Home -> Law Blog Directory -> Legal Commentary Blogs -> TalkLeft

Legal Commentary

: TalkLeft

Justice Ginsberg on Judicial Diversity

By TChris

Justice Ruth Bader Ginsberg, asked whether criticisms of Judge Sonia Sotomayor's intelligence and attitude are gender-based, gave this spot-on answer:

I can’t say that it was just that she was a woman. There are some people in Congress who would criticize severely anyone President Obama nominated. They’ll seize on any handle. One is that she’s a woman, another is that she made the remark about Latina women. [In 2001 Sotomayor said: “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.”] And I thought it was ridiculous for them to make a big deal out of that. Think of how many times you’ve said something that you didn’t get out quite right, and you would edit your statement if you could. I’m sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the conference better. That I’m a woman, that’s part of it, that I’m Jewish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.

The importance of judicial diversity is exactly the point conservatives refuse to acknowledge when they contend that only conservative judges (who not coincidentally are overwhelmingly white males) "follow the law." [more ...]

Republicans contend that conservative judges follow the law while liberal activist judges make the law. As TalkLeft posts have often discussed, that argument is absurd. Interpreting ambiguous laws and applying statutes and constitutional provisions to new fact situations is a judicial responsibility. Each time an appellate court addresses a legal question that has not been squarely answered by binding precedent or legislation, it is "making law."

Republican complaints about judicial activism foster the myth that there is only one "correct" answer to an unsettled legal question. The first year of law school disabuses surviving students of the misguided notion that difficult questions of law have a single answer. The prevalence of dissenting opinions is proof that there are often two or more reasonable resolutions of legal issues. The "best" answer depends upon how the judge balances competing values. For instance, judges who give greater weight to public safety than civil liberties are more likely to favor the interests of law enforcement than those of criminal defendants, while judges who value individual rights more than deference to executive power are less likely to be swayed by a prosecutor's arguments.

A judge's background and experience necessarily shapes that judge's view of the law. As Justice Ginsberg noted, female judges have a keener appreciation of sex discrimination and sexual harassment than male judges. Their experiences give them first-hand knowledge of the problems that remedial civil rights legislation attempts to address. Appellate judges who are willing to listen and learn from each other gain a deeper appreciation of the law's function and impact when colleagues from from different backgrounds bring their "different life experience[s] to the table."

Only a diverse judiciary can reflect the nation's diversity. The law belongs to everyone, not just conservatives who happen to be white and male. In the words of Justice Ginsberg:

I always thought that there was nothing an antifeminist would want more than to have women only in women’s organizations, in their own little corner empathizing with each other and not touching a man’s world. If you’re going to change things, you have to be with the people who hold the levers.

Judge Sotomayor, like Justice Ginsberg, belongs "with the people who hold the levers."

Full post as published by TalkLeft on July 10, 2009 (boomark / email).