It is Judge Sotomayor—who candidly acknowledges that race and gender experiences may affect how a judge sees the facts of a case and who publicly describes the importance of guarding against one’s own prejudices—who will be painted as a biased judge. But Clarence Thomas—who disingenuously promised to “strip down like a runner” when judging and leave behind his former views as a partisan cabinet member in the Reagan administration, but whose decisions demonstrate a lock-step allegiance to those hard-right political views—is regarded as strict constructionist, not a partisan.
And Chief Justice John Roberts—who spun a charming fantasy about judges as impartial umpires calling balls and strikes—enjoys the reputation of a neutral, principled jurist, even though, his judicial decisions since confirmation how consistent outcomes in favor of prosecutors, the state and corporate defendants.
Judge Sotomayor will spend hours this week defending herself against charges of prejudice based on the statements she made in speeches she gave in which she talks about the effect of race and gender on judging. It’s legitimate to ask her to expound on these public statements, especially because some of them require clarification. Moreover, nominees are regularly asked to explain their speeches and writings. But for Sotomayor, it will be a thankless task. No matter what she says, it’s unlikely that she will convince those inclined to see her as a racial partisan. It’s much more comforting to accept the unreflective certainty of Chief Justice Roberts and Justice Thomas’ sports analogies about stripped-down runners and umpires, than the messy, complication of Judge Sotomayor’s candid admission that “I simply do not know exactly what [the] . . . difference will be in my judging, but I accept that there will be some based on my gender and my Latina heritage and those experiences my background has imposed to me.”
Judge Sotomayor should be applauded for her courageous and candid statements. More judges should openly talk about how their experiences affect their decision-making. The unspoken assumption has always been that white male judges are the ultimate judicial decision-makers, constitutionally hard-wired to divine the law and administer it impartially. But they, too, need to come clean about the personal and professional experiences that affect their approach to the law. A judge’s assumption about his impartiality is more dangerous than the imagined threat of Sotomayor’s Latina pride. In fact, the central theme of Sotomayor’s often-delivered “wise Latina” speech is that a judge must be conscious of how his or her background might effect their decision-making in order to, as Judge Sotomayor urges, engage in “constant and continuous vigilance in checking [one’s] assumptions, presumptions and perspectives.”
Maybe it’s instructive to just refer back to the statement of another judge at his confirmation hearing—a statement regarded as uncontroversial and even supportive of the nominee’s fitness for the high court. That nominee was Judge Samuel Alito, who said in 2006: “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender, and I do take that into account.”
Sherrilyn A. Ifill is a regular contributor to The Root.