[This is a bit beyond the range of my usual topics here. I wrote it for Cases and Controversies, the Seattle University faculty blog. I’m cross-posting it here.]
It’s been many months now that we’ve sat through debate/discussion about whether Judge Sonia Sotomayor’s identity would (or does) influence her decision-making as a judge. (With a dazzling array of sources to link to, I choose only today’s NYT account of yesterday’s hearings.)
It’s quite clear that the “correct” answer to the identity question is that it would not influence her. Judge Sotomayor was consistent in saying that she applied the law neutrally and her advocates pointed repeatedly to her extensive judicial record. At the same time, her detractors on the committee and elsewhere pointed to some of her out-of-court remarks that suggested that identity matters — particularly the now-infamous “wise Latina woman” line from her speech, which suggested that a person with Judge Sotomayor’s background might bring something valuable to the judicial process that a white male judge would not add.
There are, of course, countless library shelves worth of perceptive scholarship devoted to law and identity. I do not propose to summarize it or add to it here. I merely want to observe that while the right answer to the identity question might be that it would not affect judicial decision making, the answer is patently implausible.
I tend to think about this from the perspective of family law — my specialty, but a field Judge Sotomayor has not encountered much, since it is the special province of the state courts. Perhaps the most well-known standard in family law is “the best interests of the child.” This is the guideline generally used by judges in order to determine how a child’s time will be divided between separating parents.
Surely a judicial determination of what is best for a child must be influenced by the identity of the judge. There is no legally or logically correct answer (though there may well be legally incorrect answers.)
Imagine two loving and competent parents, one of whom is spontaneous and creative, the other organized and methodical. The first might encourage staying up late to embark on an improvised art project, the second might ensure a regular bedtime. Which is better for a child? The answer turns in part on the child, no doubt. But it must also turn on whether the judge values spontaneous creativity over routine or vice versa. And while that may not turn on the identity of the judge in terms of race or gender or class, it may well turn on the judge’s own life experience and inclinations.
One of the Supreme Court’s most recent forays into family law offers a clear example of judicial personality at work. In Troxel v. Granville, a badly fractured Supreme Court struck down a trial court order directing extensive grandparent visitation over a fit mother’s objections. The Court noted that in ordering the visitation, the trial judge specifically referred to his own experience of benefiting from time spent with his grandparents. The Court disapproved of the trial court’s reliance on personal experience, but apparently only because the mother was a fit parent and hence her decision was entitled to deference. The Court did not suggest that reliance on personal experience would generally be improper were the case one between two parents,
It seems obvious to me that who judges are — where they come from, what they have lived through — will shape how they decide these cases. I think any family lawyer would confirm this.
This is but one small example of the type of legal question that inevitably calls judicial identity into play. The law is replete with others. What, for example, is reasonable? (A reasonable search, a reasonable belief, reasonable care….)
In fairness, Judge Sotomayor alluded to this herself. The New York Times recounts that
[Judge Sotomayor] went on to say: “In judging, I further accept that our experiences as women will in some way affect our decisions.” She later added that “my experiences will affect the facts I choose to see as a judge.” And while saying she did not know exactly what difference that makes, she said “I accept that there will be some based on my gender and my Latina heritage.”
She also affirmed that a judge’s role was to transcend personal sympathies and aspire to a greater degree of fairness. I have nothing against fairness, of course. But I am suspicious of appeals to identity-free fairness, since they often seem to rest on a presumed “neutral” stance which is, as the vast majority of Supreme Court justices have historically been, white, male and Protestant.