Judge Sotomayer, President Obama’s nominee to the Supreme Court, has been widely quoted as saying that Latino women would make better decisions than white men. Her statements in this area have raised a storm of controversy, with some defending and others calling for apologies.
In the final analysis, Americans are free to think, and speak, whatever they believe. Justice Sotomayer does not lose any of her personal rights in this area as a result of her nomination. The issue is not that she has personal opinions – everyone does. The issue is how her personal opinions will affect20her decisions as a judge.
To answer that, we first need to have a better understanding of exactly what those opinions are.
We know that the Judge believes that ethnicity and gender affect one’s ability to make sound decisions. We don’t know how, exactly, each ethnicity/gender combination fits into her hierarchy of ability. She has, to this point, only explained the relationship between two such groups.
The media frenzy does not help us to completely understand her parameters for making judgments about the relative intelligence or worth of the various ethnic and gender groups in America. Well-developed questioning will.
So in her confirmation hearings, Judge Sotomayer’s belief that some groups of people are more able than others is the "given" of the discussion. The goal of the hearings should be to help us understand that belief clearly and completely before we entrust her with a seat on the U.S. Supreme Court.
For example, does the Judge believe that Latino women and white women are equally able to make good decisions? What about Latino women and Latino men? Or white men and white women? Or white women and Latino men? In other words, does she believe that women are more able than men, or that Latinos are more able than whites? Or both?
She did not mention other races or ethnic groups. How do they fit into her hierarchy of ability? Where do African American women, or men, fit in relationship to Latino or white men and women? Or Asian men and women? Does the Judge believe that those of Irish, or Polish, or Russian, or native American descent have differing levels of ability? How large is the difference? Does it always apply, or can a person in one of the "lesser ability" groups rise above their presumed station to make decisions equal to someone in a more able group?
Will this hierarchy affect Judge Sotomayer’s interaction with other judges, or attorneys, or plaintiffs, or defendants? How will that difference occur, and to what extent will it affect her decisions? If Judge Sotomayer perceives, for example, a white male attorney as less able than a female Latino attorney by virtue of his ethnicity and gender, will his arguments before her be given the same level of consideration
as those of his opponent? Or will the Judge’s hierarchal screen of ethnicity/gender differences affect the way she receives, and evaluates, the i nformation?
The saying, "Justice is blind," is more than an old adage. It means that the provisions of law do not change with the background of the person. It means that on the scales of justice, each person is judged as an individual – no matter what "group" he might belong to.
Judge Sotomayer has told us that, for her, the group matters. She has, in effect, removed the blindfold from Lady Justice.
In this case, sight is not better.