“Heritage Shapes Judge’s Perspective”

Much is being made of Judge Sonia Sotomayor's ethnicity and her ocassional comments about the role that her family background and cultural heritage play in her judicial practice.  Heritage Shapes Judge's Perspective was the headline for a front-page piece about Judge Sotomayor in Wednesday's Washington Post, under a smaller topical heading entitled, Ethnic Identity.  The article highlights her ethnic heritage and the influence it has had on her law career.

Question: who is the last white male to be nominated to the Supreme Court to have similar headlines written about his ethnic heritage, to have questions raised about the way his family or cultural background shape his judicial perspectives?  We don't question the ethnic or family influences of a white male, but why not?   Are we to believe that a white, male judge is not influenced by his upbringing in suburbia or private schools, that the manner in which he looks at the law and court cases is not influenced by his experience of being raised by parents who were college educated and well connected?  Of course not!  

Surely the cultural experience of being a white, upper class male shapes how someone looks at the law, just as the cultural experience of being a working class urban latina shapes how Judge Sotomayor might look at the law.  But our society is confortable with the white male middle/upper class perspective on law and governance, and anxious perhaps about the perspective a Bronx-raised Latina might offer to the Court and our nation.  Shame on us.

A Justice Sotomayor might (at times) see in the law in a different light than does a white male justice from a priveleged background.  What makes some anxious (perhaps subconsciously) is that in some way Sotomayor may chip away at the white male hegemony over legal interpretation … that she may contribute in some way to a fresh and legitimate way of looking at the law, a way that appreciates that the law must serve the interests of Americans in the suburbs and the city, that the law must serve the daughters of recent immigrants just as much as it serves the daughters of the American Revolution.  Messing with the status quo is never easy.  But by naming someone whose life story is significantly different than the majority of Justices in the Court's history President Obama is doing precisely that – messing with the status quo.  Good for him.

A legal system that is by the people and for the people can and should be interepreted by a panel of Justices that looks something like the diverse people it serves.  Assuming that the members of that panel are highly qualified – and there is no doubt that Judge Sotomayor is qualified – we should be excited, not anxious, by the increasing diversity of the Court that serves "We the People."

About Chris Duckworth

Spouse. Parent. Lutheran Pastor. National Guardsman. Political Junkie. Baseball Fan.
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16 Responses to “Heritage Shapes Judge’s Perspective”

  1. Mary Sue says:

    I’ve just got one thing to say– Latinas representin’ in the High Court, yo!

  2. John Kahler says:

    Glenn Greenwald blogged about this – from his experience – over at Salon: http://www.salon.com/opinion/greenwald/2009/05/28/sotomayor/index.html The :Loyal Opposition” party will find anything and everything on any and all Obama court appointees, hoping something – anything – will stick. And the liberal media will continue its stenographic job of “reporting” the authoritative expertise of Carl Rove and Rush Limbaugh. Ugh.
    An interesting point raised elsewhere is that a majority on the court are Catholic, and Sonia Sotomayor is also Catholic. Should faith perspective be a point? The teachings of any church to me are much more defined in some ways than “Hispanic poor woman who goes to outstanding schools and does well in the legal field” background – but none are a measure of the person or their fitness for the appointment, though all will of course influence who that person is.
    PS, nice jacket and tie!

  3. Dave says:

    Of the President’s “short list,” there was not a single male justice. Are you really claiming that nominating someone to the highest court of the most powerful, influential nation on this planet simply because she is a female of color will best serve this country? Justice is blind, but the President is not; he is making choices not in the interest of the nation, but for self-aggrandizement.
    I know you’ll delete this post, but that’s because you’re not true to your faith and Lutheran heritage. Martin Luther would never back off from an opposing view, but you, Chris, cut and run.

