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Showing posts with label Sotomayor. Show all posts
Showing posts with label Sotomayor. Show all posts
Tuesday, July 14, 2009
Sunday, May 31, 2009
Ricci v. DeStefano and Sotomayor
Ricci v. DeStefano is the official name of the New Haven firefighters case which some have used to determine Sotomayor's views on affirmative action.
Here are few sites where you can get accurate info on the case:
- ScotusWiki - the docket.
- The oral argument before the Supreme Court.
- Scotus Blog - argument preview.
- Scotus Blog - argument recap.
- Background from the CSM.
- A WSJ story with links to audio from the appellate case.
Sotomayor, as an appellate court judge, voted to uphold the trial court's decision. Opponents have used this to brand her a judicial activist. Supporters argue that the decision was narrowly tailored to comply with the law, and so was an example of judicial restraint. Pick your poison.
Here are few sites where you can get accurate info on the case:
- ScotusWiki - the docket.
- The oral argument before the Supreme Court.
- Scotus Blog - argument preview.
- Scotus Blog - argument recap.
- Background from the CSM.
- A WSJ story with links to audio from the appellate case.
Sotomayor, as an appellate court judge, voted to uphold the trial court's decision. Opponents have used this to brand her a judicial activist. Supporters argue that the decision was narrowly tailored to comply with the law, and so was an example of judicial restraint. Pick your poison.
Saturday, May 30, 2009
My Opinion: Empathy, Human Nature and the Federalist Papers
David Brooks weighs in on "empathy-gate" in a way that reminds me of the points we covered in the Federalist Papers:
Here to me is the question: Are we at root rational creatures, or emotional creatures? We have covered ground which tells us about the importance of reason (the influence of the enlightenment in America), and the degree to which reasonableness is a criteria in legal decision making (reasonable doubt, etc...) but the Federalist Papers are full of observations about human nature, how people actually behave versus how we might want them to behave. Aquinas argued that reason was the voice of God in man. To say this suggests that our infallibilities as humans do not negate our ability to hear that voice clearly. I think the founders would have argued that we cannot hear that voice, and if we could, we would not act on it.
#10 tells us the we are prone to form violent factions and vex and oppress each other. #51 reminds us that we are not angels, and that the entire enterprise of governmental formation is meant to correct for this deficiency. I'm betraying a point of view here, but isn't Sotomayor reminding us indirectly of this observation that is at the heart of the American Constitutional system?
We may wish for judges to decide objectively, but will they in fact do so? And if not, should we compensate for this, as we compensate for the ambitions we will naturally expect exhibited by individuals who control the three departments of government? Why shouldn't we expect that judges will be influenced by their backgrounds? Isn't it inevitable? Why shouldn't we compensate for it by ensuring that individuals from various backgrounds sit on the same court so that the totality of the various points of view about justice can check and balance each other?
I always thought the success of the American governing system was that the founders had no illusions about human fallibility, and designed a system to compensate for it. The danger, as I see it, is that opponents of Sotomayor seem to imply that the current occupants on the court are truly objective and free from the biased influence of their backgrounds. This is a dangerous notion. If we disregard the evidence that backgrounds matter, then we risk having a court composed of individuals from one background (that's the point about having all white males there) and justice will inevitably be biased in the direction of their shared background, and that becomes defined as the objective, just outcome. It will hardly be that.
The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.
Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
Here to me is the question: Are we at root rational creatures, or emotional creatures? We have covered ground which tells us about the importance of reason (the influence of the enlightenment in America), and the degree to which reasonableness is a criteria in legal decision making (reasonable doubt, etc...) but the Federalist Papers are full of observations about human nature, how people actually behave versus how we might want them to behave. Aquinas argued that reason was the voice of God in man. To say this suggests that our infallibilities as humans do not negate our ability to hear that voice clearly. I think the founders would have argued that we cannot hear that voice, and if we could, we would not act on it.
#10 tells us the we are prone to form violent factions and vex and oppress each other. #51 reminds us that we are not angels, and that the entire enterprise of governmental formation is meant to correct for this deficiency. I'm betraying a point of view here, but isn't Sotomayor reminding us indirectly of this observation that is at the heart of the American Constitutional system?
We may wish for judges to decide objectively, but will they in fact do so? And if not, should we compensate for this, as we compensate for the ambitions we will naturally expect exhibited by individuals who control the three departments of government? Why shouldn't we expect that judges will be influenced by their backgrounds? Isn't it inevitable? Why shouldn't we compensate for it by ensuring that individuals from various backgrounds sit on the same court so that the totality of the various points of view about justice can check and balance each other?
I always thought the success of the American governing system was that the founders had no illusions about human fallibility, and designed a system to compensate for it. The danger, as I see it, is that opponents of Sotomayor seem to imply that the current occupants on the court are truly objective and free from the biased influence of their backgrounds. This is a dangerous notion. If we disregard the evidence that backgrounds matter, then we risk having a court composed of individuals from one background (that's the point about having all white males there) and justice will inevitably be biased in the direction of their shared background, and that becomes defined as the objective, just outcome. It will hardly be that.
Wednesday, May 27, 2009
Can Judges be Objective? Really?
Early opponents to Judge Sotomayor's nomination to the court are honing in on a sentence in a lecture she gave in 2001, where she spends a great deal of time discussing her life as a Latina. It's an interesting lecture, here's a link, and in it she asks whether we can ever transcend the experiences that shaped us and make truly objective decisions. It's an interesting question, worth a discussion in class. She is arguing that justice requires a court system compsed of individuals from various walks of life. Sounds like pluralism to me.
Anyway. Here is the sentence in context (it's in bold). Let me know if you think its as controversial as some are making it out to be:
...In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
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. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Anyway. Here is the sentence in context (it's in bold). Let me know if you think its as controversial as some are making it out to be:
...In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
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. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Tuesday, May 26, 2009
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