A Supreme Court "Of the People, by the People, and for the People"

by Neena Chaudhry, Senior Counsel,
National Women’s Law Center

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

As we approach the Supreme Court confirmation hearings for Judge Sonia Sotomayor, much has been made of the fact that, if confirmed, she would be the first Latina on the Court and only the third woman. Many have praised her choice as one that will contribute to diversity on the Court, while others have condemned the notion that her ethnicity and gender would have any influence upon her work as a judge. This is certainly a topic that Senator Sessions has already signaled that Judge Sotomayor will be questioned about closely during the hearings.

Yet who among us can honestly say that our life experiences—including gender, ethnicity, where and how we grew up, and what jobs we have held—don’t influence the lens through which we see the world?  And more importantly, why would we expect, or even want, judges to be any different? Of course, we want judges to decide cases without any preconceived biases and to really listen to the facts and then make their decisions based on their interpretation of the law and precedent.  But if having been a young woman in school affects your view of whether it is unconstitutional to strip search a 13-year-old girl to look for prescription strength ibuprofen, as Justice Ginsburg recently acknowledged, isn’t that a benefit rather than a loss?  Justice Alito certainly seemed to think so when he stated the following at his confirmation hearing: “[W]hen a case comes before me involving, let’s say, someone who is an immigrant . . . I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. [...]  And that goes down the line. 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.” 

At the very least, in terms of process and the legitimacy of the courts, it seems that people are likely to feel like they got a fairer shake if there is a chance that someone with similar experiences is deciding their cases, no matter what the outcome. Given the mix of people in our country and the range of problems that we bring before our courts, it seems only logical and fair to have a variety of judges to decide cases. And diversity encompasses much more than ethnicity and gender. Judge Sotomayor would add diversity to the Court in a multitude of ways, not the least of which is that she has had many years of prosecutorial and trial court experience.   

Perhaps Judge Sotomayor’s own closing remarks from a much criticized speech sums it up best: “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”