Sotomayor and the Role of Personal Experience

Sotomayor and the Role of Personal Experience


Trying to understand what kind of justice a Supreme Court nominee will be is a bit like solving a puzzle. You have to decide which pieces (which legal decisions, which law review articles, which public speeches) are the most important to the picture and which are merely outliers. In the case of Sonia Sotomayor, a lot of critics are focusing on a speech she gave earlier this decade which was published in the Berkeley La Raza Law Journal in 2002.

Sotomayor said: “Justice [Sandra Day] 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,” she declared. “I am . . . not so sure that I agree with the statement. First, . . . 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.”

An editorial by the Wall Street Journal provides us with the going conservative interpretation of these words:

[E]ven more than her opinions, these words are a guide to Ms. Sotomayor’s likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.

But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor’s belief is that a “Latina woman” is by definition a superior judge to a “white male” because she has had more “richness” in her struggle. The danger inherent in this judicial view is that the law isn’t what the Constitution says but whatever the judge in the “richness” of her experience comes to believe it should be.

The worry is that Sotomayor doesn’t believe in immutable law but believes the Constitution and precedent should be elastic, allowing personal experience to take a place beside legal judgment in determining how our laws should be applied.

There’s some reason to think that’s exactly the kind of judge Obama wants. Yesterday he said:

“Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers,” Mr. Obama said yesterday in introducing Ms. Sotomayor. “It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court.”

Is he saying overcoming hardship is more important (or even just as important) as a rigorous intellect? As a consistent, reasonable judicial philosophy? Can you imagine what those on the left would have said if President Bush had made Samuel Alito’s religion an explicit selling point of his nomination? Obviously, all judges are influenced by their cultural beliefs and personal experiences, but to believe there’s something innately superior in a specific blend of hardship and ethnicity seems misguided, if not downright arrogant.

However, all I’ve got to work with in this post is one quote from one Sotomayor speech and a typically Obamaian celebration of diversity. Two pieces to a much larger puzzle. The job of the Senate, if they so choose to perform their job, is to determine the extent to which Sotomayor believes she can manipulate the law so it conforms to her personal understandings of right and wrong. If she’s smart, she’ll take a page from Antonin Scalia who denies his Catholicism affects his judgments, despite all evidence to the contrary. Then again, maybe Sotomayor will do less of the usual obfuscating and actually defend her experience as being a vital part of her ability to make good judicial rulings. That would make for some very interesting confirmation hearings.

  • Simon

    What “evidence” — “all” or otherwise — do you have that Scalia’s Catholicism “affects his judgments,” in a substantive sense? (I will concede, arguendo, that his view of the nature and character of law as an institution may have been influenced by the Church, see, e.g. Kannar, The Constitutional Catechism of Antonin Scalia, 99. Yale LJ. 1297 1990), but I suspect that isn’t the point you’re making.) What is the Church’s view on ERISA, for example? To which canon should I look to find the contours of the equal protection clause to, say, a case like Romer v. Evans?

    Charges that Scalia is improperly influenced by his Catholicism are easy to make, but only by generalizing and abstracting the issues in cases to the point of distortion. Moreover, they fail to account for two highly salient facts. First, Scalia is not the only Catholic on the court, and the charge that he simply follows Rome fail to account for cases where he splits from other Catholics on the Court. What should we make of those cases? Assuming, dubitante, that there is a “Catholic” answer to the legal issues, why assume that Scalia’s position represents it, rather than, say, Brennan’s, or Roberts’? Second, Scalia rarely writes for himself alone, and the charges that he simply follows Rome fail to explain — indeed, cannot explain — why, if there are not good non-Catholic reasons for his conclusions, non-Catholic justices have joined those opinions. Rehnquist, Souter, Ginsburg, and Breyer have joined Scalia’s opinions, but are not Catholics, and Thomas was joining Scalia’s opinions long before he returned to the Church in the late 1990s. And if there are good non-Catholic reasons for a result, on what basis do we conclude that Scalia’s conclusion arises from improper personal considerations?

    I suppose that one advantage of the nomination is that it obliterates the left’s (always diaphanous) talking point about a “Catholic majority.” Remember those editorial cartoons we saw after Carhart with five Justices wearing mitres? And Prof. Stone’s comments? Those don’t work when there are Catholics on both sides of the decision, as there assuredly would have been in Carhart had Sotomayor been on the court, and as there assuredly will be in the next controversial abortion case. (No matter which side of the abortion and Roe-Casey issues one falls, one must recognize the realpolitik that, had Sotomayor not sworn a blood oath to uphold Roe-Casey, she would not be the nominee. This most savvy of Presidents would not leave such a matter to chance.)

  • Paul

    To use a baseball analogy-Obama hit a double, a woman and a Hispanic !! Is he politically savvy or what ?

  • kranky kritter

    Simon, I don’t think Alan said “improperly.” As in “imporperly influenced.

    In this case, I think the proper adverb, one which goes to the very crux of the argument, is inevitably.

  • wj

    It might be worth going back and reading the whole Sotomayor speech. The more context I see, the more I notice things like her paragraphs to the point that who any justice owes those before her is to constantly check her assumptions and beliefs, to see which are appropriate. In that part, she sounds not at all likely to be swayed by the circumstances of those in front of her. She sounds, in fact, like most of the thoughtful conservatives I know.

  • kranky kritter

    That’s a great point wj, and I have seen such statements. And had the same reaction. And as always, we are just as well-served by continuing forward from there, to measure such statements against actual actions. In this case, her prominent decisions.

    We all have ideals with blind spots. Not throwing Sotomayor under the bus. Just wondering. Because it seems to me that some of her conservative-sounding statements of ideals may not be in consonance with some of her decisions.