  4. Chris says:

    Nobody outside of the West Wing really knows who was on the President’s “short list.” That’s just a game the media plays to attract eyeballs and keep selling advertisements …
    To answer your question, Dave, No, I am not claiming that nominating someone “simply” because she is a female of color will best serve this country. However, assuming that the candidate is otherwise qualified (in legal practice, judicial experience, and education) I think that cultural/personal background is a compelling characteristic to consider.
    After 17 years on the federal bench (and additional experience in a prosecutor’s office and in private practice), Judge Sotomayor clearly has the professional credentials to serve on the Supreme Court (in fact, her judicial experience at the time of her nomination is much more significant than the judicial experience of many of the current justices at the time of their nominations). Of course, there are probably dozens of potential nominees who have similar experience and education as does Judge Sotomayor.
    However, the President can only pick one nominee. Sotomayor has a compelling story and perspective, shaped in part by her family, cultural, and socioeconomic background. If the President used that story and perspective to help make his decision, it’s fine with me.
    PS. Dave, please use a real email address or post your blog address when commenting. Thanks.

  5. Chris says:

    I forgot this when I originally wrote this post, but prior to Sotomayor’s nomination I wrote a post about the possibility that President Obama would choose a woman or minority to fill Justice Souter’s seat. You can read it here: http://www.lutheranzephyr.com/main/2009/05/on-choosing-a-supreme-court-nominee.html

  6. Jessicah says:

    Well said Chris. Obama is naming difference in his presentation of Sotomayor. As you point out, Obama has not only picked the best candidate for the job but is also expounding upon her rich biography. Thus he is changing the discourse on diversity and difference. He recognizes that difference matters. So often we hear Christians say, “it doesn’t matter who we are, because we are all one in Christ.” I beg to differ. “Who we are” absolutely does matter!
    My grandmother always told her story. I knew that she was who she was because of the experiences she had in her life. Judge Sonia Sotomayor’s story is different than my German-American Grandmother’s…and that matters.
    We need to tell our biographies in rich detail because objectivity comes through the juxtaposition of subjectivity. The more diverse the perspectives of the court, the wiser the court will be.
    White privilege can no longer be masked as objectivity. And yet…as white people we must tell our stories honestly and confessionally.

  7. Adam Morton says:

    I’m concerned not by the notion that our backgrounds matter to our lives (obviously that’s true), but by the implications drawn here and in many other places for reading the Constitution (that is, what a Supreme Court justice does).
    That is, presumably the Constitution says a few things (I hope we can agree on this). And it’s written in fairly plain English, albeit mostly of the late 18th century variety. Now what could the influence of numerous family meals in the South Bronx (Sotomayor) or conversations with one’s ex-sharecropper grandfather in Georgia (Clarence Thomas) change about that? Can they help to uncover anything in that document which others can’t see with careful reading?
    This notion of “legal interpretation” and complaints about the hegemony over it remind very much of discussions about scripture and Rome. Surely the Bible says a few things. But if you’re a good Roman Catholic, what it says only becomes clear when an authority possessing certain charismata tells you what it says. Now that’s hegemony. That some propose a hegemony of 12 men and women over the US Constitution seems dangerous. Is this hegemony in any way diminished by introducing 1 or 2 or 6 of the 12 as people of unusual (for the court) background? Can’t we just read the damn thing?
    I guess what I’m hearing from your initial post, Chris, is that the court in its present form doesn’t quite have the charismata needed to read the law, but if you add a new gift or two(say, being Latina), then it might start to have enough. It’s funny because, if I really wanted to look for a personal “story” that helped me understand the Constitution, I’d be looking for a 250 year old white landowner.

  8. Rachel Hallowell says:

    I just think all this fuss and what seems like anxiety is a bit ironic for a nation who just elected a black President who was raised by a single mother in Hawaii. Who has higher approval ratings than the last President EVER did, as far as I know.

