Why I Oppose Judge Sotomayor

Why I Oppose Judge Sotomayor
by Frank DeRose
Private Papers

Introduction

I oppose the nomination of Judge Sotomayor to the Supreme Court of the United States. My opposition to Judge Sotomayor is not based on her ethnicity or gender, but on her espousal of a radical, relativist, postmodernist judicial theory, which has no place on the Supreme Court.

Judge Sotomayor laid out this judicial theory in a speech in Berkeley in 2001. It may be summed up as follows:
People have different experiences that arise from their different biological natures and different cultural environments. These different experiences cause people to develop different perspectives on the world, different opinions, sympathies, and prejudices. We may refer to the sum total of an individual’s different personal experiences, perspectives, sympathies, and prejudices as the person's identity. A judge's identity makes a difference in and influences the way in which the judge judges. It is impossible for a judge to transcend his/her identity and achieve objectivity, impartiality, and neutrality. Judges, inasmuch as they are subject to and limited by the dictates of their identities, are incapable of using legal reasoning to extract a single, objective, determinable meaning from a legal text. Rather, every act of judging is an exercise of power, in which the judge imposes on the text an interpretation he or she chooses based on his/her own personal perspectives, sympathies, and prejudices. Judges themselves decide when it is appropriate for their judicial decisions to be informed by their own personal perspectives, sympathies, and prejudices. Since judges are incapable of objectivity, there must be quotas of various identity groups on the bench so that, when the members of these different groups advance their own personal prejudices, their various biases will cancel each other out.

It is the purpose of this brief essay to examine in several parts the text of Judge Sotomayor's speech to demonstrate that the summary given above is an accurate representation of the judicial theory she lays out in her speech. As I proceed, I will also demonstrate the inconsistencies in and the self-refuting nature of this theory and comment on the sad vision of society it presents.

Part I
Identity: its sources and influence

A substantial portion of Judge Sotomayor's speech is devoted to establishing the exact nature and sources of her Latina identity. According to Judge Sotomayor, her Latina identity is shaped by “shared experiences and traditions,” “cultural differences,” “cultural experiences,” “gender differences,” “physiological differences,” or “basic differences in logic and reasoning.” When Judge Sotomayor refers to "gender" or “physiological” or “basic” differences, I assume she means differences between men and women or between different racial groups (as perceived by her) that are determined by genetic and biological makeup.

Whatever its sources, the Latina identity causes the Latina judge to have certain “perspectives,” “sympathies,” and “prejudices” that make a difference in the way she judges:

I intend tonight … to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.

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.

[O]ur gender and national origins may and will make a difference in our judging.

Personal experiences affect the facts that judges choose to see.

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.

Part II
Objectivity, choosing in a judicial context, and the Supreme Court as “naked power organ”

If Judge Sotomayor’s philosophy consisted of the simple statement that we all are to some extent influenced by our personal experiences, we might consider that philosophy relatively harmless. For example, Judge Samuel Alito made similar statements during his confirmation hearings. But, Judge Sotomayor’s philosophy goes much farther than that. For her, objectivity itself is not possible:

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 [sic] 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.

I will go through the various statements and phrases in this passage one by one.

There is no objective stance but only a series of perspectives — no neutrality ... The aspiration to impartiality is just that — it's an aspiration.

These statements speak for themselves. Judge Sotomayor accepts the proposition that it is impossible for judges to be neutral, impartial, and objective. They may aspire to be so, but in the end they will fail. Judge Sotomayor makes the same point elsewhere in her speech:

Judge Cedarbaum ... believes 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. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

Thus, in Judge Sotomayor’s opinion, it is in general not possible for judges to transcend their personal sympathies and prejudices and arrive at a judicial decision through the application of legal reasoning. Rather, judicial decisions are driven by judges’ personal perspectives, sympathies, and prejudices.

To judge is an exercise of power.

Judge Sotomayor is describing a situation in which a judge forces or imposes an interpretation onto a set of facts or a legal text. During his confirmation hearings, John Roberts compared himself to an umpire: "Judges are like umpires. Umpires don't make the rules; they apply them." Judge Sotomayor's conception of an umpire would seem to be altogether different. In her view, an umpire’s judgment would be what John Austin calls a performative: by calling a pitch a 'ball,' the umpire is performing the act of making it a ‘ball’ instead of a ‘strike.’ In Judge Roberts' understanding, a judge simply extracts from a legal text a meaning that has an existence independent of him or her and then applies that meaning. In Judge Sotomayor's understanding, that meaning does not exist until the judge, in an "exercise of power," creates it.

