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Wednesday, July 15, 2009

Why I Want a Wise Latina on the Supreme Court

Republicans have been aggressively fixated on the “wise Latina” phrase that judicial nominee Sonia Sotomayor used in a speech to a group of Hispanic students at Berkley in California, in 2001. And Democrats have been trying to separate themselves and Judge Sotomayor from her own words ever since she was nominated to the Supreme Court. But I think that’s the wrong tactic. Instead, they should be embracing it. It was an appropriate phrase in a speech whose purpose was to inspire young Hispanic women to achieve success and nothing more. It did not reflect her judicial philosophy, which appears to be very much in the mainstream if you judge it by the countless opinions she has rendered from the bench.

But what if it actually had reflected her understanding of her role as a judge? Would that have been a bad thing?

I don’t believe so. I also don’t believe that Judge Sotomayor should be running from the accusation that empathy is a bad trait for a judge. In fact, it’s the Republicans who are arguing on the wrong side of that divide too.

But let’s start with why a wise Latina might be a very good thing to have on the Supreme Court bench.

All judges interpret the law. If there were one cut and dried interpretation of law, we wouldn’t need appeals courts or the Supreme Court. No ruling would ever be overturned. And there would never be split decisions.

Further, every judge brings a mixture of things to his or her judgments, including knowledge of the law, reason, emotion, personal background, and experience. That’s as true of Justices Roberts, Scalia, Alito, and Thomas as it is of Justice Ruth Bader Ginsburg or her former colleague Sandra Day O’Connor.

All judges also are activists judges. They all make their judicial decisions based on their philosophy and interpretation of law. And their decisions are forged out of their life experience. A perfect example of this was the Supreme Court’s decision in the Lilly Ledbetter (and here) case against Goodyear Tire and Rubber Company in Gadsden, Alabama.

As background, Ms. Ledbetter was one of the few female supervisors in the plant and suffered sexual harassment. Her boss told her he was opposed to women even working there. She suspected that she was being paid less and getting lower raises than her male peers. But she couldn’t prove it because Goodyear, like so many companies, forbade employees to discuss their salaries. When somebody sent her an anonymous letter detailing three male managers’ pay levels, she went to court and won back pay and $3.3 million in compensatory damages. But that decision was reversed by a higher court only because she had failed to file suit within the statute of limitations.

In a five to four decision, authored by Alito, who once held membership in a Princeton alumni association that discouraged the membership of women and minorities, the Supreme Court upheld the Appeals Court for the 11th Circuit in their reversal.

Nobody contested that Ledbetter had suffered discrimination. The reversal was because her timing was bad. The problem with this decision is that Lilly Ledbetter wasn’t sitting around and dawdling. She didn’t fail to bring the case to court sooner because she had a procrastination problem. The delay was caused by her lack of knowledge. It’s dreadfully hard to discover that you are being paid less than your peers are because in most American companies, as in Goodyear, one of the most inviolable taboos is discussing salary. Many people, in fact, never know how much less they may be making than a fellow employee. That taboo protects companies and encourages both unfairness and discrimination.

It’s hard to think that if Justice Sandra Day O’Connor, herself no stranger to discrimination, had been on the bench, she would have found for Goodyear. O’Connor, after graduating at the head of her class from law school, had to work as a legal secretary because no law firm would hire a female attorney. Can anybody honestly argue that such an experience wouldn’t factor into her decision-making process - or even that it shouldn’t factor into it?

Age and gender discrimination are hard enough to prove without having an artificial barrier that raises the bar to impossible levels and gives cover to companies to cheat hardworking people. The courts are there to protect everybody - business people, corporations, and ordinary workers. I think an all male bench, comprised of only the most privileged, does not always get that. Over the many years of our country’s history, they have proven that they don’t get it many times over. So, yes, I want a wise Latina, and one with empathy.

I’m not sure I understand why Republicans object so much to that term. It simply means the ability to put yourself in another’s shoes and to understand what they are going through. Empathy is actually exactly the quality I would want in a judge - Latina, white, male, or female. Empathy, after all, can also put you in the shoes of the victims of crime. And so can growing up in a tough Bronx neighborhood.

According to Sotomayor’s brother, Juan, whom I heard discussing this on NPR, when they were growing up, in the South Bronx, she was the big sister who protected him from neighborhood bullies. Often when the bullies would surround him, she would rush over and state, “If you want to beat up my brother, you have to beat me up too.” Apparently, she was the one in the family who would duke it out with them.

And it seems that Sotomayor continues to duke it out with the bad guys. She became a tough prosecutor who continued to defend the victims of bullies, predators, and gang members, putting them away in jail. Her empathy was for those who, like her, were struggling in crime-ridden communities to raise decent children, to protect their families, and to work hard for a better future. That’s the kind of empathetic, wise Latina I want in my corner and on the Supreme Court.

And if that is being an activist judge - well, good!


Ingrid said...

The Republicans refuse to admit that a minority could actually reach a better conclusion than a privileged white man, and they are deeply offended by her wise Latina comment. Same with the "empathy" issue, which was fine for their nominee to have (Clarence Thomas) but not for Judge Sotomayor. Empathy and the wise Latina comment were the only issues they had against her, because she has an exemplary record on the bench. She's just too smart for them.

In the meantime, the GOP has tried their best to alienate Latino voters, and they are succeeding.

AnonymousIsAWoman said...

Ingrid, I agree with everything you said - thanks for your observations!

Anonymous said...

When anyone thinks they are wiser because of their race and makes that comment they have made a racist comment plain and simple. What if a white man had made the same comment about a black man he would have been labeled as a racist.

spotter said...

We need judges who reflect our society. The Supreme Court does not. Sotomayor's confirmation will be a step, but only a step, toward that goal.

JP said...

I couldn't agree with you more, Karen. The slur "Activist Judge" is used so loosely these days that it has pretty much lost its meaning. Very few judges have ever come anywhere close to being what I would consider "activist".

My favorite talking head in all of the TV debates about Sotomayor so far, would have to be Pat Buchanan. He keeps insisting that she only graduated the way she did because of affirmative action, citing no evidence whatsoever. Buchanan's racism has become so transparent, it's laughable that he insists otherwise.
Great blog btw