The American Debate: Life experience is a factor for all judges

Conservatives are in a lather over Sonia Sotomayor's frank acknowledgment that her thought process as a high court judge would be influenced by her life as a Hispanic woman. They cite such remarks as proof that she would pursue a "liberal activist" agenda with scant regard for the rule of law or judicial impartiality.

All of which prompts me to pose a few questions:

Are we supposed to believe that white male judges have never been influenced by their lives as white males? How come "life experience" is trumpeted as a scary concept only when the life in question belongs to a Hispanic female nominee? How come, whenever a white male is successfully tapped for the U.S. Supreme Court (thus far, 106 out of 110), nobody voices concern about the potential jurisprudential impact of the white male life experience?

Sotomayor asserted in a lecture eight years ago that "personal experiences affect the facts that judges choose to see," and conservatives spin it as some kind of radical concept. Maybe they could use a quick history lesson, if only to demonstrate that U.S. Supreme Court judges, even while tending to the law, have always been influenced by their life experiences.

Consider, for instance, the infamous Plessy v. Ferguson case. It all started in 1890, when the state of Louisiana passed a law requiring segregated train cars. Two years later, a man named Homer Plessy, who was one-eighth black, sat in a white car and was arrested. In 1896 the case landed in the high court, where seven judges voted to validate racial segregation. It would be the law of the land for the next 58 years.

Let's look at the ruling. First, this passage: "A (state law) which implies merely a legal distinction between the white and colored races - a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color - has no tendency to destroy the legal equality of the two races."

Now, this passage: "We (reject) the assumption that the enforced separation of the races stamps the colored race with a badge of inferiority. If this be so, it is . . . solely because the colored race chooses to put that construction on it."

Sounds to me like those white male judges were partly influenced by their life experiences in a white supremacist era. They decreed that legal racial distinctions "must always exist" and insisted that any blacks who felt marginalized by segregation were merely imagining it. In essence, the white judges were in denial about reality - as were most privileged whites of the time. As Sonia Sotomayor put it, "personal experiences affect the facts that judges choose to see."

Her point was well-illustrated by the Bowers v. Hardwick case, which reached the high court in 1986. A gay man, Michael Hardwick, had been arrested for having sex inside his Georgia home, in violation of the state sodomy law. Hardwick claimed that the state law violated his right of privacy, his ability to act as a consenting adult in his own home. But the high court ruled, 5-4, to essentially criminalize consensual gay sex; as the majority wrote, "the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy."

The swing vote was Lewis Powell, a Republican appointee who knew nothing about gay people. His earlier life experience as a Southern establishment lawyer had left him clueless. We know this because Powell essentially said so himself. During deliberations, he asked one of his law clerks to estimate the prevalence of gay people in America. The clerk (who later recounted the incident in a book) put the figure at 10 percent of the population - to which Powell replied, "I don't believe I've ever met a homosexual," which was ironic, because Powell was talking to one.

The point is that, knowingly or not, judges are inevitably influenced by their life experiences - or lack thereof. Would Powell have swung the court the other way if his life had been a tad more diverse? That's impossible to answer, but legal scholars have long reported that Powell soon came to regret his vote.

Clearly, conservatives are bothered only by certain kinds of life experience. They certainly never raised a fuss about nominee John G. Roberts Jr., who had spent much of his life in Washington as the go-to lawyer for the business community. That kind of background suited them fine. Indeed, the Roberts court has issued a long string of pro-business rulings. During the 2007-08 term, the U.S. Chamber of Commerce filed briefs in 15 cases and won 13. Are we supposed to believe that Roberts' life experience in the service of corporate interests had no bearing on his votes?

Sotomayor has only been stating the obvious. Judges are human. They naturally need to respect legal precedent, follow the law, apply the facts, and aspire to total impartiality. But they're ultimately required to make tough interpretative calls - in the words of Harvard law professor Martha Minow, "There is no objective stance, but only a series of perspectives, no neutrality, no escape from choice" - and to do that they will inevitably draw upon who they are.

As Oliver Wendell Holmes once said, "The life of the law has not been logic; it has been experience." Maybe what's needed most in our rarefied berobed priesthood is a bit more life diversity, to reflect our 21st-century pluralism. Sotomayer's conservative critics might be wise to view that diversity not as a threat, but as a celebration.