When President Barack Obama nominated Justice Sonia Sotomayor a year ago, the debate surrounding her confirmation included a wide array of scrutiny. Some of the items of discussion were more relevant and more substantive than others.
As the US Supreme Court’s first Latina, third female, and first Type 1 Diabetic to serve on the bench, the greatest amount of focus seemed to fall upon her non-legal, personal history. Particularly, as this blog has noted, the confirmation hearings concentrated on whether that personal history and her self-identified “Wise Latina”-ness would enhance or detract from her ability to effectively and fairly “say what the law is.”
Nearly a year after her confirmation, the evaluation of the Wise Latina’s first session as a Justice has already begun. But what if, a year later, we approached the discussion concerning her role on the Court from another direction? Instead of a debate centered only on Justice Sotomayor’s specific job performance, the discussion might also include the value that comes from choosing a role model that can inspire the underrepresented within the legal community.
A 2003 ABA study found that women comprise only 29.7% of all lawyers, and their presence in the judiciary is even more inequitable: of US Circuit Court judges—20.1%, of US District Court judges—19.2%, and on state courts (of last resort)—26.3%. A similar 2000 ABA study shows that among judges, magistrates, and other judicial employees, the make-up of minorities is as follows: Hispanics—4.5%, Blacks—8.8%, Asians—1.6%. Unsurprisingly, these statistics are unbalanced compared to the figures on US population by race and ethnicity, and they are bleak compared to the statistics on incarceration.
Assuming our society values a legal community that more closely resembles the greater population, where does that more representative panoply begin? Every legal professional has a personal narrative that includes his or her reason for choosing such a career. For a great majority of us, it starts with example. It is extremely powerful to actually witness that someone like you—someone who may share similar characteristics or personal history—can succeed professionally.
As a Latina entering my second year of law school, I find myself inspired by Justice Sotomayor’s career. Raised by a single parent, I grew up below the poverty-line in Southern California among a rapidly growing Hispanic community. Something felt familiar as I became acquainted with Justice Sotomayor’s story. According to her official biography, she is the daughter of Puerto Rican parents, grew up in a South Bronx housing project, and after her father’s death when she was eight, she was raised by her mother, a nurse.
The confidence I have that I can complete law school and have a successful legal career is not limited to one particular person or opportunity. But I can testify to the profound inspiration that comes from seeing a well-qualified, confident woman of color, who came from a somewhat similar set of obstacles, hold a position of prestige in the very same professional community I seek to join.
On June 28, Judge Elena Kagan’s confirmation begins. Naturally, I am hoping that her hearing will include a substantive and thorough discussion of her professional credentials. I am also hoping, though, that part of the discourse includes the value of having more female and minority role models in positions of power in the legal community.
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Vince, speaking as a straight, white, upper middle class educated male, I’m going to have to respectfully ask you to stop whining. You’re making us look like crybabies, to which my only logical response is, “how dare you?”
I am not unsettled by Melissa’s suggestion that it is desirable to have powerful professions like the law more closely resemble demographically the general population nor that Melissa is inspired by the achievements of someone with a similar background to hers. Pride in one’s group surely can be carried too far. It can lead to xenophobia and various forms of oppression. But ethnic or regional pride need not entail, and thankfully rarely involves, the gross evils associated with the worst cases of such fervor. (I am not here referring to St. Patrick’s Day celebrations.) So should a candidate’s gender, ethnicity, race, religion, and region be considered in selecting justices of the Supreme Court? If the Court were comprised exclusively of Catholic women of Italian heritage from the Northeastern United States, wouldn’t we think a little difference in the next justice a good thing, even if the mythical best qualified candidate was a Catholic woman from the Northeast of Italian heritage? And if so, why would that be?
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Chief Justice Nathan Heffernan of the Wisconsin Supreme Court was fond of telling the story of a friend of his who, upon viewing the many portraits of the former members of that court, referred to them as “a bunch of guys who knew a governor.”
Critics of efforts to diversify the judiciary often imagine a world where judges are selected based upon pure merit, without personal connections or political considerations coming into play. The truth is that merit has never been the sole factor in selecting judges in our nation’s history. There are many other considerations, such as geographic balance, and and a strong case can be made that this is as it should be.
If one thinks of a court of law as a black box that dispenses something called “justice,” one realizes that our society relies upon the fact that the general public will accept the result without too much questioning. One can pick away at the various inputs that go into the black box — questionable eyewitness identifications, perjured testimony, biased judges, inattentive jurors, etc. — but at the end of the day the general public has to have enough faith in the procedures and personnel involved in the justice system to be able to accept the result that comes out.
