Diary

Judicial impartiality and the unabridged (prior) context of Judge Sotomayor's "La Raza" remarks

So we’ve been hearing alot about how conservatives have taken Judge Sotomayor’s 2001 remarks out of “context.”  Here’s some unabridged prior context.

Judge Sotomayor chose as her foil the remarks of Judge Miriam Cederbaum, Judge Sotomayor’s former colleague at the SDNY court, a Reagan appointee, and now a senior judge. 

Here are the comments with which Judge Sotomayor disagreed. 

The pendulum swings back and forth. The pioneers in the suffrage movement sought support in separate women’s organizations. Many women of my generation believed that separateness undermined equality, and we sought integration. I have never referred to myself, for example, as a woman lawyer or a woman judge because I have always believed that those were not categories. That is, people are undoubtedly men and women, but lawyers and judges do not have genders. This is a viewpoint that is now controversial, and is under attack by some feminist theorists who propound the idea that women think differently from men, and that there are gender-based intellectual differences that should be recognized in the work place.

Some of these voices are uncomfortably reminiscent of descriptions of the alleged “differences” between men and women that were used in times gone by to disqualify women from professions and preclude them from higher education. For example, in 1905, a former President of the United States wrote an article in the Ladies’ Home Journal opposing suffrage for women. In his article, President Cleveland wrote the following:

Thoughtful and right-minded men base their homage and consideration for woman upon an instinctive consciousness that her unmasculine qualities, whether called weaknesses, frailties, or what we will, are the sources of her characteristic and especial strength within the area of her legitimate endeavor. They know that if she is not gifted with the power of clear and logical reasoning she has a faculty of intuition which by a shorter route leads her to abstract moral truth; that if she deals mistakenly with practical problems it is because sympathy or sentiment clouds her perception of the relative value of the factors involved; that if she is unbusinesslike her trustfulness and charitableness stand in the way of cold-blooded calculation . . . .

Perhaps the next generation of women will not share my negative reaction to thoughts that sound surprisingly similar to those of President Cleveland.

Although undoubtedly we are all affected by our individual experiences and acculturation, our common legal education has ingrained in us the enormous importance in our democratic society of a tradition of independent and impartial judges. The preservation of this tradition depends on judicial integrity, which is the ability and willingness of upright judges to set aside, to the extent possible, their personal sympathies and prejudices in deciding legal disputes. This in turn requires of judges honest self-appraisal and the recognition and acceptance of one’s own fallibility. In some cases, this ideal may be more easily said than accomplished. But, after more than six years as a federal trial judge, I have not seen any basis for believing that gender plays a role one way or the other in any particular judge’s ability or willingness to exercise self-restraint.

I also believe that a good judge should recognize as to all litigants, but especially as to criminal defendants, that “[t]here but for the grace of God go I.” That is, that judges are members of the same species as all the human beings who appear before us. Whether we call it humility, humanity, or compassion, I have not observed differences in this quality among my colleagues that can fairly be explained by gender. The same can be said of wisdom and intellect.

I should add that we still have such a small sample of women on the federal bench that no anecdotal observation has any scientific validity. Moreover, my own recent experience is largely limited to glimpses of the judicial philosophy of my colleagues in their written opinions and in discussions at the lunch table. As you know, trial judges sit alone in separate courtrooms.  

Perhaps it is because of my own background that I find it difficult to accept the notion that as judges or lawyers, men and women have fundamentally different approaches. I grew up in a family in which it was assumed that girls could do anything that boys could do, especially in the intellectual sphere…..

Rather than spending too much time on personal reminiscences, let me sum up. When Florence Allen was appointed as a Judge of the Court of Appeals for the Sixth Circuit [in], Attorney General Homer Cummings said: “‘Florence Allen was not appointed because she was a woman. All we did was to see that she was not rejected because she was a woman.'” I look forward to the time when women will comprise such a substantial and accepted part of the legal profession that the same can be said about all federal judges who happen to be women.

SOURCE: Miriam Goldman Cedarbaum, Women on the Federal Bench, 73 B.U.L. Rev. 39, 43-44 (1993).