You Be The Judge (part II)

Justice Sandra Day O'Connor once stated (I paraphrase) that a wise, experienced female judge would come to the same conclusion as a wise, experienced male judge. True or not, this embodies the spirit of the enlightenment in which individuals and especially judges should strive towards objective truth and impartiality. This has allowed great judges to transcend their negative feelings and personal prejudices against individuals and groups and rationally rule according to the law. And this enabled judges to place justice above their prejudices and perceived interests, good examples being the 12 white male judges who ruled on behalf of African-Americans in Brown Versus the Board of Education and Israeli judges who ruled on behalf of the rights of its Arab minority. We may take this for granted, but in cultures that have not been infused by the spirit of western enlightenment this would be virtually impossible. For example, in Turkey it would be inconceivable for a judge to rule on behalf of its dwindling Greek and Armenian minorities against the perceived interests and desires of the Turkish majority.

Based on her comments it appears as if Judge Sotomayor does not share Justice O'Connors vision. Rather it appears as if she subscribes to a post-modern vision of relative truths bound by the particularities of race, class and sex.

The great irony is that some of the sentiments that Judge Sotomayor expressed were used by those who opposed the admission of women and minorities into the supreme court or any position of power. While women and minorities fought to be treated as individuals who would were just as capable of white males of upholding the principles of objectivity, racists and sexists argued that they were incapable of achieving impartiality and objectivity. The great irony is that some of Judge Sotomayor's sentiments were shared by the opponents of inclusion, as seen in the following statements:

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge (Miriam) Cedarbaum, our gender and national origins may and will make a difference in our judging." Judge Cedarbaum, she noted, "believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law...Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

"...judges must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

"I would hope," she said in a 2001 lecture on law and multicultural diversity, "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."

We can only hope that these wise conclusions will include objectively applying the law on behalf of all Americans, rather than ruling according to her sentiments and agenda. But based on the Ricci ruling (see part I) I am quite pessimistic.