How not to defend Judge Sotomayor

The Federalist Society is hosting a debate about the Sonia Sotomayor nomination. The participants are Ed Whelan, Tom Goldstein, and Wendy Long (all of whom should be familar to readers of this blog), plus two law school professors, Louis Michael Seidman and David Stras of Georgetown and the Univesity of Minnesota respectively.

It’s a lively, informative debate so far, but there’s already been what I consider a howler. Professor Seidman tried to explain away Judge Sotomayor’s claim, or “hope,” that a “wise Latina” judge will make better decisions than, say, a white male judge, as follows:

But let’s look closely at what the statement really amounts to. Judge Sotomayor seems to be making two separate claims. The first claim is that in at least some cases, the experience of being a “wise latina woman” will have some effect on how a judge will think about the appropriate outcome. Again, one wonders why this assertion is even controversial. It should be obvious that a person’s background and culture affect the way in which that person sees the world. . . .

This brings us to the second claim or, more precisely, “hope”–that decisions by a “wise latina woman” will be “better.” Is it really surprising that Judge Sotomayor hopes that her own decisions will be better than decisions reached by someone else? Of course, people can disagree about whether the decisions are in fact better, but surely she is entitled to the belief that her own decisions are the right ones. It would be strange indeed if she thought that decisions reached by others who disagreed with her were better than her own.

This is “divide and conquer” analysis is sheer and transparent sophistry — the kind that gives law professors a bad name (lawyers too, though few lawyers would make such an argument because they are constrained by judges and juries). Sotomayor isn’t just hoping that her decisions will be better than someone else’s; she’s hoping, and claiming, that the decisions made by judges of a particular ethnicity and gender will be better than the decisions of other judges. And she’s claiming that this is so because of their ethnicity and gender.

It’s fine if Judge Sotomayor thinks her decisions are better than those of other judges (I assume here, for purposes of argument, that she counts herself as a “wise Latina”). But it’s quite troubling that she apparently thinks her decisions are better, not because of her intelligence or diligence, for example, but rather because she is a female Hispanic whose life experiences are “authentic” for women of her ethnicity. That’s chauvinism, if not racism. And it could easily provide the basis for favoring discrimination based on ethnicity, gender, or race. (Judge Sotomayor’s handling of the Ricci case suggests that this concern may be more than just a theoretical one).

It may very well be true that the ethnicity and gender of a judge will affect some of that judge’s decisions. But this doesn’t make it unobjectionable for a judge to consider this a phenomenom to be celebrated as the source of better decisions. Judges, and certainly Supreme Court Justices, should “hope” that the quality of their decisions stems from the traits we have traditionally looked for in a judge — intelligence, judiciousness, close attention to the facts and the law, and fair-mindedness, including an ability to minimize the extent to which prejudices and predispositions influence decisionmaking.

At her hearing, I’m sure that Judge Sotomayor will talk about these traits and eschew Professor Seidman’s analysis. Even a congressional committee controlled by Democrats is constrained by the fact that people will be watching.

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