I’m grumpy that Sotomayor didn’t stand by her snark. She should have.
We all know by now what she said. But do you know the context? The context was (at least in one of the iterations; I know she has made the comment more than once and I haven’t tracked all of them down) that she was about to recite a litany of instances where old white men had reached exactly the wrong decision on pretty much every case they considered that involved race or sex discrimination for a hundred years.
We usually give those old white men a pass: cultural conditioning, you know? Simply a product of their times. What did you expect? But do you think that an African American Supreme Court justice would have joined the majority in Plessy v. Ferguson? A wise old African American would have, based on his (or her) life experience, reached a better decision than the wise old white men who actually ruled in that case.
I don’t think wise Latinas are inherently smarter or better or whatever than wise old white men. But they may make better judgments. If a case gets to the Supreme Court, it obviously isn’t an open or shut issue. It is a case where two core rights are in conflict and it is difficult to determine which should win out. Which right should prevail? And how do we decide? It is sheer lunacy to think that one’s personal experiences and background won’t come into play when making that judgment call. And in that process, I want (at least) a few people who are used to being in the losing group, the disenfranchised group, the underclass, the outsiders, the poor, etc., making that decision. People who are less likely to have the ability to identify with the underdog are, I think, less likely to fairly apply and evaluate the law. I want people like Thomas, who went through those outsider experiences. (I’ve listened to his autobiography. He sounds like Eeyore, even when narrating the happiest moments of his life. We need people like that!) I want people like Sotomayor. I want people like Scalia, who said this in his nomination hearing:
Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.
In other words, he draws on his (once-removed) immigrant experience in order to be sure that he is considering the perspective of all of the parties who come before him. That’s what I want in judges. And if they end up in places as different as Scalia/Thomas and Sotomayor, so be it.
I think this is what Obama meant by wanting a judge with empathy–the kind of thinking embodied in Scalia’s statement above and Sotomayor’s wise Latina comment. He got a lot of grief for that comment, but I can’t remember Bush getting any for saying this about choosing a new justice:
I view that quality of empathy, of understanding and identifying with peoples’ hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
I do, too. Moreover, I think it is a gospel principle that has long been ignored, but, thankfully, thrust into the spotlight by Elder Ballard’s Counseling With Our Councils. In it, he writes repeatedly about the “unique insights, experiences, and abilities” that various members bring to councils and the importance of listening to them. Relative to American constitutional law, Church policies are fairly black and white (not to mention that little bit about access to divine revelation). And yet even in that context, he recognizes the need of those in decision-making capacities to surround themselves with other people of varied backgrounds and listen to them. He repeatedly and specifically mentions the role that women should play in sharing a different perspective in the councils in which they participate.
(Note: I’m not, in this post, defending everything Sotomayor has ever said, written, ruled on, or thought about. I really don’t know that much about her rulings or other speeches. I just wish she’d stuck to her guns on “wise Latinas.”)