"Wise Latina" and the Rule of Man

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I'll have a lot more to say about Judge Sotomayor, but I am disappointed in her testimony about her "wise Latina" remark to the Senate today.

In a speech a few years ago (and on several other occasions) she built an argument, saying that she disagreed with Justice O'Connor's claim that in reaching decisions, a wise woman will reach the same conclusion as a wise man. Rather, she explicitly argued, a "wise Latina" will reach a better conclusion than white men.

She clearly meant what she said: it wasn't an offhanded comment, it was an explicit and intentional and reasoned and argued claim.

Her argument today, however, is that she was trying to agree with what she believed O'Connor intended, while disagreeing with O'Connor's words:

Justices on the Supreme Court come to different conclusions. [O'Connor's words] can't mean that one of them is unwise. ... So her literal words couldn't have meant what they said; she had to have meant that she was talking about the equal value of the capacity to be fair and impartial.

I think she is misrepresenting her own words ("better" vs. "equal value ..."); but -- in my opinion, worse -- she is getting O'Connor wrong. O'Connor did mean that they will come to the same conclusion, not that their different conclusions will have the same value. O'Connor believes that the law is not something to be viewed differently by people with different life experiences, but something that has, ideally, correct and incorrect interpretations. That we are under the Rule of Law, not the Rule of Man. As she wrote in the Chinese Journal of International Law (2003), "the Rule of Law requires that legal rules be publicly known, consistently enforced, and even-handedly applied."

And that's what's really troubling to me here: worse than saying that she will reach superior conclusions by her experiences, she is saying that different conclusions by wise people are of "equal value." (And it's especially irrational in light of the fact that she ties it to impartiality, a concept that denies that your experiences have a significant influence on your conclusions.)

Sotomayor said this claim to female and Latino audiences, saying she was "trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences always do. I don't think that there's a quarrel with that in our society."

I do deny that the legal system is enriched by having judges who will view the law through their own experiences, rather than by what the law says. I deny that rule of man is a good thing, that inconsistency is positive. I assert that rule of law is the path to justice and order and liberty.

I am not sure what to believe at this point: does she believe that her experiences make her a better judge (in certain cases, at least); or does she believe that her experiences simply make her a different judge and that application of the law is "enriched" by having judges who will apply that law differently based on their distinct lack of impartiality due to those experiences?

Frankly, her explanation today troubles me more than her initial statement. slashdot.org

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This page contains a single entry by pudge published on July 14, 2009 10:14 AM.

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