We’ve been listening to a lot of discussion of whether it is appropriate for a candidate for the Supreme Court to benefit from her experience as a Puerto Rican-American woman. Some claim, as Justice O’Connor once did, that a good woman judge and a good male judge should be judicially identical, and decide the same way. Or as one critic recently said, “Giving vent to the bias of one’s own experiences would lead to a wrong result, not a proper one”.
Their notion appears to be that law is like mathematics. We ought to be able to teach it to a computer. Then law would be something other than human. It would be precise and invariant. Our experience couldn’t matter. Whatever does matter could be specified and loaded onto the legal hard drive. It would be the same for everyone.
When we choose juries, we are instructed that the process of selecting jurors needs to be from a pool that fairly represents the community. Studies of juries have demonstrated that larger juries are more representative of the community, less likely to share common stereotypes, and more likely to bring diverse experience to bear than smaller juries. They’re also more likely to be accurate. But nine-member courts can’t do that – judges have to be cookie-cutters.
When we are on jury duty, the courts tell us that we are entitled to measure the testimony according to ordinary experience, ordinary understanding of motives, relationships and behavior, for example. Jurors can be people with backgrounds that help them understand reality. But judges can’t. They can only be automatons.
What’s wrong with the idea of judges without individuality is the idea that facts don’t matter, and therefore our experience doesn‘t matter, in the way we understand the world. Because if facts do matter, if our experience with the world legitimately helps us understand it, then it is impossible for anyone, male, female, black, white, Hispanic or Puerto Rican, to know everything. And the different perspectives of judges and justices from different backgrounds are crucial and should be valued by all.
Law is constantly about judgment. What witnesses should be believed? What does their behavior reveal? These are factual questions in which we all, necessarily, judge people by our experience. We misunderstand the honesty and the meanings of immigrants or people who work with their hands and their backs if we read them by the ways things might be expressed by stockbrokers, high priced attorneys and corporate executives.
Or to take another example, how many of us have experienced discrimination directed at Puerto Ricans? It is not obvious to me that people who haven’t experienced discrimination will recognize it when it happens. Discrimination doesn’t come with a label. It gets packaged in pious phrases or hidden in stereotypes that lead people to think the judgments involved just reflect talent. It was only at the very end of Rehnquist’s life when the Rehnquist Court managed, though still sharply divided, to decide that there was important evidence of racial discrimination that courts below should have credited. Through nearly twenty years the Rehnquist Court had managed never before to identify discrimination even where a workplace was one hundred percent segregated. Judges have their prejudices just like the rest of us.
When Thurgood Marshall died, Justice O’Connor told us that she missed his ability to shine a light on experiences that were opaque to the rest of the Court precisely because his experiences had been different. She had learned that different perspectives matter. They are supposed to matter. That’s why the Court has nine justices. And that’s why it matters, it legitimately matters, that Judge Sotomayor is Hispanic. That’s why it mattered when President Wilson nominated Louis Brandeis as the Court’s first Jewish Justice. No one part of the country, no one strain of ancestry, no one type of justice can speak for the country. It takes a Court.
– Broadcast on WAMC Northeast Report, June 9, 2009