President Barack Obama recently nominated Judge Sonia Sotomayor of New York, a Latina jurist, to replace retiring Justice David Souter on the U.S. Supreme Court.
Prior to her nomination, there were many advising Obama to select someone at least in part on the basis of gender, ethnicity or some other disadvantaged or minority criterion.
Kim Gandy, president of the National Organization for Women, urged Obama to
nominate a woman. A woman of color would go even further toward broadening the narrow makeup of the high court, which today does not reflect the proud diversity of the United States. Simply put, one is not enough, even if she happens to be the estimable Justice Ruth Bader Ginsburg. When 51 percent of the country is female, one justice out of nine is a court out of balance.
This type of thinking -- that we should aspire to proportionate representation of the broader society in non-elective bodies -- is not new or unique. For example, when late last year the Australian government was deliberating on appointing a new judge to its High Court (equivalent of the U.S. Supreme Court), an Australian law professor, Ross Buckley, contended that
the gender of our judges matters.… A more representative judiciary promotes the public's confidence in it, which in turn strengthens the rule of law. Women bring a different perspective to the bench borne of their different life experience.
He added that, if a female judge was appointed, Australians could be glad that "our highest court will better reflect the composition of our society."
Indeed, such are the views of Sonia Sotomayor herself:
We [Latinos] 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.
It may be news to Ms. Gandy and Mr. Buckley and Judge Sotomoyor, but representation is not the function of a judge and diversity is not a necessary attribute of a court.
We do not elect judges. We appoint them. And we should appoint females and members of minorities because they will make good judges, not because they are women or members of minorities. A judge is there to apply the law equally, without regard to personal parti pris, something which a competent judge of any sex, age, religion or ethnicity can and should do.
A court is not a representative body, like a parliament. Indeed, even parliaments need not directly reflect diversity in society: most people do not cast a vote primarily on the basis of identity. A woman will not necessarily vote for a female politician, or a Chinese-American for a Chinese-American candidate. Electoral endorsement, not identity, is the criterion for being a democratic representative.
Accordingly, there is no composition of a court whose "narrowness" must be "broadened" -- and thereby have "public confidence" in it promoted -- by minority appointments.
Yet Judge Sotomayor not only believes that minorities must be 'represented,' but that it even brings judicial benefits: "a wise Latina woman," she says "would more often than not reach a better conclusion than a white male who hasn't lived that life."
While it must be joyous to be so sure of unprovable things, the life experience of a judge in and of itself contributes nothing by way of "different perspective" to judicial decisions. Only a different philosophical approach to jurisprudence can do that.
Sonia Sotomayor and Supreme Court Justice John Paul Stevens can be said to have similar judicial approaches. They do not remotely share a common background. On the other hand, Sonia Sotomayor and Supreme Court Justice Clarence Thomas both rose from impoverishment within minority communities. Both were largely raised by a single parent. They can be said to have similar backgrounds. They do not have remotely similar judicial approaches.
There is also no guarantee that leaving determination of issues of disadvantage and discrimination to the tender philosophical sympathies of judges selected for "empathy" will reduce discrimination because of a "different perspective." It may even produce it.
Judge Sotomayor herself has proved this. Last year, three New Haven firefighters were denied promotion on account of their ethnicity, despite meeting performance test expectations. This discriminatory decision by the local fire fighting authority was upheld by a panel of judges that included Sonia Sotomayor.
Since the performance test had not on this occasion produced promotions for African-Americans, other firefighters, including a dyslexic who had studied with special vigor to qualify, were denied their due. Their case is currently under appeal. This is where 'representation' in non-elective contexts takes us.
Sotomayor is an experienced jurist. That would be the reason for the Senate to confirm her, if it confirms her -- not because she comes from a minority. "Representation" has as little place as a criterion for the selection of judges as it does for firefighters.
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