Many bloggers have made the argument that Judge Sonia Sotomayor’s famous “wise Latina” comment has been taken out of context. If you read the whole speech, they say, her statement is far more innocuous in context. As a result of these urgings, I read it. I’m not so sure it looks better in context.
The speech, first of all, is quite informal – she devotes entire paragraphs to the food and music of her childhood. It reads like a presentation made “among friends”. That said, Sotomayor makes the indisputable point that decisions made by judges are at least partially impacted by their biological characteristics and life experiences. Human judgment clearly plays a role in such decisions; hence the need for human judges, as opposed to “law interpreting algorithms” in the first place. A key point, of course, is that in the passage under consideration, she goes beyond this and asserts not just that her decisions would therefore be different than those made by a white male but “wiser”. What she doesn’t address is that if we take a relativist approach to making judgments, how can one judgment said to be wiser than another? What is the objective standard of wisdom to which she implicitly appeals when making her assertion?
This opens up what I think is the much more serious problem with her speech. She attacks an extreme position (a cartoon really): that there is literally no role for inherently subjective human judgment on the bench. That is, she disputes the cartoon of absolute objectivity. Fair enough. Of course, this is not exactly a new insight. It seems to me that a thoughtful jurist would then be compelled to find the limit condition to subjectivity, or else assert that there is no such limit. In other words, is anything asserted by any judge equivalently valid as an interpretation of the law as any other statement? Is there any such thing as law, really? Or is it all just rhetoric used in support of power politics? With no stopping condition the legal philosophy that refuses to accept the idea of objectivity becomes legal nihilism: the law is whatever those who have the loyalty of the armed forces say it is, or more precisely, act as if it is.
It seems pretty juvenile to me for Sotomayor to point out that the cartoon of perfect objectivity is obviously not realistic without describing how we avoid the alternative cartoon of nihilism. Now, as per the need for human judges, there can’t be an algorithmic answer to this question. But any judicial philosophy, it seems to me as a non-expert, ought to be centrally concerned with whatever frameworks, heuristics and rules-of-thumb are used to manage this tension. Sotomayor seems to be entirely oblivious to any of this in this speech.