Obama Makes His Selection

The guessing game is over. President Obama has selected Judge Sonia Sotomayor to replace Justice Souter on the U.S. Supreme Court.

Some brief background notes. Judge Sotomayor is currently a federal judge on the U.S. Court of Appeals for the Second Circuit. She has an impressive and diverse legal background. She is a graduate of Yale Law School, has experience as an Assistant District Attorney in New York, a corporate litigator, a trial judge, and an appellate court judge. Her life story is also very interesting and inspiring. She grew up in the Bronx, her father died when she was nine, she was raised by a hard working mother. She steadily but surely advanced herself and now stands at the pinnacle of her profession. In many respects her story resembles that of the person who has appointed her, and politics aside, one marvels at the promise of the American dream being fulfilled yet again.

So what are the politics? My preliminary research indicates that the buzz words which we will hear many times during the up-coming appointment process will be "identity politics". The knock against Sotomayor will be that she comes at issues not from the perspective that "justice is blind" but from the view that "justice" and perhaps even "wisdom" depends on the identifying characteristics of the judge. The judge's "identifying" characteristics such as her race, religion, and life experiences, will influence the way she will resolve the dispute before her, and by implication the intellectual quality of that decision.

Critics will point to a talk which Judge Sotomayor gave in her Judge Mary G. Olmos Law and Cultural Diversity Lecture at Berkeley in 2001 where she asserted that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life". The talk, entitled "A Latina Judge's Voice" , can be found in (2002), 13 Berekeley La Raza Law Journal at p. 87. In her talk, Judge Sotomayor stated that she was "not so sure" that she would agree with the statement that " a wise old man and a wise old woman will reach the same conclusion in deciding cases". She noted that although some are able to understand the experiences of others, this "takes time and effort, something that not all people are willing to give", others have "limited ability to understand the experiences of others", and yet others "simply do not care".

Critics will also raise the case of Ricci v DeStefano where as part of a three-judge panel of the appeals court, Judge Sotomayor refused to rehear a case of alleged discrimination against white firefighters in Connecticut. The firefighters alleged that they were denied promotion even though they successfully completed the test requirements, because no black firefighters were eligible for advancement. This decision is currently being considered by the U.S. Supreme Court.

The proposition that the identifying characteristics and life experiences of a judge do not play an important role in his or her judging is nonsense, and certainly Judge Sotomayor cannot be criticized for pointing out the obvious. This is why we strive for diversity on the bench. The proposition, however, that some judges are "wiser" than others and will reach better decisions because of their gender, race or other identifying characteristics is to assert something that is altogether different. Perhaps Judge Sotomayor did not mean to say this and I am sure she will be questioned about it. Her talk at Berkeley however certainly went further than merely pointing out that people of different identifying characteristics see things differently.

Which brings me to my last point. Isn't it wonderful that, at the end of the process, Americans, who will be fundamentally affected by decisions of their Supreme Court, will actually know something about their newest justice? The hard questions will be asked and answered, and in this process both the questioner and the responder will have their opinions tested and shaped by the other. And I will bet you one thing. At the end of the process, even Canadians will be more familiar with Judge Sotomayor then most of us are with our own recent Supreme Court of Canada appointment, Justice Tom Cromwell.