Much attention continues to focus on Judge Sotomayor’s “wise Latina” comments, but her additional observations are not reported. She also stated (in the same, often distorted lecture): “I . . . 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. . . . 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[s] simply do not care. . . . 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.”
Judge Sotomayor’s forthright statements unmistakably demonstrate her willingness to serve as a truthful and self-disciplined jurist. She should not be punished for stating explicitly what appears implicitly in the rulings of Supreme Court jurists—106 white males out of a total of 110—since the beginning of our legal system: Human wisdom is individual and undefined; it develops, in sum or in part, from our experiences. This concept is not new: As early as 1837 the Supreme Court recognized in Charles River Bridge v. Warren Bridge that the most profound wisdom was exercised by “[t]he wise men who framed [the] [C]onstitution” and is guided by human experience. Judge Sotomayor’s appointment would add another layer of human experience to the Court.
Judge Sotomayor is not the first female judge to disagree with the adage that “a wise old man and a wise old woman will come to the same conclusion.” As documented by Justice Paul H. Anderson in A Tribute to Justice Esther M. Tomljanovich, Minnesota Supreme Court Justice Esther M. Tomljanovich also took issue with this maxim. According to fellow Minnesota Supreme Court Justice Anderson, “[a]s a person who had felt the sting of gender discrimination, Esther brought a fresh perspective to the bench. She knew what it was like to be on the outside looking in--to be ignored or, even worse, treated as invisible. . . . Esther’s view was that a wise woman on the bench can influence and may even change the opinion of a wise man--and vice versa.” Another distinguished female jurist, the Honorable Patricia M. Wald, the first woman to sit on the bench of the U.S. Court of Appeals for the District of Columbia Circuit (later serving as Chief Judge), also recognized in Six Not-So-Easy Pieces: One Woman Judge’s Journey to the Bench and Beyond that “[a] judge is the sum of her experiences and if she has suffered disadvantages or discrimination as a woman, she is apt to be sensitive to its subtle expressions or to paternalism.”
Why do we continue to promote the fallacy that judges, who are, after all, human beings, are not influenced by their personal experiences in the development of their own particular wisdom? Indeed, Justice Samuel Alito acknowledged that, when presented with certain cases, he takes into account the experiences of his immigrant ancestors and the ethnic, religious, and gender discrimination suffered by his Italian family members. Why do we find it so difficult to accept that a judge, who is also a Latina, when she exercises her own particular wisdom, may reach a more informed conclusion than another judge without the benefit of her experiences when those experiences are relevant and helpful to understanding the facts of a particular case? This factual assessment does not mean that she will fail to uphold the rule of law or has a race-driven agenda or believes in ethnic superiority. In the end (and, perhaps, thankfully), a Supreme Court Justice does not rule alone; nine justices participate in the decision-making process. As evidenced in the Court’s June 29 narrowly decided (5 to 4) case in Ricci v. DeStefano, we can glance at the particular wisdom of the justices from their participation in majority, concurring, and dissenting opinions.
Rather than perpetuate a myth that judges do not, consciously or unconsciously, rely on their life experiences, including membership in particular gender and race/ethnic groups, we should welcome Judge Sotomayor and her experiences as a much-needed addition to the collective wisdom of the Court. Our country’s past and present demonstrate that the Court benefits from distinct perspectives. Our country’s future requires that we move forward toward a more inclusive and diverse Court. We should welcome the special dose of wisdom and outstanding professional qualifications and experiences that Judge Sotomayor’s appointment may bring to the cumulative wisdom of the highest court of our land. Judge Sotomayor’s record and credentials should be scrutinized, as already was done in her two prior confirmation hearings, without the need to resort to disingenuous, personal attacks. I wish Judge Sotomayor and our country a fair, respectful, and dignified confirmation hearing.
Maritza I. Reyes is a post-graduate research fellow at Harvard Law School, ’08-’11.