July 2009

Many have expressed regret about the fact that prospective Justice Sonia Sotomayor has supported the fiction that judging is or ever could be a neutral and fully objective process. I share their concern and offer a distinction that might be helpful as we attempt to address this question more honestly.

A judge's personal biography and status can affect decisionmaking in two ways: 1) it can sensitize her to familiar perspectives, and 2) it can distance her from perspectives that are unfamiliar. We should embrace the first effect and guard against the second, for, as James Boyd White said most eloquently, our goal in litigation should be to assure that decisionmakers consider all that can fairly be said on each side of a controversy.

Given the make up of our judiciary, it is clear that we should welcome the addition of "wise Latinas." To deny this is to overlook the component of wisdom.

We must never forget the words of the great African American Federal District Judge Constance Baker Motley in response to a motion that she recuse herself in a discrimination case involving, as I recall, a woman of color. They were to this effect: There is no judge in this courthouse who does not have a race and a gender.

As Senator Sheldon Whitehouse of Rhode Island astutely observed, if confirmed, Judge Sonia Sotomayor will not only be the first Latina on the Supreme Court, but will also be the sole member of that body who has served as a district court judge.

Justice O'Connor, the first woman to be appointed to the Court, similarly brought a somewhat different legal background to her task than her colleagues. She had previously been both a state legislator and a state court judge, and commentators have often suggested that her experience in those state capacities helped shape her views on federalism and her respect for state sovereignty.

What, then, might be the implications of a Supreme Court Justice with district court experience?

One answer might serve to explain the conciseness of the Ricci v. DeStefano summary order that has been the subject of so much controversy, and about which Ricci himself is slated to testify. In that summary order, the three-judge panel affirmed the rationale of what it called the "thorough, thoughtful, and well-reasoned opinion of the [district] court below." During her confirmation hearing, Judge Sotomayor has emphasized the length and comprehensiveness of that district court opinion, and she has expressed respect for the efforts of the trial court. Judge Sotomayor's experience on the district court may have contributed to a view that, although the determinations of law below are not entitled to the same degree of deference as those of fact, it was not necessary to supplement or supersede the otherwise sufficient reasoning of the district court judge in the Ricci case.

Just as those in favor of a rigorous conception of federalism place significance on local determinations, and members of the founding generation feared fact-finding in the Supreme Court because it might contravene the independence of regional juries, we might see considerable value in granting more weight to the decisions of district courts. It is, after all, the district court judge who assesses all the evidence in person, and who is best positioned to evaluate the entirety of the circumstances of the case. Confirming someone who can appreciate the vantage point of the district court judge would certainly add another welcome element of diversity to the Supreme Court.