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Sotomayor: “The facts that judges choose to see” | Hunter of Justice

Sotomayor: “The facts that judges choose to see”

by on June 5, 2009  •  In Race, Supreme Court

The following excerpt is from the infamous speech that Judge Sotomayor gave at Boalt in October 2001, later published in the La Raza journal, and which now has been demagogued endlessly by rightwingers desperate for a way to stop her appointment. In my view the speech offers not just a solid defense against charges of racism (it makes me choke even to write that), but a set of perceptive insights into the process of judging. Judge Sotomayor obviously has thought deeply about the tensions with which she must live and work as a Latina judge. I will be thrilled if she becomes a Justice of the Supreme Court.

… Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judith Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minow 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. … As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging. …

Whether born from experience or inherent physiological or cultural differences, … 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 Minow 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.

… I, like Professor [Stephen] 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. …[N]ine 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 … [that] the presence of women and people of color on the bench [will make a difference]. 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 require. 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….

[Full text of speech here]

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One Response to Sotomayor: “The facts that judges choose to see”

  1. Darren Hutchinson June 5, 2009 at 6:03 AM

    “I will be thrilled if she becomes a Justice of the Supreme Court.”

    I felt the same way after I read the entire speech.

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