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More Like a Pol Than a Judge

More Like a Pol Than a Judge

By Michael Smerconish - May 28, 2009

Judge Sonia Sotomayor's 2001 speech at the University of California-Berkeley Law School is a cross-examiner's dream. Too bad in these politically correct times no senator is likely to use it as a roadmap to learn if the judge is better suited for Congress than for the Supreme Court.

The speech was titled "A Latina Judge's Voice" and offers a tremendous insight into her background and worldview, the latter apparently being that minority progress will be delayed until they are represented on the bench in proportion to their share of the populace.

The self-described "Newyorican" began by describing with fondness her roots as a "born and bred New Yorker of Puerto Rican-born parents who came to the states during World War II."

"My family showed me by their example how wonderful and vibrant life is and how wonderful and magical it is to have a Latina soul," Judge Sotomayor said. "They taught me to love being a Puertoriqueña and to love America and value its lesson that great things could be achieved if one works hard for it."

Judge Sotomayor lamented the lack of female and, especially, minority representation on the federal bench. "As of today we have, as I noted earlier, no Supreme Court justices, and we have only 10 out of 147 active Circuit Court judges and 30 out of 587 active district court judges. Those numbers are grossly below our proportion of the population."

SO WHAT do those numbers mean? Judge Sotomayor differentiated between her answer and that of Judge Miriam Cederbaum, a colleague on the Southern district bench. Cedarbaum believed, according to Sotomayor, that "judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law."

Sotomayor, meanwhile, questioned whether "achieving that goal is possible in all or even in most cases" and wondered if "by ignoring our differences as women or men of color we do a disservice both to the law and society."

And then she said:

"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."

As has been widely quoted this week, Sotomayor also discounted a notion popularized by Justice Sandra Day O'Connor that "a wise old man and wise old woman will reach the same conclusion in deciding cases."

There's no universal meaning for "wise," Judge Sotomayor noted. And, more significantly: "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."

Here's the trouble. Taken in their best light, Judge Sotomayor's remarks may simply address the simple reality that any court decision is ultimately shaped by the life experience and worldview of the jurist.

But even those judges who recognize that phenomenon will nonetheless strive for impartiality, arriving at decisions guided by a dispassionate analysis of the law. Such an approach serves us all well, as it ensures that the courts will be fair-minded, consistent and even-handed interpreters of the law.

Sotomayor, on the other hand, not only recognizes the influence of personal experience - she embraces it, advocating the exercise of judicial power in which votes from the bench are expected to line up according to sex, race and ethnicity.

There's a word for what she's advocating: bias.

Perhaps more dangerously, it's bias wrapped in superiority. She was willing, if not eager, to characterize the decision rendered by a hypothetical Latina as "better" than one by a hypothetical white male. She didn't merely say that the Latina would reach a different conclusion - she said hers would be better. Switch the sexes and ethnicities, and the disturbing tenor of her remark becomes crystal-clear.

WE EXPECT our elected officials to bring their personal experience to bear up their legislative decisions. We elect these people to vote like us, be like us, act like us. After all, we elected them. Sotomayor sounds like someone running for office in a minority district when she should be sounding like a judicial scholar.

I don't mean to pour agua fria on the celebration. This is a great moment for Latino-(or is it Hispanic-?)Americans, a large, increasingly heterogeneous group living and writing the American story every day. But as the president has shown us, we are supposed to be coming together as Americans, not Balkanizing ourself into ethnic groups.

It's a portion of only one speech (a portion directed to a specific audience), and perhaps I'm too quick to jump on what may have been an isolated remark.

But when her words are coupled with her comments at Duke law school in 2005 ("the court of appeals is where policy is made"), they suggest a mind-set that welcomes and encourages activism, and a view of the court at odds with its constitutional role.

Someone needs to engage Her Honor on an intellectual basis about the very personal views expressed in this speech. But will anyone step up the plate and so question the nation's (potentially) first Hispanic justice?

I doubt it.

But that other candidate who says that white men make better decisions than Latina women?

He's outta here. *

Michael Smerconish is a columnist for the Philadelphia Inquirer and Philadelphia Daily News. He can be heard from 5 to 9 a.m. weekdays on "The Big Talker," WPHT-AM (1210). Contact him via the Web at www.mastalk.com.

Michael Smerconish

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