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July 18, 2009

When there’s no such thing as the best

I posted my post about the Sotomayor hearings over at Huffington, where I got a grand total of two comments. The second one raised an interesting point. (The first one was funny.)

Or, “Senator, would you simply prefer that the Court be comprised of the best legal minds in the nation, regardless or their race, creed, or color, despite the fact that such a concept is foreign to the race conscious liberals among us?” – Parducci

That’s a reasonable response (leaving out everything after the “despite”), but I think it’s fundamentally wrong, since it assumes there is a way to rank order legal minds. There isn’t, because there is no such order.

Look at the current Justices. You may be able to say that one particular Justice’s “legal mind” is not as good as the rest (“Judge So-and-So just isn’t up to snuff”), but there isn’t any real way to rank them in order (except perhaps by ow well their decisions accord with political sides). With heart surgeons, maybe you can look at the survival rates of their patients — and there are problems with that — but for judges, there aren’t criteria that result in a reliable, accurate, and agreed-upon quantitative ranking. Likewise, who would think there’s any sense in trying to numerically rank philosophers, historians, or chefs? You can see that a particular one isn’t in the top rank or is out of her league, but within that top rank, there isn’t a numeric ordering.

So, for nominees to the Supreme Court, the idea that we should take “the best legal minds” actually means that we should choose from among those who are highly qualified for the job. Since that class is far larger than nine, we get to choose our Justices based on many considerations, including the likely effect they’ll have on the political balance of the court and — yes — the likely effect they’ll have by bringing a diversity of experience and outlook. For the wisdom of a group is enhanced by including difference within it.

In fact, it would be interesting to see how the degree of qualification (based on whatever criteria one wants to suggest) going into the Court matches with the performance of the Justice over the course of her or his term.

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July 15, 2009

Senator, would you be ok with an all-white Court? Really?

The relevant paragraphs from Sonia Sotomayor’s “wise Latina” speech:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Sotomayor is saying something designed to inspire those against whom expectations have run: In American culture, the image of a wise judge generally is that of an old white man. Sotomayor is asking her audience to embrace a different image. In fact, she says, the very life experiences that traditionally have worked to disempower people make one wiser than those who haven’t had those experiences. The unfortunate implication of Sotomayor’s rhetoric (or, at least the inference taken by some white male Senators) is that race is the differentiator, not the experiences…an inference that does not survive reading the rest of the passage. Clearly, Sotomayor is saying exactly what all Americans are taught: We are a melting pot made stronger by the diversity of our culture.

So, here’s what I’d ask the Republican Senators who are questioning her about that line in her speech:

Senator, would you be ok with an all white, all male Court?

That is, if all else were equal, Senator, would you prefer to have a Supreme Court made up of nine white men from similar backgrounds, or a Court that includes men and women, people of various hues, and people from a variety of backgrounds?

If you’re ok, Senator, with a lily-white, male Court, you may sit down. Thank you.

If, however, you think we are better now for having some diversity among our Justices, then don’t you agree that “a difference there will be by the presence of women and people of color on the bench”? Don’t you agree that diversity strengths the Court — makes it wiser — because it brings different points of view to bear? So, Senator, you agree that one’s background affects one’s judgment, and that we are better off having multiple life-experiences represented on the Court.

So, Senator, don’t you think it’s a great for the Court to have, say, a wise Latina woman in the discussions? Me, too!

In creating a Supreme Court rather than one Supreme Justice, our founders recognized that wisdom is more reliably a property of a system than of an individual. Wisdom is most likely to emerge from a network that embraces diversity.

Especially a diversity of people who are empathetic. But that’s another issue… [Tags: ]

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July 12, 2009

Transparent justice

The Sunlight Foundation’s Daniel Schuman writes about the transparency of the Sotomayor hearings and about the extent to which the future member of the Supreme Court would support greater transparency in the courts.

There’s also a Twitter stream for news about the hearings. It’s under the name Sonia Sotomayor, but I doubt that she’s actually there twiddling her thumbs….

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