Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow [sic] has noted, there can never be a universal definition of wise. Second, 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.
Brad does a thorough rhetorical review of the speech and I agree with most of what he said (though his evaluation, in my view, suffers from some grade inflation). And with most of what she said, especially as it was not far from the main point of my post. But the famous sentence is wrong as delivered, no matter what she actually believes, and no matter that I was flip in the original post, for two reasons.
Substantively, I think she would, on reflection, say “Second, there are cases in which a wise Latina woman…” and it makes all the difference. There is no reason to believe that Latina upbringing or an extra X chromosome provide a systematic advantage over any other background or sex for all jurisprudence, or even “more often than not”. That would really be racism, because justice and the law are not especially a distinctive part of being a woman, or growing up in the Bronx, and the things that are, like her beloved morcillas, are not much relevant to judging. But to the degree that judging is collaborative, literally as on upper-level appeals courts where panels of judges sit together, and more diffusely, because judges read each others’ opinions and, I suppose, schmoose in the cloakroom and on the golf course and at law school reunions, a judiciary that has more different kinds of people will decide its cases on the average better than a homogeneous one.
Rhetorically, the sentence is wrong for the reason that keeps editors and political consultants up late going over every word of Obama’s speeches, though it wasn’t an important defect in a speech at a law school by a judge, especially as the speech does not say what the sentence says. It became wrong afterwards, when Sotomayor became a public figure of controversy whose every utterance would be picked over by adversaries for things that could be taken out of context and misused. Welcome to the world of national politics, Judge S, where savage little creatures with an instinct for the capillary scour the forest floor for trivia and cheap shot targets.