Skepticlawyer

President Obama has appointed Sonia Sotomayor to the US Supreme Court to replace David Souter. Predictably enough, elements in the Republican Party have questioned her appointment. The criticisms are not of her gender and ethnicity per se, but of certain comments she made at a talk in 2001 about the gender and ethnicity of judges:

Newt Gingrich, the Republican former speaker of the House of Representatives, and Karl Rove, George Bush’s chief strategist, have called Ms Sotomayor “racist” and said she should withdraw as a nominee over comments she made in 2001.

In a talk at the University of California, she offered the view that a female Hispanic judge would better understand certain issues around race and gender than a white male.

“I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said.

“Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging.”

As discussed in my previous post on the lead-up to Ms Sotomayor’s appointment, difficulties arise when diversity becomes a specific criterion for appointment, because suddenly gender, ethnicity and sexuality of appointees become open to attack. On the other hand, I do think diversity in the ranks of the judiciary is a Good Thing because justice looks more impartial if there is a range of different people who do the judging, not just a particular cadre of individuals of a particular gender, ethnicity, religion or sexuality.

Despite my support of a diverse judiciary, I am really wary of claims that women, members of ethnic or religious minorities or non-heterosexual judges are necessarily better than others. In fact, sometimes I think there’s an assumption that just because a person is a member of a minority group this means that person is a better or more worthy person. Not so. It can give you insight in what it is like to be marginalised or disempowered, and make you want to strive for greater justice and equality in society, but this is not a fait accompli. Equally well, a person from a non-minority group may equally well wish to strive for greater justice and equality in society, just because that person is fundamentally decent.

Some of my worst experiences of discrimination in the workplace on the basis of my gender or my choices with respect to childbearing have been at the hands of other women. I had foolishly thought these women would be on my side because they had children and knew what it was like to juggle everything. No. Their experience of struggle and adversity had just made them harder and more unforgiving of others: I managed to do it without help, why should this woman be any different?

As I’ve explained before in relation to arguments that women make better judges, I do think women generally think differently to men. Of course one’s religion, ethnicity, sexuality, upbringing and class all contribute to one’s view of the world and the way in which one judges others. This doesn’t mean a person’s judgment is necessarily better, it’s just different. But that different perspective more truly reflects the society we have (which is made up of an enormous variety of people).

So Justice Sotomayor is not necessarily better than a white man at being a judge. She’s just different. But that difference is a good thing in itself because there is more chance of a fair outcome if diverse opinions are sought from a range of society.