In her now-famous speech at the University of California in 2001, Judge Sonia Sotomayor probably made a political mistake. She spoke the truth.
“Our experiences as women and people of color affect our decisions,” she told a law-school forum. “The aspiration to impartiality is just that – it’s an aspiration because it denies the fact that we are, by our experiences, making different choices than others ...”
Her critics have seized on another passage from that speech to label her a “reverse racist,” the oft-quoted line that a “wise Latina woman ... would more often than not reach a better conclusion than a white male.” That single word “better” has unfortunately obscured the validity of her basic point.
Every one of us makes “different choices” based on our backgrounds, and that’s why diversity is so essential in all of our major institutions – courts and legislatures, classrooms, newsrooms and boardrooms. Strike “better,” as Sotomayor probably will when she testifies before Congress next month. “Different” is more than enough to justify diversity.
This is NOT a question of quotas. It is a question of fairness, of making sure that our institutions accurately reflect America’s full range of priorities and perspectives.
What is most infuriating about Sotomayor’s critics is their unstated but unmistakable assumption that judgments rendered by white men set the standard of impartiality. If women or nonwhites reflect their own life experiences, they are somehow deviating from the norm.
This has always been a misguided concept, but even more so given the results of the last election. Fifty-three percent of the voters were women; one in four was a person of color. Their “different choices” deserve respect and recognition on the nation’s highest court.
We are NOT arguing that judges should automatically reflect the interests of the groups they represent. The law is the law, and in almost 17 years as a federal judge, that’s the standard Sotomayor has followed. Supreme Court analyst Tom Goldstein reviewed 100 race-related cases that came before her and concluded, “It seems absurd to say that Judge Sotomayor allows race to infect her decision-making.”
So how then do the “different choices” and experiences of nonwhite males affect the judicial process? The impact is not easy to define but it includes sensitivity, understanding and yes, to quote President Obama’s favorite word, empathy.
For example, a study by Christina Boyd of Washington University and Lee Epstein of Northwestern found that female federal judges were 10 percent more likely than their male counterparts to side with plaintiffs in sex-discrimination cases.
Why? Because the women knew gender bias when they saw it. And that sensitivity rubbed off on their male colleagues. When at least one female judge was serving on a three-judge panel, the men on the panel were 15 percent more likely to favor the party alleging discrimination.
Perhaps the most interesting perspective comes from Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court and since Sandra Day O’Connor’s retirement three years ago, the only female justice. In a revealing interview with Joan Biskupic of USA Today, Ginsburg described what she and O’Connor shared: “There are perceptions we have because we are women. It’s a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive.”
Ginsburg dissented strongly from a 5-to-4 ruling in the Lilly Ledbetter case, in which the court made it harder for female employees to claim discrimination based on unequal pay. If O’Connor had still been on the court, she told Biskupic, the outcome would have been different.
“As often as Justice O’Connor and I disagreed, because she is truly a Republican from Arizona, we were together in all the gender-discrimination cases,” noted Ginsburg, a liberal Democrat from Brooklyn, N.Y. “I have no doubt she would have understood Lilly Ledbetter’s situation.”
The justice was even angrier with her male colleagues during a case that involved the strip-searching of a 13-year-old girl. “They have never been a 13-year-old girl,” she said. “It’s a very sensitive age for a girl. I don’t think my male colleagues, some of them, quite understood.”
Exactly. Only one person on that court knew what it was like to be a 13-year-old girl. And none of the justices know what it’s like to be Sonia from the block, making her way in a world dominated by white males. That’s why the court – and the country – needs her.
Cokie Roberts’ latest book is “Ladies of Liberty: The Women Who Shaped Our Nation” (William Morrow, 2008). Steve and Cokie Roberts can be reached at firstname.lastname@example.org.
Copyright 2009, Steven and Cokie Roberts.