A new perspective on the high court

By Holly Fujie
President, State Bar of California

Fujie

In the wake of the Senate hearings on the nomination of Judge Sonia Sotomayor to the Supreme Court, it is important to remember the critical role lawyers play in the debate over the selection of judges and in striving to ensure the existence of fair and impartial courts. In evaluating the qualification of Judge Sotomayor to the highest court in the land, it is not surprising that the discussions have had a distinctly political character. Democrats and Republicans alike have dissected her speeches, opinions and life story in an attempt to predict how she will vote in the future. Such predictions, of course, are as often wrong as they are right.

The proper focus of the discussion regarding the choice of all judges, from trial court to Supreme Court, is to determine whether the nominee or candidate is qualified to serve as a fair and impartial judge. Intelligence, practicality, knowledge of the law and skill at learning new and emerging areas of law, ability to evaluate and weigh the facts fairly and to acknowledge and adapt this weighing process to changing circumstances, ethics, integrity and the respect of the legal community in which s/he has practiced are indispensible characteristics. The courage to make rulings based upon an impartial evaluation of all legitimate factors — without concern for the potential popularity of the decision — is also a crucial part of the makeup of a great judge. Whether a nominee or a candidate possesses these characteristics is the legitimate goal of those charged with determining whether a person becomes or remains a judge. Attempts to ensure that said person will rule in favor of a particular position or party regardless of the legal merits is not, and should be discouraged by the legal community.

Much of the debate over the nomination of Judge Sotomayor has related to the fact that she is a Latina, the United States-born daughter of immigrants from Puerto Rico. In one respect, this discussion may seem rather odd in view of her credentials on paper. Her background is among the most solid academically and in practice to come before the Senate Judiciary Committee in recent years. Moreover, she has a bipartisan background:  President George H. W. Bush nominated her to the District Court in New York and President Bill Clinton named her to the Court of Appeals. She also reaffirmed her dedication to public service by her active roles on boards that reflect her commitment to and knowledge of both the community and the business world.

On the other hand, it is not surprising that the popular press and talk radio have focused on her ethnicity, particularly her mention of race as a factor in judging. She said, in what she now describes as a failed rhetorical flourish, how a “wise Latina” judge might have ruled differently than “wise white men” on cases that have in the past upheld instances of race and sex discrimination. Note that Judge Sotomayor did not say that such a wise Latina would rule differently in all cases than a wise white man, but only that such a woman would be unlikely to have ruled the same way on those cases. I have heard her referred to as a “reverse racist” because of this comment. Yet her point is valid, because differences in a judge’s experience do contribute to that judge’s view of what is reasonable and what is fair — issues that arise in many cases, not just those involving discrimination.

We as lawyers know that being able to take an impartial view of the law is not all that one does as a judge. Judges are also fact finders — not only when they are sitting in a bench trial, but also when evaluating the effect of that impartial legal analysis on the facts of a case in either a trial or an appellate court. Take Plessy v. Ferguson, which was well-regarded in legal circles and by the public for upholding the Constitutionality of “separate but equal” streetcar facilities. In that decision, issued by a Court consisting entirely of “wise white men,” the Court looked at the facts of and applied them as the justices perceived them through their own experiences. They upheld the enforced separation of the races, finding that: “Laws permitting, and even requiring, [the races’] separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.”

The Court also dismissed the plaintiff’s argument that if it was constitutional for separate accommodations to be ordered for different races, the police power could also be used to justify separate accommodations for people with different hair color or different nationalities, stating that “every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of the particular class.”

In other words, the Court looked to the impartial standard of the law, which required that they determine what was reasonable, in good faith, for the public good and not oppressive or annoying, and applied that impartial legal standard to the facts according to their own experience. They (with the exception of the lone dissenter, Justice John Marshall Harlan) did not see that requiring non-whites to use a “separate but equal” facility was in itself “oppressive and annoying,” or that such separation could not be justified as “reasonable” under any circumstances. They were not trying to be unfair to those being relegated to “colored” facilities, but they could not perceive that such enforced separation was inherently unfair. This decision stood for more than half a century before it was struck down in its entirety in Brown v. Board of Education.

These days, Plessy is seen only as an example of a very bad decision, but for more than 50 years it was the law of the land. If there had been a person of color on the Supreme Court deciding Plessy, would that Court have decided the case in the same way? Can one sit with a colleague who has experienced the humiliation of being forced to use separate facilities solely because of his or her race and hold that requirement to be “reasonable”?

Similarly, if there had been a Japanese American Supreme Court justice on the Court in 1944, would it have decided in Korematsu v. United States that the incarceration of thousands of innocent Japanese Americans was justified by vague and unsubstantiated assertions of possible espionage? Fairness is certainly not the exclusive property of any one race or group, and any one person can be perfectly fair. After all, Brown was decided by another set of nine “wise white men,” albeit in response to the arguments of the NAACP and future Supreme Court Justice Thurgood Marshall. But hearing about and seeing discrimination is different from experiencing the pain it causes.

It has been said in the discussion of Judge Sotomayor’s nomination that the race and gender of a person should not be considered at all in the selection of a judicial nominee. Yet we as lawyers understand how each person’s experience affects his or her perception of what is reasonable and what is fair. Adding the perspective of a “wise Latina woman” justice or of any person with such diverse life experiences to the Supreme Court cannot help but enrich their discussions and, as a result, make their decisions more reflective of the entirety of the American experience.