  9. Sam says:

    I always worry when factors that have nothing to do with the law are taken into account in legal matters. In this case, her racial makeup seems to matter more than her being wrong in 60% of the cases she decided on that made it to the Supreme Court. How would you feel about taking a class where the professor was someone who failed 60% of the tests he was preparing you for?
    When outside factors worm their way in, you wind up letting someone who slit the throats of a former wife and her boyfiend go free because a detective used the N word. When justice is no longer blind, injustice arises.

  10. Scott says:

    Sam – I’m intrigued by your claim that Judge Sotomayor was ‘wrong’ – how do you arrive at that conclusion?
    Chris – thought you were done with politics? 🙂 I think you’re absolutely right.
    Dave – by my calculations, Chris is as Lutheran as they come. You might want to check out Luther’s definition of the 8th commandment the next time you want to lob some accusations around.

  11. Chris says:

    Sam …
    I, too, would like to see what you mean by “wrong.” From my layperson’s understanding, a circuit appellate judge or appellate panel, for example, may rule appropriately in a given case by ruling according to precedent within that circuit, only to have the precedent itself (and the cases decided on that precedent) overturned by the Supreme Court. Ruling according to the established precedent of the circuit only doesn’t make a decision “wrong” … in fact, it is “right” within the framework of that particular circuit. It seems to me that a pattern of ruling according to circuit precedent would be rather “conservative” and definitely not far-reaching or radical, labels that have been attached to Sotomayor. That being said, here’s my disclaimer: my understanding of her cases and of how precedent and circuits and the Supremes all work together is thin at best … I’m a pastor, not a judicial scholar, after all.
    From what I understand, Sotomayor’s rulings have been very intelligent yet largely conventional. She has overwhelmingly ruled with the majority on her circuit … she’s no outlier.
    But about the big issue – the role her identity plays in her legal practice. Again, what she has said in speeches (most of which isn’t very radical, in my opinion) seems to belie a very solid yet non-radical practice on the bench. Ignore her speeches for a minute … are her legal opinions largely discredited in the legal community? Is she known as a judicial activist? No.
    But more. Sam wrote: “I always worry when factors that have nothing to do with the law are taken into account in legal matters.” Judge Sotomayor has talked about her ethnic identity shaping how she looks at the law, and this is seen as an “outside factor,” something that has “nothing to do with the law.” White male justices don’t speak about their ethnic identities because, well, they don’t have to – their identity and perspectives fit in with/define the prevailing identity and perspectives of society. Someone who is different – gender, language, culture, class – has to define herself and be aware of differences before she can appropriately engage the society/culture in which she finds herself. That is, white guys don’t have to talk about being white guys, because they live in a white guy world. But those who are not white males – at times, anyway – become well aware of societal cultural and power dynamics established by folks who look different than them, usually because they’re getting burned by those dynamics.
    We have the same issue in theology: a white male theologian may mention his cultural background in the introduction to the book. A Latino theologian, however, will likely dedicate a chapter to the perspective of his theology, if not weave that discussion throughout the whole book. That is, there is no “pure” perspective on theology, law, or anything – Latinos who have been reading European theology for centuries understand this.
    We approach everything in life with biases and experiences … Sotomayor is simply being very honest about the inherent, cultural perspectives that contribute to her outlook on the law. I’d claim that most white folk are not honest about their biases (myself included). We tend to claim that our perspective is “neutral” or “pure” or “academic,” free of outside influences. And so, when someone admits to a cultural perspective, we cry foul, as if having a culturally-shaped view on things is somehow wrong. But how is the perspective and life experience of an upper middle class white male any less shaped by culture, socio-economics, or family history than that of a low-income Latina from the Bronx?
    Finally, see Dick Polman’s good piece on Sotomayor’s “wrong” life experience, posted today at Philly.com – http://www.philly.com/philly/blogs/americandebate/The_wrong_life_experience.html

  12. Chris says:

    Scott – thanks for the comment.
    I’m done with partisan political blogging … you won’t see me take sides in the current VA governor’s race, for example, or ranting about particular political leaders or parties.
    But I see this debate on ethnicity as an issue of ethics and justice, not politics. Perhaps that is a fine line to toe, but I’m trying … 😉

