The upcoming Senate Judiciary Committee hearings to confirm Sonia Sotomayor, President Obama's nominee for the United States Supreme Court, offer an opportunity for a public dialogue on issues related to race, gender, identity, and diversity. Issues related to diversity will enter the Senate's deliberations both with respect to Sotomayor's Puerto Rican heritage and to her opinions on affirmative action cases..
In this piece, I discuss Sotomayor's heritage and in particular her claim that she "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". Most find this claim provocative and some have employed it as evidence of her "reverse racist" preferences. The quote will almost certainly be a topic of discussion at the hearings.
My initial reaction to Sotomayor's richness of experience claim was to find it disarming, but I was reading the quote out of context. I found it disarming because it seemed so humble. Let's get real for a moment. This is someone nominated for the Supreme Court. She's a star. Over the course of her career she has made better decisions than most of her peers. Otherwise, she'd be adjudicating traffic violations, not getting a nod to join the Supremes.
Given her successes, does she chalk them up to a fortunate dip in the gene pool or to a strong work ethic? She is, after all, a person of tremendous abilities, and her work ethic is legendary. No. She doesn't say, "I'm smart. I worked hard." Instead, she chooses to play up the advantages of growing up as a poor Puerto Rican woman. Good for her, I thought. She's paying homage to her wise mother who lacked Ivy League credentials but who didn't lack the wisdom we often associate with such pedigrees.
Turns out that I was reading the quote out of context. Sotomayor made her claim in response to a statement by Sandra Day O'Conner regarding men and women judges. Seen in this light, Sotomayor's comment takes on a different hue and points to a deeper issue that merits attention by the Senate: the composition of the court. O' Conner said that when confronted with a case, a wise old man and a wise old woman would arrive at similar conclusions. Sotomayor's comment was voicing disagreement. She believes, as do almost all psychologists, that an individual's interpretations and judgments are influenced in subtle and not so subtle ways by his or her identity, that our brains are shaped by experience, education, and identity. We reason through a confluence of narrative and logic. Men and women, Puerto Ricans and Anglos, therefore may or may not come to identical conclusions.
This begs two questions. First, does this mean that she'll make biased decisions? No. Not at all. For someone who's been a judge for as long as Sotomayor, her identity probably plays a relatively small role in how she interprets a case. At times and in places, her identity may come into play enabling her to make a richer interpretation in some instances. Second, if judges come to different conclusions does that mean that there is no law? Also, no. Disagreement arises because the legal realm is complex. The law emerges from consensus opinion.
The question before the Senate is not whether Sotomayor always makes the correct decision. The question before them is how she'll contribute as a member of the court, as one of nine. Let's not forget the reason that we have nine judges. It's because any single judge is imperfect. He or she will make errors in judgment, lack proper perspective, or, at times, be biased in his or her interpretation. The nine members of the Supreme Court deliberate and make collective judgments using majority rule. The founders chose that structure not for efficiency reasons (one judge per case would be far more efficient) because they new knew that lawmaking requires multiple sets of eyes and ears. They sacrificed efficiency in favor of wiser decisions.
What the founders knew intuitively has been expanded upon and demonstrated using the technical sophistication of modern day social science. What that research shows is that in decision-making bodies that exhibit mutual respect and validate member's opinions (and by all accounts this would accurately describe the current Roberts court), diversity improves collective performance. Deeper understandings, better predictions, and more novel solutions come about through interactions between diverse, intelligent, committed people than come about when everyone looks the same.
In other words, a court of nine diverse people is wiser than a court of identical minds because members of a diverse court bring different ideas to bear and productively challenge one another's interpretations of the law. A court that contains Roberts, Stevens, Kennedy, and Sotomayor is better than one that contains people of identical backgrounds.
Back then to the question at hand: will Sotomayor improve the court? Her influence will not be limited to breaking four-four ties. It will be in evidence every time she asks a clarifying question, challenges someone else's interpretation of the law, or has her own interpretations challenged by others. Here too, her rich experiences will come into play.
Let me conclude with my own claim, one that is not provocative but based on theory and empirical evidence.
I would hope that a court that includes a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a court consisting of all white males who have lived more similar lives.