Bench Memos

Sotomayor’s “Prejudices” and “Relative Morality”

Many of us have seen, and quoted, Judge Sonia Sotomayor’s remarks in a 2001 lecture about the virtues of a “wise Latina” as compared with a “white male.”  This morning, on Bill Bennett’s radio show, I read a bit more of that lecture, which was published as “A Latina Judge’s Voice,” 13 Berkeley La Raza Law Journal 87 (2002).  These lines are from the last of its seven pages:

I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.  I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

    There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. . . .

These remarks prompt some questions, such as: What exactly do you think are those occasions when your “sympathies and prejudices are appropriate” in reaching a decision?  And when did the Supreme Court “suggest” that there would be such occasions in the exercise of the judicial function?  Why do you think that judging is a “series of choices” that you “must make” rather than a series of discernments of those choices that the law has already made?  What have you learned in your study or practice of law and judging that makes you believe that judging is an exercise in “morality”?  Is there a role for moral discretion for the judge interpreting the Constitution or a statute–the principal business of federal appellate judging?  What would that role be?  And while it’s refreshing that you recognize the “danger embedded in relative morality,” yet you appear to embrace it nonetheless as inevitable for a judge; so what do you mean by “relative morality”?  It sounds like “relativism,” or the notion that morality is inherently subjective, to be guided by the passions rather than reason.  It’s a dubious business to assign to judges the role of moralizers or moral philosophers in the first place; isn’t it infinitely worse to suppose they are to be, not moral reasoners, but moral emotionalists?

Just asking.

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