Sonia 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 than hasn't lived that life." Is this racism?
If I say "Jews are often better at intellectual pursuits than non-Jews" I may believe that Jews have a genetic advantage in pursuing intellectual activities (a claim some have made), or I may believe that the Jewish culture and Jewish history have encouraged intellectual pursuits, creating an environmental bias toward such pursuits. In either case the statement does not imply that Jews are a race -- while the concept of human races is doubtful and discredited overall, a fortiori it does not apply to Jews or Latinos. It does not imply that race is a primary determinant of human traits. It may or may not be a prejudice, depending to whether it is an objective statement, or a blatantly subjective statement, based on my dislike of non-Jews. It is quite unlikely to be a racist statement.
If I say "The Jewish experience makes Jews more often than not, better at intellectual pursuits then the experience of gentiles" then I clearly do not attribute the possible advantage of Jews in intellectual pursuits to genetic determinism, but to the environment they live in -- their history, their culture, their social environment-- clearly a non-racist statement (albeit possibly prejudiced).
If I say "I would hope that the Jewish experience makes Jews, more often than not, better at intellectual pursuits than gentiles". I do not even express a certitude that Jews have any advantage, just a hope that their experience would provide then with such an advantage. One would need to be singularly prejudiced to see such an expression as racist or to see it as implying racist determinism.
Is there something wrong if a judge's decision is influenced by his or her upbringing, religion, ethnicity, or sex? The Supreme Court judges are smart people. If ruling was merely a matter of a strict, rational interpretation of statutes, then most decisions would be unanimous: rational people will reach the same conclusions from the same premises, if they use logical deduction. Clearly, this is not the case, and clearly, decisions of judges are heavily influenced by their world view. Clearly, this applies to conservative judges no less than to liberal judges. In fact, it is quite incorrect to call the majority on the current supreme court "conservative" as it shows little respect to established precedents and is quite eager to overturn many of those.
It is a pity that the current debate about Sotomayor and about the proper world view for supreme court judges is so superficial and so partisan. There is a problem when major decisions are repeatedly taken with a 5:4 majority. The current debate is unlikely to advance a solution to this problem.
The following is quoted from a review of "LEADERS OF THE PACK: POLLS & CASE STUDIES OF GREAT SUPREME COURT JUSTICES", by William D. Pederson and Norman W. Provizer (eds.). The review is by Joyce A. Baugh.
The final chapter in LEADERS OF THE PACK is a provocative essay by David Schultz titled, "Why No More Giants on the Supreme Court: The Personalities and the Times." Schultz asserts that two characteristics make a justice great: 1) "creat[ing] a new paradigm for him or herself, the Court, or the law," and 2) the ability to "persuade others, on the Court, in government, and in society to adopt a particular perspective on the law" (p.264). He cites John Marshall, Joseph Story, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Hugo Black, Earl Warren, and William Brennan, as examples of justices who succeeded in this regard.
Schultz then evaluates the current justices against these two characteristics and concludes that none of them have the potential for greatness. He suggests three primary reasons for this. First, they are serving "at a time when there is a diminished expectation of stated desire for them and the Court to engage in major jurisprudence or legal thinking" (p.270). Second, the post-Bork confirmation process has contributed to the selection of justices who are "confirmable," not because of their intellectual ability. Schultz writes, "This is not to imply that these justices are idiots, but instead to suggest that an important reason for their being on the Court is that they were deemed acceptable and that they would be worthy delegates for the president who nominated them" (p.271). The third factor is that legal education in the post-World War II era is more technically focused than oriented to the liberal arts. Schultz sums up his pessimism about the future in the first paragraph of his conclusion: "There are no giants on the Supreme Court today and the prospect is that for the foreseeable future that will remain true. Many structural and ideological forces are at work that make it difficult for a new giant to emerge, or for any of the current justices to rise to that level" (p.273).
Great Supreme Court judges are judicial activists. The supreme court will not have great judges as long as judicial activism is a pejorative. But the country badly needs great Supreme Court Judges.
