28 May 2009

Sotomayor’s Identity-Based Justice

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Janós Blaschke, The Goddess Themis, 1786

Justice is conventionally depicted in countless engraved, painted, or sculpted representations displayed at courthouses and in judicial chambers at every administrative level around the European world in the form of the goddess known to the Greeks as Themis, to the Romans as Iustitia. Justice carries a sword and a balance, and is blindfolded.

Themis’ blindfold signifies not her lack of access to reality or to the facts of the cases she is adjudicating, but her indifference to persons or affiliations, her impartiality and objectivity. Themis was not the goddess of justice as an expression of human whim or desire, but of justice in accordance with the divine order.

Judge Sonia Sotomayor, in delivering the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California, Berkeley, School of Law, expressed a very different, more contemporary view of justice.

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.” …

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. ….

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. …

[O]ne 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. …

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. 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.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.

In her lecture, Judge Sotomayor acknowledges the existence of an ideal of impartiality, but implicitly rejects the concept of an objective legal or moral order. She additionally denies that human beings are really capable of impartiality and objectivity.

In the place of the Natural Law, which guided the Greeks and Romans and the framers of the United States, Sonia Sotomayer enshrines the left’s identity politics, its narrative of the victimhood of certain groups, its indifference or hostility to others. As a judge, Sotomayor denies the possibility of transcending human partiality and prejudice. Her openly expressed relativism denies that any real distinction between justice and injustice exists in any case.

In place of justice, “as circumstances and cases require,” Sotomayor proposes to substitute personal emotion.

Her cherished personal emotions, of course, amount really to ethnic and gender-based chauvinism combined with carefully cultivated group and class grievances. Instead of believing that judges should strive to emulate the divine, modern liberalism encourages its representatives in the judiciary to sink and become “all too human,” to be their worst, their most self-infatuated and partisan selves rather than to transcend their own prejudices and animosities. The liberal judge does not aspire to be a disinterested servant of the law. The liberal judge proposes to pursue the interests of groups or persons he or she feels to be specially deserving of advocacy and assistance.

Thomas Sowell describes how Judge Sotomayor’s jurisprudence actually works when applied in reality.

Empathy” for particular groups can be reconciled with “equal justice under law” — the motto over the entrance to the Supreme Court — only with smooth words. But not in reality. Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.

When this action by the local civil service authorities was taken to court and eventually reached the 2nd Circuit Court of Appeals, Sotomayor did not give the case even the courtesy of a spelling out of the issues. She backed those who threw out the test results. Apparently she didn’t have “empathy” with those predominantly white males who had been cheated out of promotions they had earned.

In judging, better to have Themis than Thersites.

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