Diversity matters in the Supreme Court

25 05 2009

There has been much speculation and writing about who Obama will appoint to the Supreme Court, and while there is no set day that the decision will be announced it may be as soon as tomorrow or some other time this week. In a recent C-SPAN interview, reporters asked Obama how he would respond to his wife, daughters and mother-in-law if he didn’t choose a woman. He said:

Actually I can’t tell you the number of women, including Michelle, who say, “Choose the person you think is going to be best.” I think in any given pick, my job is to just find somebody who I think is going to make a difference on the courts and look after the interest of the American people. And so, I don’t feel weighed down by having to choose a Supreme Court justice based on demographics. I certainly think that ultimately we want a Supreme Court that is reflective of the incredible variety of the American people.

As Dr. Violet Socks writes:

This is standard anti-feminist rhetoric. Talk about choosing “the best person” — as if in a nation of 300 million that would somehow preclude finding a woman to fill the job. Use non-feminist women as human shields to defend your stance. (”My wife says it’s okay!”)

8 out of the 9 Supreme Court Justices are males and it doesn’t take a genius to realize that this is not representative of the American population at all. The Supreme Court, like many other government institutions, is a boys club and this affects the decisions made that affect this country as a whole.

In the Judge Mario G. Olmos Memorial Lecture in 2002, appeals court judge Sonia Sotomayor said:

No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

Sotomayor is right that impartiality is an aspiration. Every body experiences the world different based on his/her social location: his/her gender identity, sexual orientation, race, class, physical ability, geographic location, educational background, etc. And the way we experience our lives colors the way we perceive and navigate the world. It clearly influences our perceptions of right and wrong. Is it a coincidence that Ruth Bader-Ginsburg, the only woman on the bench, was one of the two dissenting voices for the AT&T case?

She is also right that no one female or person of color can or will speak for their entire group, and being a woman does not automatically make you a feminist (case in point: Sarah Palin), just like how being a person of color does not automatically make you anti-racist. However, having a woman or a person of color nominated for Supreme Court Justice will make a difference:

Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

Well said. It will be more meaningful for women or for people of color to have more powerful female or people of color role models. It may seem that one person may not be able to make such a profound difference, but collectively we all can. And even if one diverse voice is all we have to start with, we can build from there.


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