Key Excerpt: Kyl and Sotomayor on the Role of Gender in Judging
KYL: You said this morning that your -- the point of those speeches was to inspire young people. And I think there is some in your speeches that certainly is inspiring, and, in fact, it's more than that. I commend you on several of the things that you talked about, including your own background, as a way of inspiring young people, whether they're minority or not, and regardless of their gender. You said some very inspirational things to them.
And I take it that, therefore, in some sense, your speech was inspirational to them. But, in reading these speeches, it is inescapable that your purpose was to discuss a different issue, that it was to discuss -- in fact, let me put it in your words. You said, "I intend to talk to you about my--I--my Latina identity, where it came from, and the influence I perceive gender, race, and national original representation will have on the development of the law.
You said, "No one can or should ignore asking and pondering what it will mean, or not mean, in the development of the law." You talked to -- you cited some people who had a different point of view than yours, and then you came back to it and said, "Because I accept the proposition that, as Professor Resnick (ph) explains, 'To judge is an exercise of power,' and because as Professor Martha Minow of Harvard Law School explains, 'There is no objective stance, but only a series of perspectives. No neutrality, no escape from choice in judging,'" you said. "I further accept that our experiences as women and people of color will in some way affect our decisions."
So, that's why some of us are concerned, first with the president's elucidation of his point of view here about judging, and then these speeches, several of them, including speeches that were included in Law Review articles that you edited, that all say the same thing. And it would certainly lead one to a conclusion that, a, you understand it will make a difference; and b, not only are you not saying anything negative about that, but you seem to embrace the difference in -- in concluding that you'll make better decisions.
That's the basis of concern that a lot of people have. Please take the time you need to respond to my question.
SOTOMAYOR: Thank you. I have a record for 17 years. Decision after decision, decision after decision. It is very clear that I don't base my judgments on my personal experiences or -- or my feelings or my biases. All of my decisions show my respect for the rule of law, the fact that regardless about if I identify a feeling about a case, which was part of what that speech did talk about, there are situations where one has reactions to speeches -- to activities.
It's not surprising that, in some cases, the loss of a victim is very tragic. A judge feels with those situations in acknowledging that there is a hardship to someone doesn't mean that the law commands the result. I have any number of cases where I have acknowledged the particular difficulty to a party or disapproval of a party's actions and said, "No, but the law requires this."
SOTOMAYOR: So, my views, I think, are demonstrated by what I do as a judge. I'm grateful that you took notice that much of my speech, if not all of it, was intended to inspire. And my whole message to those students, and that's the very end of what I said to them, was: I hope I see you in the courtroom somebody. I don't know if I said it in that speech, but I often end my speeches with saying, "And I hope someday you're sitting on the bench with me."
And so, the intent of the speech, it's structure, was to inspire them to believe, as I do, as I think everyone does, that life experiences enrich the legal system....
KYL: Let me just ask you one last question here. I mean, can you -- have you ever seen a case where, to use your example, the wise Latina made a better decisions than the non-Latina judges?
SOTOMAYOR: No. What I've seen. As you know, my speech was intending to inspire the students to understand the richness that their backgrounds could bring to the judicial process in the same way that everybody else's background does the same.
I think that's what Justice Alito was referring to when he was asked questions by this committee and he said, you know, when I decide a case, I think about my Italian ancestors and their experiences coming to this country. I don't think anybody thought that he was saying that that commanded the result in the case.
These were students and lawyers who I don't think would have been misled, either by Justice O'Connor's statement, or mine, in thinking that we actually intended to say that we could really make wiser and fairer decisions.
I think what they could think, and would think, is that I was talking about the value that life experiences have, in the words I used, to the process of judging. And that is the context in which I understood the speech to be doing.
The words I chose, taking the rhetorical flourish, it was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concern.
But I have repeated -- more than once -- and I will repeat throughout, if you look at my history on the bench, you will know that I do not believe that any ethnic, gender or race group has an advantage in sound judging. You noted that my speech actually said that.
And I also believe that every person, regardless of their background and life experiences, can be good and wise judges.
July 14, 2009; 3:52 PM ET
Categories: Hearings , Supreme Court , Topics: Personal Comments & Experiences
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