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!