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Celebrating race and gender based, “luck-of-the-draw” justice

One of my very first cases as a government appellate lawyer pitted me against a good friend from college. After the Tenth Circuit ruled and the time for petitioning the Supreme Court expired, we discussed the case in depth.

There were at least three issues, as I recall. It turned out that my friend and I saw them exactly the same way. We agreed not just on the correct result for each, but also on how close the issues were and on the strengths and weaknesses of the various arguments we had raised.

I concluded, foolishly, that practicing law was going to be relatively easy.

It did not occur to me until years later that confluence of thinking regarding my Tenth Circuit case may not have been due entirely to the existence of an immutable logic that underlies the law. Rather, it may have had something to do with the fact that my friend and I had similar upbringings, nearly the same college education at Dartmouth, and quite similar legal educations (my friend at Harvard; me at Stanford).

This thought occurred to me as the practice of law, and the federal judiciary, became more diverse. I found that my smartest female colleagues were less inclined than their male counterparts to see certain kinds of cases exactly the way I did. The differences were not ideological; rather, it seemed to me that at the margin, our modes of analysis were slightly different.

With judges, it was more difficult to tell what was going on. You almost never have a candid in depth discussion with a judge when the case is over; your only mirror into their thinking about your case is usually a handful of questions at oral argument and the written opinion. But as the bench became more diverse, I had the impression that I was seeing less agreement in judicial opinions about what constitutes a good argument (within a law firm, I think such agreement persists; what changed, I think, was that I saw less of the surprising, down-the-line agreement that I experienced with my Dartmouth friend).

I don’t want to overstate this point. Gender, race, and ethnicity are far from the main factors that divide judges these days. A liberal Latina judge will agree consistently as to outcome with a liberal white male judge and disagree consistently with a conservative Latina judge. But if one factors out ideology (as Justice O’Connor and Judge Sotomayor were trying to do when they talked about the “wise” male, female, or Latina judge), gender, race, and ethnicity may well still be playing a role at the margin.

If so, what is the problem with Judge Sotomayor’s claims on behalf of “wise Latina” judges?

There are at least two. The first is chauvinism (or “racism” and “sexism” as some would call it). Sotomayor isn’t just saying that Latina life experiences produce differences in outlook; she’s asserting that these experiences cause Latina judges to be superior, other things being equal, to white male judges. It’s difficult to see how the self-conscious exaltation of the experiences of one ethnic group over those of another can be reconciled with the even-handed administration of justice.

Second, in her “wise Latina” statement and others she has made, Sotomayor seems to celebrate the prospect that judges will reach different decisions based on race, ethnicity, and gender. The resulting “luck-of-the-draw” justice and difficulty in knowing/predicting what the law is/will be don’t seem to bother her much.

A wiser judge would find less to celebrate. She would see the increased indeterminacy in the law as an unfortunate consequence of a generally positive development (increased opportunities for woman and minorities to become judges). She would embrace with sincerity the ideal of color and gender blindness.

Let’s hope that Judge Sotomayor does so during the confirmation process.

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