I decided to peruse the comments delivered by the other participants in the 2001 Symposium at Berkeley, expecting to find that Judge Sotomayor’s position was fairly mainstream among the presenters at an event sponsored by “La Raza Law Journal.”
To my surprise, two of the judges speaking after her (she gave the keynote address the night before their presentations), rejected her relativism, her characterization of “[t]he aspiration to impartiality” as “just that”–a mere aspiration, and the endorsement of the use of “prejudices.” None of the judges expressly disagreed with her by name, but given that, in her words, the “focus” of her keynote address was precisely the endorsement of prejudice, the implicit disagreement was fairly palpable and was probably obvious to the audience.
First, Judge Valeriano Saucedo of the California courts, noted that, because of his experiences, he had a certain degree of understanding to Hispanic defendants, but “[t]hat does not mean that I apply a different standard of justice, because that is wrong.”
Speaking on the same panel, Judge Richard Paez (of the Ninth Circuit) was more emphatic, and emphasized that both juror and judge had a duty of impartiality. Here are his extended remarks on the subject:
“As Judge Saucedo said, we are required to apply the law fairly. I do not think that I ever have applied a different standard in judging a case involving a Latino defendant, a black defendant, an Asian defendant, a white defendant, or a multimillion dollar corporation. But, there is something about our own personal life experience that makes each of us different.
“I used to tell jurors when they entered the courtroom and took their oaths as jurors, ‘You walk into the courtroom with a lifetime of experiences, and we don’t ask you to suddenly forget all that experience, to ignore that experience.’ I asked them if they could judge fairly the case that they were about to hear. I explained, ‘As jurors, recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot – if you cannot set aside those prejudices, biases and passions – then you should not sit on the case.’
“The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in my office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that – I am viewed as a Latino judge – as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.
“I think we look at conflicts from our own life experiences. If you were to look at my life – at least my professional experience – and I’ll just start with that, I probably have a unique professional experience. If you looked at the federal judiciary and asked how many federal court of appeals judges are there that worked in legal services, as I did for nine years, I doubt that you would find many. I never worked for a law firm, a district attorney’s office, a U.S. Attorney’s Office, a State Attorney General’s office, or the Justice Department. I worked, instead, for legal services for the poor. That was my professional career. And working in that environment, representing individual clients as well as litigating larger cases, sometimes impacts the way one may look at issues or conflicts. You don’t shed that experience – you don’t leave it behind. But, when called upon to decide a case, judges have a distinct and clear obligation to apply the law fairly and justly to the parties in the case.”
Obviously, the question for Judge Sotomayor, is whether she now agrees with Judges Saucedo and Paez. In any case, Senate Republicans need to bring up Judge Paez’s disagreement with Judge Sotomayor as frequently as possible.