Thursday, May 28, 2009

Sotomayor: no racist, no writer

Two notes on the statement by Sonia Sotomayor that has led to gleeful charges by such champions of equality as Rush Limbaugh and Newt Gingrich that she is a "racist":
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.
First: in context, the statement seems to refer specifically to cases of race and sex discrimination. The subtopic was set in place one paragraph above the one in which the controversial sentence appears:
In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males.
Immediately following the "wise Latina" sentence comes this:
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.
More broadly, Judge Sotomayer acknowledged that no given individual on the bench should be taken as a representative of an ethnicity, while highlighting research indicating that women and minorities on the bench are more likely to be sympathetic to issues of discrimination. Unexceptionable.

The second point, though, is that Sotomayer is a really bad writer, and it's the sheer opacity of her prose that got her into the trouble noted above. Her broad point in the speech in which she made that statement, delivered at UC Berkeley School of Law in 2001, seems to be that putting more women and minorities on federal benches will make the judiciary as a whole more empathic. Here's how she put it:
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.
There's a thought there, and not a particularly complex one. How long did it take you to extract it? Here's more:
This weekend's conference, illustrated by its name, is bound to examine issues that I hope will identify the efforts and solutions that will assist our communities. The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss with you what it all will mean to have more women and people of color on the bench. The statistics I have been talking about provide a base from which to discuss a question which one of my former colleagues on the Southern District bench, Judge Miriam Cederbaum, raised when speaking about women on the federal bench. Her question was: What do the history and statistics mean? In her speech, Judge Cederbaum expressed her belief that the number of women and by direct inference people of color on the bench, was still statistically insignificant and that therefore we could not draw valid scientific conclusions from the acts of so few people over such a short period of time. Yet, we do have women and people of color in more significant numbers on the bench and no one can or should ignore pondering what that will mean or not mean in the development of the law.
What does Judge Sotomayor mean by the question, "What do the history and statistics mean"? Only gradually does it become clear that she's asking whether women and minority judges decide cases in ways measurably different from white men.

On a macro level, the speech is coherent. Sotomayor suggests that as a society we can't simultaneously value diversity and pretend to be completely color blind; specifically we should openly acknowledge the value of diversity on the bench. Similarly, we should recognize that while judges must strive for objectivity, they are shaped by their cultural inheritance -- and in aggregate, women and minority judges will be more sympathetic to the disadvantaged.

But the semantic haze does not allow for much depth of treatment. Sotomayor acknowledges core paradoxes and tensions, but does not get very far in exploring how to balance them. Here's what she has to say, for example, about judicial objectivity:

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. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought....

That same point can be made with respect to people of color. 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.
Objectivity is a worthy aspiration, but"there is no objective stance." Okay -- no one's ever solved this paradox. But it's possible to cut deeper into the circumstances under which attempts to impassively follow the law might leave a judge high and dry. Take, for example, the line drawn by a certain freshman senator in 2006, explaining why he would not vote to confirm John Roberts:
It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an
impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the
world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of
women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
We can't all be Barack Obama. But that precision -- the ability to spell out the conditions under which the law will not provide clear guidance -- is a capability I would hope for in a Supreme Court justice.

11 comments:

  1. I am unsure that your analysis of Sotomayor's speech writing supports the contention that she is a poor legal writer within the confines of being a judge. Citing to an actual opinion she wrote would suffice.

    As an aside, the irony of your citing to Rush and then having the screen name of expostfactoid has turned my nipple purple (she was overturned 60% of the time by the SCOTUS, not 80% as Rush has so glibly distorted).

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  2. Anon, I did not say that Sotomayor is "a poor legal writer within the confines of being a judge." What's more, I'd agree that the quality of her opinions is more important than more free-form expressions of her thoughts. But the prose in opinions is supported by elaborate conventions, including substantial citations of prior opinions, and are largely drafted by clerks.
    One can probably be a great judge without being a particularly good writer.

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  3. So you cited specifically to Rush's belittling of Sotomayor's abilities as a legal writer, but not for that point? Why bother?

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  4. I'm not aware of Limbaugh's comments, though well after this post went up I read via Sullivan of nasty right-wing critiques of Sotomayor's writing. Just calling 'em the way I 'em. Sotomayor may be supremely qualified for the Supreme Court, but the clumsiness of her writing is relevant. As I indicated at the end of the post, I'd feel better about a nominee whose clarity of thought shone through her non-legal work. I'm prejudiced toward good writers.

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  5. Well with such a no nonsense approach, perhaps you can go ahead and read one of her opinions.

    I am also unconvinced that her speech was "clumsy," as you've charged. You do not write a speech, you speak it. Drawing comparisons between a small section of a full speech and her abilities as a writer are, well, foolish for that very reason.

    I do not doubt that she is no Scalia, but do you know how many Justices have written as well (and as obnoxiously) as him? Just one.

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  6. The speech is revealing, for reasons already cited. The post was not about a "small section" of the speech -- it treated the whole, obviously focusing on passages that demonstrate the flaws in her writing. Yes, an intelligent assessment of some focused cross-section of Sotomayor's body of legal writing would be a more valuable exercise, but that doesn't negate the value of looking at what the speech tells us about the depth and clarity of her thinking on on a key meta-legal issue -- the degree to which our background shapes our judgment.

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  7. I do not think you understand the crowd she is addressing, or the legal reasoning policies she is discussing. She is talking to soon to be lawyer, not common place bloggers.

    And again, since you chose to ignore the last time I said it, this is a speech, written to be heard, not to be read. It is a minute distinction a trial lawyer understands (ie Sotomayor), but a regular person would not.

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  8. poor syntax is not easier to follow verbally than in writing.

    Whoever the audience, Sotomayor simply did not cut that deeply into the ways in which personal experience should/should not or do/do not inform judicial decision-making.

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  9. Of course your argument incorrectly assumes that a commencement speech is a comprehensive thesis on legal reasoning. Graduation from law school, I assure you, is neither the time nor the place for such a thing. Neither would it be necessary here, as law students from a policy school such as Berkley have a thorough understanding of what she was talking about without deep analysis.

    I understand that as a layman you would probably like a dumbed down thorough analysis...but you were not the audience being addressed, so you get nothing, but a tsk for thinking a quasi-formal speech to law students equates to poor writing.

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  10. Now that is just ridiculous. Clarity is clarity, and this speech ain't got it. I don't care whether the audience is a kindergarten class, a lconference of legal scholars or the law school grads it was addressed to, it just doesn't say much or say it very well. Does that mean that Sotomayor mightn't be an excellent Supreme Court justice? No. It does indicate that, as she's admitted freely, writing does not come naturally to her, and that outside the strict formats of legal documents she doesn't do it very well.

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  11. You're right, you know about lawyers because you are one.

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