Judge Sotamayor v. Other Latino Judges at Berkeley--She Rejected their Call for Impartiality

I decided today to dig a bit deeper into the context of Judge Sotomayor’s comments at the Sympoisium.  It was worse than I thought–I figured the context would make her comments seem less radical.  In truth, however, the context was her attempted refutation of the point made by some other participants in the symposium–viz., that judges should seek to overcome their prejudices in deciding cases.

She was emphatically rejecting the idea of overcoming one’s prejudices, a mere aspiration, and unrealistic, she said.

The next day of the symposium, Judge Paez of the Ninth Circuit–also a Clinton appointee emphatically insisted on the duty of neutrality:

“The topic for our panel discussion is different voices, different perspectives for 21st-century issues. That is a hard question to answer. I would like to think that I make a difference. As Judge Saucedo said, we are required to apply the law fairly [Judge Saucedo’s comments are below]. I do not think that I ever have applied a different standard in judging a case involving a Latino defendant, a black defendant, an Asian defendant, a white defendant, or a multimillion dollar corporation. But, there is something about our own personal life experience that makes each of us different.

“I used to tell jurors when they entered the courtroom and took their oaths as jurors, ‘You walk into the courtroom with a lifetime of experiences, and we don’t ask you to suddenly forget all that experience, to ignore that experience.’ I asked them if they could judge fairly the case that they were about to hear. I explained, ‘As jurors, recognize that you might have some bias, or prejudice.  Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot – if you cannot set aside those prejudices, biases and passions – then you should not sit on the case.’

The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in my office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that – I am viewed as a Latino judge – as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.

“I think we look at conflicts from our own life experiences. If you were to look at my life – at least my professional experience – and I’ll just start with that, I probably have a unique professional experience. If you looked at the federal judiciary and asked how many federal court of appeals judges are there that worked in legal services, as I did for nine years, I doubt that you would find many. I never worked for a law firm, a district attorney’s office, a U.S. Attorney’s Office, a State Attorney General’s office, or the Justice Department. I worked, instead, for legal services for the poor. That was my professional career. And working in that environment, representing individual clients as well as litigating larger cases, sometimes impacts the way one may look at issues or conflicts. You don’t shed that experience – you don’t leave it behind. But, when called upon to decide a case, judges have a distinct and clear obligation to apply the law fairly and justly to the parties in the case.”

Judge Valencio Saucedo, whose remarks Judge Paez had noted, made the following comments:

“Those are the experiences that I bring to the bench. I should tell you that the vast majority of the people who appear in my courtroom are Hispanic, and so I understand their particular experiences. That does not mean that I apply a different standard of justice, because that is wrong.”

He also suggested that even asking him the question of whether he would be impartial was offensive: 

“During the time that I was applying to be appointed to the bench, I was asked whether I would be able to sit in judgment of Hispanics. I said, ‘Without a doubt.’ I wonder if others who are not the same color as I am are asked the same question, whether they are able to sit in judgment of people who look like them. “

Our Republican Senators must ask her frankly the question: Does she disagree with Judge Saucedeo?  Does she disagree with Judge Paez?  Does she believe that judges should set aside their prejudices, or embrace them?