May 28, 2009 -- 10:15PM, aarroottoonn wrote:

I have read what she said, multiple times. It wasn't in a legal decision, it was in a speech to the University of Cal Berkley, "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."

Ann Coulter said it correctly, when she said this doesn't make the judge a racist, but the statement is. That is totally correct.

"Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address"

These statements seem to be making the rounds on the threads here, so my response will probably be making the same rounds :-)

Justice Ginsburg said much the same thing -- and perhaps even went a bit further -- earlier this month.  One thing she said was:

"You know the line that Sandra [retired Justice Sandra Day O'Connor] and I keep repeating ... that 'at the end of the day, a wise old man and a wise old woman reach the same judgment?'  But there are perceptions that we have because we are women.  It's a subtle influence.  We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive."

When the Court's decision in the recent AT&T pregnancy/seniority benefits case was announced, Justice Ginsburg exercised her prerogative to read her dissent from the bench.  When she concluded, she then called on Congress to reverse the Court's decision in that case.  That didn't happen, but it came close:  One of Obama's first official acts as president was to sign into law congressional legislation giving employees far more freedom to sue for pay bias long after it began.

Justice Ginsburg's statement above is no more sexist than Judge Sotomayor's observation is racist -- which is to say these are not sexist or racist statements. 

In the US we don't get to elect our Supreme Court justices.  But we do get to elect the president who nominates them and the senators who confirm them.  So the nomination and confirmation of Supreme Court justices is, in significant part, a political process.  Seeking nominees to the Court from particular demographics (be it gender, race, religion, or geography) -- demographics which are represented by the president and senators we elected to act for us in nominating and confirming Supreme Court justices -- is a legitimate and integral part of that political process of representational government.

In keeping with this, the Constitution is silent on the qualifications for who can sit on the Supreme Court.  This silence reflects the Founders' recognition of and deference to what they understood to be the political nature of the nomination and confirmation -- the advise and consent -- process.

As it happens, demographic diversity can be an important factor at play in legitimizing a given ruling in the eyes of the public.  For example, Brown v. Board of Education might not have been as well-received by the general public -- it wasn't even all that well-received in many parts of the country, anyway, and took decades longer than its admonitory "with all deliberate speed" to implement -- had there been no justices from the South on the Court.  (Brown was decided unanimously.)