as gender and national origins necessarily colour judges’ consideration of cases. Expounding in that context, she stated, “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.”

Conservative politicos have been unsparing in their assessment of these words, directing fervent and vitriolic attacks that Justice Sotomayor is far-left, radically feminist, and even a “reverse racist”. Limbaugh went on to say that the “way to get promoted in the Barack Obama administration” is by “hating white people,” likening Sotomayor to former Ku Klux Klan leader David Duke.

Very fortunately, both the Republican National Committee and several Republican senators have distanced themselves from these accusations, opting instead to reserve public judgment until more thorough investigations are underway. They should have gone further, of course, by rebuking Limbaugh and Gingrich as playing an offensive and destructive politics with extremely important issues — not only a lack of diversity in the judiciary, but systemic and institutionalized inequalities that impede access to justice. The preponderance of such comments surrounding an historic high court appointment signals to many that the law itself, manifest in its most final vanguard, is plainly inconsiderate of life at the margins.

The Wise Old Man and the Wise Old Woman

Even if it were not patently unreasonable to characterize Justice Sotomayor’s judicial philosophy from one sentence excised from its context, I believe that the philosophy suggested by that sentence is entirely commensurate with that of a principled jurist.

Consider the U.S. Supreme Court’s recent hearing in Safford United School District No. 1 v. Redding, 08-479, for which it has received considerable criticism — not only from politicians, but also its lone female Justice Ruth Bader Ginsburg — for its apparent failure to “empathize” with a human rights claimant during oral arguments. The case involves a 13-year-old girl who had been strip-searched by high school officials looking for Ibuprofen. Dismayed by the other justices’ apparent minimizing of the girl’s humiliation, Ginsburg was prompted to report,

They have never been a 13-year-old girl. It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood. […] You know the line that Sandra [Day O’Connor] and I keep repeating … that ‘at the end of the day, a wise old man and a wise old woman reach the same judgment?’ But there are perceptions that we have because we are women. It’s a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive.

Justice Ginsburg’s position is not at all unlike that conveyed by Justice Sotomayor’s comment. Indeed, both do well to appreciate that judges’ unique social and cultural conditioning inevitably shapes their perspectives in some outcomes. Nor is Sotomayor’s statement unlike our former Justice Bertha Wilson’s celebrated pronouncement in R. v. Morgentaler, 1. S. C. R. 30 that in weighing militating factors surrounding a woman’s choice to have an abortion,

It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.

“A wise Latina woman with the richness of her experiences,” conscious of her marginality, may more fully appreciate the psychological, economic, and social consequences of her responses than a white man, unconscious of his privilege. That is not to say that Justice Sotomayor, if confirmed, will always appreciate these consequences in her judgments, or that the white male justices on the U.S. Supreme Court cannot or will not do so — indeed, all of them have demonstrated understanding of the values of different groups — but a Latina on the bench may help better attune the high court to the needs of its increasingly diverse citizenry.

Changing the Tone

Later in that 2001 address, Justice Sotomayor conceded that “I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations.” I would encourage the President and his opposition to persist in inquiring as to the extent of her limitations, as I am sure Justice Sotomayor would concede that differences result from her unique experience, but to please do so in a respectful manner. The “reverse racism” charge seems a transparent attempt at character assassination, compounding current issues of systemic inequality and access to justice while misdirecting Americans eight years in the past. Let us hope that the tenor of discussions improves in weeks to come.

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