Wednesday, May 27, 2009
Earlier today, Jess Bravin, the Wall Street Journal Supreme Court reporter, asked me to look at the piece, which I did, and it seems to me the line that is getting most of the attention from easily excitable white male conservatives--"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life"--is actually not nearly the most striking line in this short (and rather thin) article. In context, it's quite clearly a play on a line attributed to Justice O'Connor, and it is followed by references to notorious decisions involving sex and race discrimination by Holmes and Cardozo, in which, of course, female or minority judges would have surely done better.
But in the same paragraph where the much-quoted line appears, she refers to the views of Martha Minow, who is quoted two paragraphs earlier, and this, it seems to me, is the really interesting bit of the article:
I accept the proposition that...as...Professor Martha Minow...states 'there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging." I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others.
She goes on to cite, in support, just a bit of the massive empirical literature confirming the apparent causal influence of race and gender on judicial decision-making.
In both this article, and her 1996 Suffolk University Law Review piece on "Returning Majesty to the Law and Politics," Judge Sotomayor sounds refreshingly Legal Realist notes, of a kind we ordinarily only hear from one other sitting judge, Richard Posner of the Seventh Circuit. To be sure Judge Sotomayor does not go as far as Posner, who calls the U.S. Supreme Court (quite correctly, of course) "a largely political court," though by the same token, Posner doesn't go as far as endorsing Professor Minow's strong claim that there is "no neutrality, no escape from choice in judging."
William O. Douglas was our most famous Legal Realist Justice. Will Justice Sotomayor be our first and most important Critical Legal Studies Justice? (I jest, of course: her judicial opinions are not nearly as provocative as these short law review items. For a more skeptical view from an academic to her left, see the comments of Professor Turley from George Washington.))
(Mr. Bravin's piece is here. It's nice to see Legal Realism get some press!)