  13. Adam Morton says:

    [i]We have the same issue in theology: a white male theologian may mention his cultural background in the introduction to the book. A Latino theologian, however, will likely dedicate a chapter to the perspective of his theology, if not weave that discussion throughout the whole book.[/i]
    True, in that a Latino theologian will likely be attempting to address a different set of issues, and his background may lead him to pick up on some elements of scripture that others may miss. However, this assumes that scripture already contains these elements–that they are there to be found. We can easily go overboard with this style of reasoning if it leads us to presume that scripture (or any other text) has a peculiar, limitless quality to it–that it somehow expands and shifts in content to match personal experience.
    Now, of course we want to say that scripture does address its reader–but if this is so, is it because it is, at bottom, a different text for a Latino vs. a white reader? I think that’s a problematic approach, as it tends to limit rather than accentuate that address. That is, if everything is determined on the basis of my perspective, then I am no longer truly addressed (made an object) by any of it. I become the measure of my world.
    As for the law, that’s even more troublesome. The entire foundation of equality under the law is the notion that the law remains the same regardless of whom it addresses. My perspective as interpreter had better not matter, or else what is being imposed on society is not law, but my own biography projected into the form of law. Is it possible that Sotomayor’s background might help her pick up more quickly on some legal issues? Of course, but not in some privileged way that any other judge couldn’t correct for with a bit of study.

  14. PS says:

    When a person travels and mixes with people of different cultures, status, ethnicity, education, economic circumstances, etc, then he can look back and see exactly how narrow previous assumptions were. This type of thing has affected my views on scriptural interpretation. I have to assume that it would affect a persons interpretation of the law. For example, one might have no clue how a certain statute might affect a person from a rural area if the judge had only lived on the east coast. Assumptions and second hand knowledge are no substitute for real experiences, but that’s all we usually have to go on.

  15. Sam says:

    Scott – I was parroting what the opposition was saying. I decided to do my own little research and found that 60% figure to be wrong. Here’s what I found:
    Riverkeeper, Inc. vs. EPA – reversed 6-3
    Knight vs. Commissioner – upheld but her reasoning was unanimously faulted
    Dabit vs. Merrill Lynch – reversed 8-0 (SMACKDOWN!)
    Empire Healthchoice Assurance, Inc. vs. McVeigh – upheld 5-4
    Malesko v. Correctional Services Corp. – reversed 5-4
    Tasini vs. New York Times – reversed 7-2
    The real number would appear to be 66%.
    My point here is that the best Constitutional minds should be sitting on the Supreme Court regardless of their race, sex, religion, fill_in_the_blank, etc.

  16. Jessicah says:

    Adam,
    I’m sorry I don’t know you very well…so you’ll have to tell me more about your perspectives and where you come from. Say more about being addressed by the biblical text? What does it mean to be “made an object?” How does the text’s ability to “mean” something in different contexts or address different subjects “limit rather than accentuate that address?” I assume the “authority possessing certain charismata” is the magisterium?
    For Lutherans, the text addresses us as both Law and Gospel. It conflicts us as if we were objects…but graces us with the promise of Jesus Christ (the Word) as if we were subjects. Because the announcer (in this case the lector or the preacher) cannot determine how the hearer will experience proclamation as either Law or Gospel (that’s the Spirit at work as the One who brings us to faith in Jesus Christ) it is also difficult to know whether the text is addressing the hearer as object or as subject. Ultimately I’m interested in your definition of those terms. (I know you didn’t use the word subject.)
    For instance, how is Magnificat proclaimed by a reader/preacher and heard by the hearer? Does it not matter what their circumstance may be at the time? Or how many times have the Beatitudes been heard by rich folks as addressing their poverty of spirit (a la Matthew)…not poverty that afflicts the poor and the oppressed (a la Luke)?
    Thoughts that you may have?

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