The Monitor's View

Does Sotomayor practice identity justice?

The Senate must weigh her comments about judicial impartiality

By

A court judge who ends a Major League Baseball players' strike would likely win a popularity vote – if there were one – to be a Supreme Court justice.

But Judge Sonia Sotomayor, who is President Obama's pick for the high court, probably knew better when she made that strike-ending ruling in 1995. She learned early on – perhaps starting with her childhood watching of the "Perry Mason" TV series – that a judge must be impartial before the facts and the Constitution.

It is the most important quality that Ms. Sotomayor would need to bring to the Supreme Court, if the Senate approves her.

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To be sure, she would also bring a wealth of life and professional experiences to the nine-member bench – as someone who boot-strapped herself up from a Bronx housing project to earn Ivy League degrees, served as a criminal prosecutor and as a trial judge, and who now has a record in judicial opinion-writing as an appellate judge.

And as a symbol of success for Hispanics and women, Sotomayor would help inspire other women and minorities to reach for high office.

But does she have the temperament for judicial impartiality – as symbolized by the blindfold on the statue of Lady Justice holding a balance?

She was nominated for her first job on the federal bench by a Republican president (George H.W. Bush) and later as an appellate judge by a Democratic president (Bill Clinton). Her decisions on the New York circuit court reveal an ability to balance the interests of business and the individual. She says she always tries to question her own "opinions, sympathies, and prejudices."

And when considering a case, she is well known to explore all facets of the law and to listen to all litigants and other judges.

But while she says that she believes in the principles of the Constitution, she also argues that impartiality is difficult for a judge, calling it a mere "aspiration because it denies the fact that we are by our experiences making different choices than others."

She claims women and nonwhite Americans will make different rulings – something denied by the first woman who served on the high court, Sandra Day O'Connor.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life," Sotomayor stated in a 2001 lecture.

Certainly a person's experience can help improve her or his intellectual capacity to apply the Constitution in a case. Judges must know the real-world consequences of their rulings. If they can't, they shouldn't be a judge.

But to say that a judge's race or ethnicity would yield a ruling with better consequences than simply upholding a constitutional principle is to deny the very reason for a constitution – as a bulwark for society against the whims of the elected branches and the political passions of an era.

Sotomayor has also said that an appeals court judge enjoys the ability to set national policy and that, for a judge, "there is no objective stance but only a series of perspectives."

She's right in implying that judicial rulings can alter the course of history – such as the 1954 Brown v. Board of Education decision on segregation. But judges who seek to change society by bringing their own "policy" proscriptions to the bench would do better running for elective office.

And to see law as relative to person and not an absolute in itself is to claim society should not be governed by universal, timeless values.

Sotomayor needs to explain her comments in her Senate confirmation hearings.

Identity politics may be a necessary part of US politics.

But there is no such thing as identity justice.

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