Judge Bork made the meaning of the phrase "to judge is an exercise in power" crystal clear when he wrote:

[L]egal reasoning of the sort that served us for centuries is now utterly outmoded, and a verbal formulation can always be devised to reach the correct political result. … If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. … It is here that the concept of neutral principles, which Wechsler said were essential if the Supreme Court were not to be a naked power organ, comes into play. (The Tempting of America, p. 135, p. 145)

There is … no escape from choice in judging. … [W]e are by our experiences making different choices than others.

Judge Sotomayor uses the words "choice" or "choose" two other times in her speech:

Personal experiences affect the facts that judges choose to see.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.

By using the words “choice” and “choose” Judge Sotomayor is trying to convey the following complex of ideas: If there is an objective and determinable meaning that can be extracted from a legal text by all judges alike through the application of legal reasoning, then, judges are obliged to accept and be bound by this single meaning of the text. If, on the other hand, judges are trapped inside their identities and are incapable of transcending their own personal perspectives, sympathies, and prejudices, then, it will not be possible for them to extract a single objective meaning from the text. Instead, each judge’s understanding of the text will be determined by his/her identity. In such a case, Judge Sotomayor would maintain that the judge is “choosing a particular interpretation of the text based on his/her own personal perspectives, sympathies, and prejudices.”

If we now return to the statement: "there is no objective stance, but only a series of perspectives — no neutrality, no escape from choice in judging," we can see that it is only by assuming that Judge Sotomayor is using the word "choice" in the proposed sense that this statement becomes a consistent whole: if there is no single truth, but only a series of perspectives, then, one has no option but to choose between the multiple perspectives. Likewise, our proposed interpretation of the words “choice” and “choose” sheds light on the phrase “to judge is an exercise of power:” if there is no such thing as an objective, determinable meaning of a legal text, but a judge is free to choose whichever interpretation his personal perspectives, sympathies, and prejudices may dictate, any interpretation the judge assigns to the text is a matter of choice, which by definition is an exercise of arbitrary power.

The reader may already have recognized the inconsistency of Judge Sotomayor’s use of the words “choice” and “choose” to describe the actions of an individual who is a prisoner of his or her own identity. If a judge’s interpretation of a legal text is determined by his/her personal perspectives, sympathies, and prejudices, then, it is wholly inappropriate to use the word “choice” to describe the judge’s adoption of that interpretation. Rather, the judge is merely a subject of the dictates of his own identity, incapable of transcending and acting independently of his own perspectives, sympathies, and prejudices. If, on the other hand, Judge Sotomayor is using the word "choice" in its proper sense of "free and unconstrained selection," then this would presuppose that judges are indeed capable of transcending their identities and selecting any option, even one that stands in opposition to their own personal prejudices. Such a situation would, then, contra Sotomayor, make objectivity theoretically possible.

In fact, the word "choice," with its connotations of freedom, should not be used to describe the activity of a judge at all. The only consistent theory is one that assumes there is a single, objective, determinable meaning in the legal text, that all judges are capable of extracting this single meaning through a process of legal reasoning, and that all judges have no choice but to be bound by this meaning. This theory, like Judge Sotomayor’s theory that judicial decisions are determined by our identities, does not allow judges any freedom to exercise choice. But, that is as it should be. The postmodernist idea that judges should exercise free choice is to be rejected out of hand. Judge Bork takes up the issue of choice in The Tempting of America. He starts by noting Dean Paul Brest’s objections to originalist approaches:

The fact is that all adjudication requires making choices among the levels of generality on which to articulate principles, and all such choices are inherently non-neutral. …

To this Judge Bork replies:

The role of a judge committed to the philosophy of original understanding is not to “choose a level of abstraction.” Rather, it is to find the meaning of a text — a process which includes finding its degree of generality, which is a part of its meaning — and to apply that text to a particular situation. (The Tempting of America pp. 148-9)

In the end, then, it is not a question of whether the judge should be able to choose or not. He should not. Rather it is a question of what the judge is to be ruled by, his own personal perspectives, sympathies, and prejudices, or the meaning to be found in the words of the Constitution.

