Ed Whelan has already mentioned and linked to Stuart Taylor’s fine critique of Judge Sotomayor’s speech, titled “A Latina Judge’s Voice,” published in the Spring 2002 issue of Berkeley’s La Raza Law Journal. Here are some additional thoughts.
I note at the outset that the speech is published as part of a symposium titled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation”—as if judges were supposed to be representatives rather than, well, judges. Unsurprisingly, there is a lot of bean-counting in the article (number of women judges per circuit, number of minority judges per court, etc.). And why not?: The speech acknowledges throughout that being Latina will make you a different judge than if you are not Latina (although it doesn’t really explain what those differences will be). It even cheerfully suggests in a couple of places that maybe “differences in logic and reasoning” are hardwired. In all events, a judge cannot be “objective,” morality is “relative,” and “there can never be a universal definition of wise.” All this is pretty worrisome if we are to have a rule of law.
Now, if I were Judge Sotomayor and were asked if being Latina affected the way I did my job, I would answer: Of course, anyone’s perspectives will be shaped by that person’s experiences. But what judges—especially appellate judges—do is interpret legal texts and apply them to cases, and our experiences will not play much of a role in performing that task. And even then it is problematic to suggest that ethnicity and sex can tell us what experiences someone has had and what their effect has been.
So, if someone had asked me to give a speech on “A Latina Judge’s Voice,” I would have tried to make that point early and often. I would have certainly made it at least once. But Judge Sotomayor did not make it at all.