An expanded and updated version of my Sunday print column:
Conservative activists 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 an Hispanic woman. They cite such remarks as proof that she would pursue a "liberal activist" or even "racist" 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 an Hispanic female nominee? How come, whenever a white male is successfully tapped for the U.S. Supreme Court (thus far, 106 out of 110 seats), nobody voices concern about the potential jurisprudential impact of the white male life experience? Apparently, she just has the wrong kind.
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. Granted, she was overly provocative that day when she also said, "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," and undoubtedly she will rephrase that remark during her confirmation hearings. But she was trying to make a broad point about the need for a greater diversity of life experiences on the federal bench, and that's what really discomfits her critics. Indeed, Alabama Republican Sen. Jeff Sessions acknowledged on NBC yesterday that he and his party brethren have general concerns about Sotomayor's invocations of her life experience. In his words, "It goes against the heart of the great American heritage of an independent judge."
Oh really? It's a "great American heritage" for judges to ignore their own experiences? Maybe these Republicans and conservative activists 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. How could it possibly be otherwise?
Consider, for instance, the infamous Plessey 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 Plessey, 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 member of the "colored race" who felt marginalized by segregation was merely imagining it. Basically, 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 also well illustrated by the Bowers v. Hardwick case, which reached the high court in 1986. A gay man, Matthew 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 attorney had left him clueless, which helps explain why he didn't grasp the importance of the privacy issue. We know that Powell was clueless about gays, by the way, because he essentially said so himself.
During deliberations, he asked one of his law clerks to estimate the prevalence of gay people in America, since he had no idea. 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. One prominent high court nominee, for instance, had an interesting life experience as a young white guy in Phoenix, working at the polls for the GOP, challenging the voting qualifications of Phoenix blacks and Hispanics. A few years later, when he was a Supreme Court clerk, this future nominee wrote a memo declaring that "I think Plessey v. Ferguson was right and should be reaffirmed."
That would be William H. Rehnquist, and I don't recall conservatives having any problems with his particular life experiences.
Nor did conservatives have any problems with nominee John Roberts, and no wonder: Roberts' formative life experiences included growing up amidst family wealth, and (as Newsday reported) making racist and sexist jokes while working in Ronald Reagan's administration. Nor did they raise concerns about Roberts' life experience, during the '90s, as the go-to lawyer for the business community. That kind of background was right in their comfort zone. Indeed, the Roberts court has issued a long string of pro-business rulings; during the 2007-8 term, the U.S. Chamber of Commerce filed briefs in 15 cases, and won 13. Are we supposed to believe that Roberts’ past life experience in the service of corporate interests had no bearing on his votes?
Sotomayor has only been stating the obvious - just as David Brooks stated the obvious in his column last Friday: "Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events."
In other words, judges are human like the rest of us. 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 and how they have lived.
For instance, check out these remarks: "My background and my experiences have shaped me and brought me to this point...When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."
That's gotta be Sotomayor, right? Vowing to tap into her family's Hispanic immigrant experience? Getting all empathetic and emotional, just as the conservatives predict? Vowing to behave like a scary "Hispanic supremacist" (the label affixed to her last week by an anti-immigration group)?
Wrong. Those remarks was uttered by Bush nominee Samuel Alito, while testifying at his Senate confirmation hearing in 2005. He was vowing to tap into his family's Italian immigrant experience as part of his deliberative process. Somehow I don't recall hearing any conservative outcry about Alito and his life experience.
So, to review: When a white guy vows to factor in his life experience, the Republican right says zip. When an Hispanic woman vows to do the same, a southern GOP senator like Jeff Sessions asserts that such a thing violates "the great American heritage." There's a big reason why the Republicans are in serious danger of losing the Hispanic vote for at least a generation, and we're seeing it play out now.
Oliver Wendell Holmes once stated the obvious as well: "The life of the law has not been logic; it has been experience." Maybe what’s needed most, in our most rarified be-robed 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.