A Wise Person for the Court

Posted on May 28, 2009

By Ellen Goodman

    So we face the riddle of the wise old man, the wise old woman, and the wise old person.

    Sonia Sotomayor, Bronx-raised and Ivy League-educated “Newyorkrican” has been nominated to the Supreme Court. What a difference since Ronald Reagan had to reach into a state appeals court to find his “first.” Today the most experienced candidate is the diversity candidate.

    Unable to attack her credentials, opponents instantly highlighted a sentence from a thoughtful speech on life as a Latina and judge. “I would hope,” she said, “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.”

    “Reverse discrimination!” cried Rush Limbaugh. “Identity politics!” huffed opponents waving this evidence that her background was her bias, against of course, white men. They would have been better off reading her entire meditation on what life experience brings to the bench. But that doesn’t happen in a politics of sound bites.

    Indeed, Sotomayor was considering a phrase that Justices O’Connor and Ginsburg have both repeated: “At the end of the day, a wise old man and a wise old woman reach the same judgment.”

    Neither justice was denying the importance of more women on the court. O’Connor, after all, praised her successor, John Roberts, saying, “He’s good in every way, except he’s not a woman.” Justice Ginsburg has made no secret of the loneliness of the lone woman. They merely raised the possibility that wisdom is—or can be—an equal opportunity gift. A wise person.

    Nevertheless, this swirling controversy around the third woman and first Latina on the court raises an old question about how much difference diversity makes. Or should make.

    Justice Scalia, for example, has insisted that his religious background has nothing to do with his legal opinions: “Just as there is no ‘Catholic’ way to cook a hamburger,” he said there is no legal decision spiced by his upbringing. True or self-deceptive? Justice Roberts, described as a “relentless champion of the overdog,” may see himself as the paragon of impartiality. It is only newcomers who are challenged as change agents.

    We know that there is no single “woman’s point of view.” O’Connor and Ginsburg were not ideological twins. Yet, I remember the school sexual harassment case when Justice O’Connor spoke for Little Jane while her peer and classmate Justice Kennedy spoke for Little Johnny. More recently, there was the case of a 13-year-old schoolgirl strip-searched to (only) Justice Ginsburg’s dismay. And when Lilly Ledbetter came to court, there was a shortage of wise men.

    A study of federal appeals court judges by three university researchers shows that the gender of judges makes no difference in the way they vote most of the time. But in sex-discrimination cases, female judges were 10 percent more likely to rule for the plaintiff. More intriguingly, when men and women decided such cases together, the men were 15 percent more likely to rule for the plaintiff than when they made decisions with only men. Did those women add to the sum total of wisdom?

    Life experience is not just a matter of gender or ethnicity, or generation. Sotomayor brings to the bench her experience as a poor child, as a diabetic, even (gulp) a Yankees fan. Nor can you always predict how experience matters. “I simply do not know exactly what that difference will be in my judging,” acknowledged Sotomayor honestly. “But I accept there will be some based on my gender and my Latina heritage.”

    Well, remember that Ginsburg and O’Connor said that “At the end of the day,” the wise old woman and man will decide the same way. They didn’t say which day. Or how we get there. There may never be universal wisdom or gender-neutral experience. But surely there is the possibility that we can see through each other’s lenses.

    O’Connor in her eulogy to the first African-American justice, Thurgood Marshall, talked about how his stories “would, by and by, perhaps change the way I see the world.” Having him in the room changed things. So too a wise old woman and a wise old man may only get to the same decision if they are in the same room discussing the same case.

    Again, we ask the riddle: How many more wise women do you need to make a wise person on the Supreme Court? Sonia Sotomayor and counting.

  Ellen Goodman’s e-mail address is ellengoodman(at)globe.com.   

    © 2009, Washington Post Writers Group

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