The Corner

Judging by Identity II

When George W. Bush nominated John Roberts and Samuel Alito to the Supreme Court, the members of the Senate Judiciary Committee spent considerable time analyzing the nominees’ respective interpretive doctrines. The Committee will do the same with Sotomayor.

Obviously, the best evidence for a nominee’s judicial approach comes from the opinions the judge has authored. Further guidance can be gleaned from the nominee’s articles and speeches. In this regard, Sotomayor’s Berkeley lecture merits scrutiny because it describes the nominee’s view of the decisionmaking process.

Senators should ask Sotomayor to expand upon her statement that “whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.”

Does Sotomayor contend that a judge’s interpretive approach is hard-wired to her gender and ethnicity? Does that mean that litigants should necessarily expect different decisions from a Justice Roberts than a Justice Sotomayor?

What would Sotomayor think if John Roberts had made the identical statement? Is there any doubt that several members of the Judiciary Committee would’ve declared the statement sexist and racist?

Does the Constitution have different meanings depending on one’s gender and ethnicity?

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