I might add that, if it were impossible to extract a single, unambiguous meaning from a legal text, it would then be impossible for there to be a government with separate legislative, executive, and judicial branches or for a government to last over time. For, how would it be possible for the members of one branch or of one time to understand what the members of the other branch or another time were even talking about? In fact, how can one human being communicate with another if the words emitted by the one with one meaning are understood by the other with a different meaning determined by the latter’s personal perspectives, sympathies, and prejudices? These are the kinds of absurdities to which postmodernist legal theory leads.

Part III
Judicial decisions based on personal prejudice

Two passages in Judge Sotomayor’s speech deal with the allowable uses of personal prejudice:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes 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. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.

I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

The second passage can mean nothing other than that Judge Sotomayor thinks there will be times when it is appropriate for her to make judicial decisions based on the personal prejudices that result from her own experience and heritage.

I don’t know if it has ever been the case that a Supreme Court nominee has taken the position that he or she will sometimes judge based on personal prejudice. These passages become all the more remarkable when it is observed that in another passage in her speech Judge Sotomayor seemingly takes notice of and finds fault with the prejudices and limitations of white male judges:

I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. … However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other[s] simply do not care. … Personal experiences affect the facts that judges choose to see.

So, for Judge Sotomayor, the fact that white male judges are incapable of transcending their personal sympathies and prejudices and are limited in their ability to understand the experiences of others is a deficiency, but for women and minority judges to judge in accordance with the urgings of prejudice is to perform a service to the law and to society.

Perhaps we may understand Judge Sotomayor’s judicial philosophy in this area as follows: It is simply not possible for judges, as Judge Sotomayor’s colleague Judge Cederbaum would have it, to "transcend their personal sympathies and prejudices and achieve a greater degree of fairness and integrity based on the reason of law:" therefore, given the fact that white male judges, on the one hand, are incapable of transcending their own personal prejudices, there will be times when Judge Sotomayor may decide that it is “appropriate” for her, on the other hand, to allow her own Latina perspectives and prejudices to come into play when judging. In fact, not to do so would be a “disservice to society.”

Elsewhere in her speech, Judge Sotomayor notes:

[According to] every task force study of gender and race bias in the courts ... a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom.

Judge Sotomayor's solution to this problem would seem to be that women and minority judges should seek to cancel out the bias of white males by allowing their own biases, in the form of their own personal sympathies, perspectives, and prejudices, to influence and inform their own judgments on the bench.

Part IV
Quotas for women and minority judges

For the kind of "canceling out" view of justice mentioned in Part III to work, there must be adequate numbers of women and minority judges on the bench. Judge Sotomayor devotes a long section of her speech to tallying up the percentages of judges that are female, minority, or both. (The interested reader may examine these passages in detail in the speech itself.) Judge Sotomayor finds these percentages distressingly low ("grossly below our proportion of the population") and is indignant that this state of affairs persists to this day ("much still remains to happen").

In Judge Sotomayor's opinion, then, the quality of the federal judiciary is simply a function of the degree to which the percentages of women and/or minority judges on the bench correspond to their percentages in the general population. If the percentages of these groups on the bench are too low, then the makeup of the judiciary must be changed along gender and color lines. Just add a dash of women or a dollop of people of color. Put differently, there should be quotas for female and minority judges. And these quotas should match the percentages of women and minorities in the general population.

Apparently, no further qualifications for judges other than gender and color are much worth considering. The simple fact that the additional judges are women or minorities will be sufficient to guarantee an improvement in the quality of opinions handed down. For, as Judge Sotomayor notes:

The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.

Part V
The wise Latina and the white male
Or: the self-refuting nature of postmodernist legal theory

The one passage of Judge Sotomayor’s speech that has received more attention in the general media than any other is the following one:

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am … not so sure that I agree with the statement. … 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.

As we have seen, Judge Sotomayor believes that the quality of judging will be improved by the mere addition of women and minority judges to the bench, so it is not surprising that she would think that a wise Latina woman with the richness of her experiences would make an excellent judge. What is puzzling about her statement, however, is why she would think that a Latina identity would reach better conclusions when judging than would a white male identity. Does she not realize that every white male has a family story to tell similar to hers, just as personal, just as rich? Why should the experiences of these white males and the perspectives and prejudices they develop from these experiences be considered less relevant than hers or less capable of delivering their own unique insights? Just ask Frank Ricci, the dyslexic fireman from New Haven, whether his life experiences have given him a special insight into how a judicial ruling can impact the life of an individual.

