Thoughts on Law, Politics, Economics, and More from Michael Dorf, Neil Buchanan, Sherry Colb, Eric Segall, and (Occasionally) Others
From your FindLaw Column:[Sotomayor said in a 2001 speech],"I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate." MCD: "Although the sentence ... does indeed suggest that there are circumstances when a judge should consciously give vent to prejudices, Judge Sotomayor cannot possibly have meant that. No judge would seriously maintain that a prejudice is a legitimate basis for a legal decision."This seems right to me, but I think (without having read the speech!) that the sentence can also reasonably be interpreted the way Sotomayor suggests she meant it - namely, as *rejecting* the idea that judging based on prejudices, sympathies, etc. is ever appropriate. After all, sometimes the content of a prejudgment (sympathy, etc.) can be correct even if the mental state that bears it is unjustified or ill-formed. I think Sotomayor was saying that it's the judge's job to figure out when that's the case and when it isn't, but that simply denying that judges have prejudices or sympathies is unrealistic and pointless. Here's a quick example of what I think she meant. Suppose she has a prejudice in favor of celebrities. If a celebrity appears before her, it's her job as a judge not to pretend (to herself) that she doesn't have such a prejudice, but rather to examine the facts of the case as objectively as possible and decide whether, in that particular instance, she should rule in line with her prejudices or against them.This is not to say that she can give vent to her prejudices on occassion, but rather that she must determine whether the content of her considered judgement is the same as the content of her unconsidered judgment. Sometimes it might be.Moreover, returning to the example, if she doesn't acknowledge (to herself, I mean) that she has a penchant for celebrities, she's actually more likely to deceive herself into thinking she's ruling objectively when in fact she's not.
I find it interesting that Sotomayor is slowly but surely backing away not only from her implicit endorsement of legal realism (as you suggest) but also from the importance of perspective ("a wise Latina woman") which is vital to the whole diversity concept. Either she is being disingenuous or, it seems to me, she is undermining the entire basis of her appointment, not to say the common law system. It is as if Holmes were testifying and announced that, I misspoke, I meant to say that the life of the law has been not experience, but logic: or maybe that it isn't alive, at all.
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