Originally Posted by Pete F.
The reason I said just like Gorsuch is because both parties get their turn and both whine about the others choice.
Laura Gomez said:
"I was a speaker at the conference Sotomayor's speech kicked off, and I would like to put her comment in context.
Entitled "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation," the conference brought together -- for the first time, to my knowledge -- judges, lawyers, scholars and law students to consider the state of Latinos in the judiciary.
This shows how far we have come from interpreting the Law to interpreting by personal opinions. The blindfolded symbol of lady justice holding a scale no longer applies. The "presence" in the judiciary no longer must be those steeped in the law, who represent the specifically defined Constitution, but those who represent various factions, ethnicity, race, gender, and such things that have no defined or universal perspective.
By 2050, Hispanics will be 30 percent of the U.S. population, and yet the number of Latino judges remains tiny. The number of female Hispanic judges is even smaller; Sotomayor is one of two Hispanic women among federal appellate judges, and there are not much more than that among the hundreds of federal district judges.
The Constitution limits government. It does not limit Hispanics. Interpreting constitutional law protects the rights of everybody. Interpreting by personal ethnicity protects that ethnicity at the expense of others.
Part of the impetus for the conference was to signal the potential crisis for our courts in the 21st century if we do not get more Latino lawyers interested in becoming judges and more appointed to the bench.
The potential crisis being manufactured here is further erosion of the Constitution into unlimited, irrelevant, and divisive points of view that lead to chaotic, unpredictable government which has no basis or principle for being.
In this context, I did not find Sotomayor's comment controversial. As I look at the speech eight years later, I'm struck by how measured and careful she was in making the claim.
First, the sentence I have quoted here followed Sotomayor's acknowledgement that there is no universal definition of "wise."
A defining mark of a Judge is the use of precise, unambiguous language.
Second, she presented the statement as aspirational by using the phrase "I would hope"; she was talking as much about the ideal of diversity as its reality.
Diversity of meaning in law is not law. It is chaos.
Third, she specified that she was talking not about all Latinas and all white men but about ideal types; she invoked a "wise" Hispanic woman who has had a particular set of life experiences and white male judges who have not "lived that life" (suggesting that some white males could, in fact, bring a similar empathy and/or life experience to the bench).
None of us has lived the life of anybody else. This is stupid gibberish. It is not the life you have lived that must be brought to the court of justice. It is your knowledge of the law. Legal, constitutional justice cannot be just if it is based on one personal life experience. It must encompass all lives alike in the interface with government.
Fourth, she went out of her way to say that she thought this would be the case "more often than not," rather than all the time.
More often than not cannot be a just way to interpret the law. Justice requires boring, predictable, disinterested impartial certainty.
Finally, in the next sentence of her speech, Sotomayor went on to specify that she was addressing the dynamics of an appellate court with multiple judges (such as the three-judge and en banc panels on which she sits as an appeals court judge and the Supreme Court), rather than talking about a trial court context in which a single judge presides.
She was referencing the group dynamics on a U.S. Supreme Court of nine justices who converse publicly during oral arguments and privately during conferences over cases. In these settings, who a judge is, in all the ways that matter, undoubtedly affects his or her own thinking about cases as well as that of the other justices.
The "thinking" about Constitutional cases should not be clouded by racial or ethnic or gender points of view. Of course, Progressives elevate those points of view above actual law. It is exactly the type of "interpretation" which makes the Constitution irrelevant.
Does anyone that doubt that Justice Thurgood Marshall's identity as an African-American male or his experience as a civil rights lawyer shaped his judicial philosophy and influence his fellow justices some of the time? Most watchers of the Supreme Court have similarly concluded that Justices Sandra Day O'Connor and Ruth Bader Ginsburg have had a great impact on their colleagues in cases of particular interest to women, such as abortion and sex discrimination.
Insofar as Marshall's and O'Connor's, or Ginsberg's impact on their colleagues was shaped by the law, their race or gender would be unimportant. But when their impact was fueled by their personal "identity," then constitutional justice was not served, it was transformed into identity politics--and the Constitution was rendered moot.
Ultimately, whether, holding other things constant, women of color make "better" judges than white men is an empirical question that we are unable to answer definitively any time soon, given the small numbers of minority judges.
It is the type of question that relies on the opinion of what is "better." It is the type of question a progressive would ask. It is the type of question that makes the Constitution a matter of opinion.
That inquiry itself begs the question of quality explicit in Judge Sotomayor's comment: What makes one judge better than another? Better for whom? Some political scientists have argued that the appropriate measure is essentially political: Is the judge better for those who elected the president who nominated the Supreme Court justice?
That begging of the question is a progressive inquiry. It depends, again, not on law, but on opinion. And on politics not justice or law. Better for whom? The Constitution, as written and adjudicated, would yield the better for all. Interpretation based on identity or politics, would supposedly make it "better" for limited identities or for political agendas.
At the end of the day, a judge's race and gender may have less impact on how she decides a particular case than how the larger public perceives the court on which she sits. In a society in which African-Americans and Hispanics, in particular, report high rates of dissatisfaction and lack of faith in the courts and other criminal justice institutions, the racial and gender makeup of the judiciary has greater relevance.
Progressive Courts have been trying to satisfy the high rates of dissatisfaction of minority identities for many decades, and the dissatisfaction grows. No wonder. When law is not universal, it will not satisfy. And the more it is tailored to various identities, the more that the dissatisfactions and lack of faith will grow. Making identitarianism more relevant in the makeup of the Court, rather than insisting that the law is uniformly judged, will only lead to erosion of law with the ensuing dissatisfaction with it.
Of 111 Supreme Court justices, all but four have been white men. It's past time the nation's highest court looked more like the nation."
Laura Gómez is professor of law and American studies at the University of New Mexico. Gómez, who has a Ph.D. in sociology and a law degree from Stanford University, is the author of "Manifest Destinies: The Making of the Mexican American Race.
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