Over the past week, the name Sonia Sotomayor has begun to gain infamy. Watching her acceptance of the nomination, Sotomayor is likeable. Her ability to save baseball in fifteen minutes during the baseball strike of in 1995 wins her major points. Listening to her speech, she comes across as humbled while proud. She should be proud. She has achieved that about which hundreds, if not thousands, of law students nationwide dream. She stands on the precipice of history – a woman about to be confirmed to the highest court of the nation. Not just a woman, but a Latina woman. She comes from a humble background in the South Bronx. She admits that she not only worked hard but was given great opportunity. She is about to be a woman with great power.
However, to quote the Spiderman comic, “with great power comes great responsibility.” Sotomayor is about to embark upon a position of great power. Presently, the majority of pundits find themselves concerned about Sotomayor’s statement in a speech at the University of California at Berkely School of Law’s graduation in 2001 that “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Yes, a white man making the same statement would be strung up by the media. Yes, her statement has a whiff of prejudice. Yes, this is a statement that lends itself to identity politics. All of this is true.
The fear behind identity politics is that a person will look at the individuals involved and empathize with them. Empathy does not have a viable place within the law. The law stands as the last bastion of logic and reason, removed from the populace and the politics, in our country. Individuals do bring with them, however, their individual experiences. Scalia brings with him, for example, his faith. However, the problem with looking at the individuals is that feelings can overwhelm good judgment. Think, for a moment, about a teacher. A teacher must be blind to his/her likes and dislikes about a student. A teacher cannot pass a student who does not meet objectives simply because the student is likeable and tries hard. That only ends up creating great disappointment for that student in the long run. A teacher cannot fail a student simply because the student is an obnoxious brat. The student’s work is the student’s merit. Yes, a student may have problems in his/her life that get in the way of school. However, when a student makes no attempt to hand in assignments at all, that person cannot be passed simply because the teacher “feels bad for the kid’s troubles.” In the long run, that does more harm to the student than failing the student would do. The same is true with the law.
Sympathy is good to feel. Sympathy makes people human. Sympathy is exactly the quality that a good judge needs in order to be a humane person within a profession that often leaves things cold. Sympathy allows for feelings to exist. Feelings, in and of themselves, are not bad within the context of the law. Empathy, however, indicates that the person identifies with the other. Not only does the empathetic person note that there are feelings, the empathetic person feels the same as the other individual. Empathy, within the context of the law, can be dangerous.
Identity politics often allows empathy, not sympathy, to weigh greater than justice. What happens to a single plaintiff or defendant, based on the judge’s feelings about that individual, can color the outcome. At a trial court level, looking at the family history of a defendant in a criminal trial can allow for justice. At the Supreme Court level, looking only at the individual and not at the law and the greater scope of the law’s reach can create “bad law.” George Will writes, “Perhaps Sotomayor subscribes to the Thurgood Marshall doctrine: “You do what you think is right and let the law catch up” (quoted in the Stanford Law Review, summer 1992). Does she think the figure of Justice should lift her blindfold, an emblem of impartiality, and be partial to certain categories of persons?” Will is, at least partially, correct. At the Supreme Court level, the judges must be blind to many things. Their personal experiences will color their interpretations. However, these interpretations have a further ranging impact. Think about it like a Choose Your Own Adventure Book. These books had multiple outcomes, much like the law wherein different interpretations can lead to different rulings. Choosing the ending that the reader wants and working backwards defeats the purpose of making the decisions throughout the book. Making the decision when asked, as the reader goes through the book, creates the outcome based on logic and reason, if that reader thinks about the potential ramifications of those decisions. The law should neither discriminate against nor discriminate for individuals of a particular identity.
True, an individual’s experiences will always color that person’s decisions. Those in favor of identity politics, such as Leonard Pitts, Jr., may argue that “That a point so blazingly obvious even needs making speaks to the myopia afflicting many white people when the subject is race (and men when the subject is gender). It is a stark illustration of white and male privilege: in this case, the privilege of questioning the role someone’s identity plays in their promotion only when that identity diverges from the perceived norm, i.e., yours.” As a woman, I resent being told that men cannot understand gender. True, a man will never have to make the decision to have an abortion or will never have had his breasts stared at lecherously in the workplace. However, in that same way, a woman will never fear what she says being taken incorrectly and will never have to be told that while she scored well on a test she studied for her white maleness disqualifies her from being given a promotion, such as in the case of the New Haven firefighters. Not all women feel the same about abortion. Not all men feel the same about watching their words in the workplace. To argue that one woman is the “voice” of a gender or an ethnicity is to diminish that gender or ethnicity’s diversity in and of itself. Sotomayor will bring – and “will” is the appropriate word since her confirmation, barring any major dancing skeletons in her closet, is highly likely – she will bring a great deal of experience, both personal and professional, with her. The concern should be less her identity politics, than her previous rulings.
Of the six decsisions from the 2nd Circuit that have been reviewed by the Supreme Court. This is where the focus on Sotomayor should focus. Of the six decisions reviewed, four have been overturned and one was upheld but the reasoning was overruled. Of those, three of the overturned cases were more than 5-4 decisions and the overruled reasoning was a unanimous rout. These overrulings were more than just a “conservative” versus “liberal” fight, as evidenced by them being greater than the liberal-conservative 5-4 split vote. These were rulings that were based on the merits of Sotomayor’s decisions and the reasoning that she used. Most concerning should be the decision in which her outcome was upheld, but her reasoning was considered unanimously flawed. How rare for this Supreme Court to agree on something wholeheartedly. In fact, “[i]n 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a trust are only partly tax deductable. The Supreme Court upheld Sotomayor’s decision but unanimously rejected the reasoning she adopted, saying that her approach “flies in the face of the statutory language.” Knight vs. Commissioner, 467 F.3d 149 (2006) Unfortunately, tax deduction of fees paid by a trust are not sexy. In fact, other than those people well-versed in tax law, most people probably neither care nor understand the holding. The problem, however, is that not only did the court unanimously decide that Sotomayor’s reasoning was faulty, but it stated in writing that it “flies in the face of the statutory language.” Sotomayor, essentially, created law that fit her personal beliefs while ignoring the letter and/or spirit of the statute she reviewed. Indeed, for an individual that Americans are about to entrust with one of the greatest responsibilities a citizen can hold, this should be the most concerning of all the cases presented. Her outcome was not wrong. Her manner of determining it was.
The strength of a justice lies not in who that person is. The strength of a judge, at any level, lies in that individual’s ability to logically apply facts and law. The personal influences that help determine that logic will always exist. However, when a person appears to try to not just fit the law to her desired outcome but determines that the law upon which she is basing her decision is unnecessary, that creates faulty logic. This faulty logic should be looked at closely. It is this particular case that should be discussed in hearings. Sotomayor’s identity as a Latino woman is a non-issue. Her ability to determine rules of law based on both the letter and the spirit – regardless of her philosophy of that spirit – are at issue. Someone whose reasoning about a minor case is considered so faulty should be scrutinized. Her identity should not create the law. However, more importantly, the law should not rely on a person who may define her logic only by her identity. Logic, particularly at this level, needs to remain clean. This does not mean that it should be entirely removed from one’s experiences. It means that while experiences should inform, they should not control. Experiences do give greater depth to a judge’s ability to reach logical and well-reasoned rulings. However, when a judge identifies not as a judge but as something else, that logic and reasoning becomes tainted. The identity of a judge should be neither race nor gender. It should be neither sexuality nor religion. The identity of a judge should be the law.