On a more general plane, as we saw in Part II, Judge Sotomayor accepts the proposition that there is no objective stance, only a series of perspectives, only personal prejudice; but, if this is the case, then, on what basis can Judge Sotomayor assert that her vision of the world is the correct one? By her own argument, her vision has no claim to objectivity, but is merely another perspective, no more valid than the next, and we are free to reject it. In the end, then, Judge Sotomayor's judicial philosophy is self-refuting.

Part VI
The sad and tragic vision of relative morality

Judge Sotomayor labels her own philosophy as dangerous relative morality. Nevertheless, she seems fatalistically to accept it:

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.

What a sad and tragic vision of society Judge Sotomayor’s judicial philosophy presents! In it, humans do not have any value as individuals, but only as members of one particular identity group or another. It is in this sense that Judge Sotomayor can speak of Justice Clarence Thomas' thought as "African-American thought," instead of as the thought of an African-American, or simply as thought per se. In such a world, people are trapped and isolated inside their personal biases and their decisions are dictated by their own personal prejudices. There is no objective truth and there can be no genuine communication since words emitted by one person with one meaning are understood by another person with a different meaning determined by the latter’s different identity. There is no law independent of biases, but merely a butting of the forces of personal prejudice up against one another.

In Feminist Legal Theory, Nancy Levit and Robert Verchick give the following description of postmodernism:

As the name implies, postmodernism emerged as a response to modernism, an intellectual movement that rejected the formal structure of Victorian art (narrative in literature, realism in painting) … Postmodernists also reject traditional styles and forms, but go one further by rejecting the very notion of objective knowledge and experience. Postmodernists challenge the very possibility of truth and objectivity. In the postmodern world, knowledge can never be certain or empirically established. … This is the postmodern thesis: that when you get down to it, there is no such thing as justice, beauty, and truth — only power and the quest to maintain it. (Feminist Legal Theory, pp. 36-37)

Levit and Verchick’s statement that postmodernists believe that there is no such thing as justice, beauty, and truth is echoed by Judge Sotomayor:

[A]s Professor Martha Minnow has noted, there can never be a universal definition of wise.

Judge Bork describes post-modernism as follows:

This development can be seen in any number of academic, previously intellectual fields. Sometimes called post-modernism or post-structuralism, the denial of truth is, as Gertrude Himmelfarb says, "best known as a school of literary theory. But it is becoming increasingly prominent in such other disciplines as history, philosophy, anthropology, law, and theology..." It is also becoming increasingly difficult to call some of those subjects "disciplines." In every case — the attack on reason, on the concept of truth, and on the idea that there is an objective reality to which we must attempt to make our words and theories correspond — the impetus behind such assaults comes from the political left. … Nonsense these attacks may be, but, as the history of our century teaches, there is no guarantee that nonsense will not prevail, with dire results. In law, philosophy, literary studies, and history, among other subjects, we are raising generations of students who are taught by the "cutting edge" professors that traditional respect for logic, evidence, intellectual honesty, and the other requirements of discipline are not merely passé, but totalitarian and repressive, sustaining existing social, political, and economic arrangements to the benefit of white, heterosexual males. To change society in radical directions, it is said, it is necessary to be rid of the old apparatus. (Slouching towards Gomorrah, pp. 268-9)

Part VII
Conclusion

As I stated in the introduction to this essay, I oppose the nomination of Judge Sotomayor to the Supreme Court of the United States. My opposition is not based on Judge Sotomayor’s ethnicity or gender, but on her espousal of a radical, relativist, postmodernist judicial theory. This theory presents a sad and tragic vision of life. This theory is also driven by logical inconsistencies and in the end self-refuting; the fact that a judge could accept a theory with such serious logical flaws raises genuine questions about the ability of candidate to engage in the kind of rigorous legal reasoning demanded by the Supreme Court. The Supreme Court is not the right place for a judge who holds such a sad and flawed judicial philosophy. I encourage the members of the Senate Judiciary Committee, therefore, and all members of the Senate in general not to confirm Judge Sotomayor’s nomination.

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Frank DeRose lives in the Silicon Valley and works as a financial analyst, after studying Classics at UC Santa Cruz and UC Berkeley.