May 30, 2009
Sotomayor: Clearly wiser than any juez masculino blanco
UCLA law professor Eugene Volokh is troubled by Judge Sonia Sotomayor's claim that Latinas make for better judges than white men, concluding that taking the statement in context -- as her defenders demand -- does nothing to ameliorate the wrongheadedness of the belief, or the underlying logic.
[T]he statement – read in context – appears to be that Latina womanhood gives people something of an edge when it comes to wisdom, richness of experience, and decisionmaking over white men.
That strikes me as factually implausible; white men strike me as no less likely to have wisdom or rich experience as Latino women, even if on balance they may on average have slightly different kinds of experience.
And it strikes me as very much the wrong attitude for a judge to take, and to publicly express.
Perhaps this was just inartful wording, and Judge Sotomayor meant to say something else; and of course this is just one sentence out of a long legal and judicial career.
Still, I think the sentiments that the statement on its face expresses are not the sorts of sentiments that we would like our Supreme Court Justices to have, whether those sentiments would refer to the allegedly greater wisdom of Latino women or white men.
I think Volokh gives Sotomayor too much credit with his "just inartful wording" line; she was speaking from a prepared text, and repeated the claim in an article, too. Given that information, Occam's razor demands we ask, "Is it likely that the opinion expressed -- more than once, in written and spoken form -- is either: (a) An inadvertent slip of the tongue (and pen); or (b) The speaker merely expressing what she truly thinks?"
Assuming that an experienced federal judge who speaks from a prepared text she presumably wrote herself, far enough in advance to read through at least once to check for "inartful wording" and other things a judge ought not to say, nonetheless proceeds to laud the superiority of Latinas over juez masculino blanco, there logically follows another question: Could such a judge even qualify for jury service?
National Review's Andy McCarthy reminds us:
In every trial — every single trial — judges solemnly instruct American citizens who are compelled to perform jury duty that they will have a sworn obligation to decide cases objectively — without fear or favor. If a person is unwilling or unable to do that, if the person believes he or she has a bias or prejudice, especially one based on a belief that people are inferior or superior due to such factors as race, ethnicity, or sex, the person is not qualified to be a juror.
Indeed, prospective jurors are told that they are not qualified if they harbor even the slightest doubt about their ability to put such considerations aside and render an impartial verdict. If the judge or the lawyer for either side senses bias, the juror is excused "for cause" — the parties are not even required to use their discretionary (or "peremptory") jury challenges to strike such a juror; rather the judge makes a finding that the juror is not fit to serve.
[...]
Would Judge Sotomayor be qualified to serve as a juror? Let's say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to "transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law"; and that there are "basic differences" in the way people "of color" exercise "logic and reasoning."
If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?
Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?
Well, should we?
Posted by Mike Lief at May 30, 2009 07:45 AM
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Comments
She would be excused for cause......as a "bigot," that is; she is obstinately devoted to prejudices, especially when her views are either challenged, or proven to be false or not universally applicable or acceptable.
Posted by: schmedley at May 30, 2009 08:37 PM