    Which makes her human. What else it makes her is each person’s mileage, I guess.

  • Nick Benjamin

    I would remind all the self-righteous blow-hards who think they are clearly not biased by their experiences because they just aren’t to take a long hard look at one recent case.

    You remember some kid said a 13-year-old honor student had Ibuprofen, and as part of their investigation into this allegation the school strip-searched her. Every single Justice talked about their personal experience. The only Justice who seemed sympathetic to the young woman was also the only female Justice.

    Most of the time this won’t matter. But we don’t hire the Supremes to decide most cases. They get the tough ones. Such as figuring out whether strip-searching 13-year-old girls for Advil is a reasonable violation of privacy rights.

  • Simon

    KK, I think it’s fairly implicit in the insinuation that Scalia’s legal conclusions are substantively influenced by his Catholicism.

  • kranky kritter

    And in your mind, substantively = improperly? Ok. We can agree to disagree along those lines.

    I say inevitably because all I expect is a good faith effort by folks to overcome whatever inherent biases come along with their lifetime experience package. I expect failure or at least imcomplete success, but I expect a good faith effort.

    For me, it’s about metacognitive awareness…”I tend to lean towards x, so I’ll try to take that into account… .” But in the end, formative is formative. Scalia is informed by his catholic upbringing. I am fine with that absent evidence suggestive of overt favoritism to papal policy.

  • Simon

    I do think that if one’s legal conclusions are governed by one’s faith, that’s improper. That’s not to say it doesn’t happen, but “[t]he power of judges to ‘say what the law is’ comes from a belief that there is law to declare. That belief can be sustained only when [they] honor the limits on the original decisions, for they are every bit as important as the ends in view.” American Jewish Congress v. Chicago, 827 F.2d 120 (7th Cir. 1987) (Easterbrook, J., dissenting). The lawsaying function of the judiciary is not “to pronounce a new law, but to maintain and expound the old one.” 1 Blackstone Commentaries 69. That distinction – that clarification of the role of the judiciary – is why it is lazy to conclude that Scalia must be substantively influenced by his religious views.

    Certainly, Catholics in public office are called on to follow the teachings and laws of the Church, see 1983 CIC §§ 11-12 (“Merely ecclesiastical laws bind those who have been baptized in the Catholic Church or received into it, possess the efficient use of reason, and, unless the law expressly provides otherwise, have completed seven years of age. … Universal laws bind everywhere all those for whom they were issued.”). You don’t punch out of the Catholic clock when you punch into the Government clock. That is why, for example, some argue that pro-choice Catholic politicians should be denied communion under Canon 915 (that’s a whole other debate that we needn’t get into now).

    Consider, however, that while a Catholic who walks into McDonalds is still a Catholic, is still bound by the teaching and laws of the Church, her choice from the menu is not dictated by Rome. The Church has no teaching applicable to the age-old question of McNuggets vs. McRib. So it is with Catholic judges. Clarity on this issue, as I’ve suggested, is obscured by imprecise understandings of what courts are doing (or at least, what judges like Scalia are doing). If the role of the court in a case like Casey is to decide whether abortion is good or bad, or whether abortion should be legal, a Catholic would indeed be called to follow the Church’s teachings. But that is not the issue in Casey. The issues in Casey were about the content of American law: how the doctrine of stare decisis interacted with an earlier case, and whether the Fourteenth Amendment prohibited states from prohibiting abortion. These are questions of what states can do, not what they should to do, and the Church does not have teachings on those questions. Only by assuming that the court is deciding the fundamental moral issues rather than particular legal issues — a mistake even the best of laypeople often make — does it make sense to conclude that Scalia is being influenced by his Catholicism. That assumption is necessary to bridge the gap between the conduct (deciding cases in the court) and issues on which the Church has teachings – a point I tried to make humorously above in asking what the Church’s teaching on ERISA is.

    I suspect that Scalia was influenced by his religious upbringing in the sense that it has a lot to do with his having become an originalist, a textualist, and a conservative. And his jurisprudence is certainly suffused with those things – hence the name of Ralph Rossum’s book on Scalia’s jurisprudence, Text and Tradition. But there is nothing improper in being influenced by those things (indeed “the sources of legal interpretation generally thought to be most authoritative[ are] the text, structure and history of the constitution and laws and the court’s own precedents,” Diane S. Sykes, Reflections on the Wisconsin Supreme Court, Hallows Lecture at Marquette Law School at 22 (2006), and there are other routes to them than Catholicism.

  • kranky kritter

    Agreed. I like the application of words like suffused, and informed by… .

    I sometimes forget that catholics have a not unwarranted chip on their shoulders due to the anti-catholic special pleading they often face. Such as that which says a catholic is by necessity more governed by his or her faith than say a protestant or a buddhist or an atheist.

    I contend only that Scalia cannot fail to be influenced by his catholicism. The nature and extent is unknowable and immeasurable, but I feel sure it’s there. And when I say that, I only say so because Scalia is human. I don’t single him out. Every other justice is influenced by his or her faiths, religiously philosophical or otherwise philosophical.

    I think there is aline somewhere between the acceptable and the improper. On the accptable side is the folks whose rulings are informed by or suffused with their formative experineces, of which religious faith is often an important component. On the improper side is the folks whose rulings are, as you say, governed by their religious convictions.

    What I think I hear you saying is that for a judge, his rulings and actions can be informed by experience and convictions but MUST be governed by the written law, especially by the constitution. That seems uncontroversial in the abstract, and much more difficult in the application. Which brings us back round to the good-faith effort, and back round to that word again. Faith. Here I think we are talking about legal faith. I guess a judge must belong first to the church of law, right?