The simple fact is that the African American and Hispanic communities would inevitably come to reject any “justice” that is dispensed by a criminal justice system that contains few, if any, black or brown faces besides the defendants. The greatest benefit of diversity in the judiciary is that it increases the legitimacy of our courts in the eyes of populations who often see themselves as the targets of government indifference or, even worse, prejudice.
Promoting the legitimacy of the court system in the eyes of the minority segments of the general public is a valid societal goal, and it is a goal that benefits all of us regardless of our race, religion or ethnicity. Since the time when Aeschylus wrote The Oresteia, mankind has viewed the courts as a non-violent way of resolving grievances within a society. This works so long as the public accepts the “justice” that the courts dispense.
In addition to her substantial experience as a prosecutor and a trial judge (not shared by any of her current colleagues), the fact that Justice Sotomayor is a Latina sitting on the highest court in the land can only serve to support the acceptance of the “justice” dispensed by the United States Supreme Court. Why this factor should be ignored, but the use of personal connections or political favors to select justices tolerated, is beyond my understanding.
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“The simple fact is that the African American and Hispanic communities would inevitably come to reject any “justice” that is dispensed by a criminal justice system that contains few, if any, black or brown faces besides the defendants. The greatest benefit of diversity in the judiciary is that it increases the legitimacy of our courts in the eyes of populations who often see themselves as the targets of government indifference or, even worse, prejudice.”
I understand your point, Professor Fallone, but even acknowledging that we haven’t quite gotten there yet in the Wisconsin judiciary (which isn’t a knock on the very qualified minority jurists we already have; I’d just argue a few more wouldn’t hurt!) I’m a bit skeptical that seeing a face the same color as yours ruling on your case is going to make a bitter pill easier to swallow. Frankly, in the times where I HAVE been in front of a minority criminal judge, my clients and their families have seemed to believe they were being betrayed by “one of us” when the sentence was handed down. And, personally, I’m not sure I’d breathe easier myself if I was ruled against as a party to a court case just because the guy doing it happened to be a Jew or from Boston.
Vince, I agree with you that Justice Sotomayor’s “wise Latina” comment was a bit ridiculous and, at the very least, borderline bigoted toward white males. I say that because, were this a white male judicial nominee commenting that his experience was better than a Latina woman’s, he’d be ripped to shreds in the media. But when you start acting like the only way minorities can compete with the “white” populace is by getting handouts (which, sorry to say, is EXACTLY the implication you’re espousing with that “give them real estate” comment), I think you’re becoming no better than you claim Justice Sotomayor was. Since when have you taken the “If you can’t beat them, join them” tack?
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I’m not entirely sure why we use the word ‘diversity’ regarding the SCOTUS. It’s a non-diverse group. Only a handful of law schools are represented.
Dear Mr. Heine,
One of your factual assertions puzzles me.
You state that, “I also have no doubt that she got a massive scholarship for not being white or male.” Where is your proof of this? Do you have records from Marquette that indicate that Ms. Longamore received a scholarship for not being white or male? Do you know any of Ms. Longamore’s friends who told you this? In other words, do you have any verifiable records that explicitly state that Ms. Longamore received money from Marquette because of her gender or ethnicity?
Thank you in advance for your response to my questions.
Kind Regards,
Jon Terry
Dear Mr. Heine,
One more question: What is an “upper-middle”?
Thanks again for your response.
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Mr. Heine, your comments make several points, but the issue I have with these points is that few of them appear directly connected to any other argument being made, by me or other commenters.
Including my entry, no one has turned this into a debate on whether women or minorities should be given “handout” positions in which they are unqualified for or less-qualified than white males competing for the same positions.
Yet, your argument settles itself around this false dilemma in which women and minorities, who you assume are per se unqualified/under-qualified in this situation, are pitted against white males, who you assume are qualified.
In fact, several of your comments make similar offensive and inaccurate assumptions about me personally. You assume that I received a “massive scholarship,” that I did so only because of my underrepresented status, and that my unfair placement at this school has somehow deposed “many white males with superior grades and comparable family income levels.” What in my entry led you to those assumptions?
Instead of getting bogged down further in debate, let’s try and come away with some agreement on this issue. I agree with your argument that change is best when it happens organically and that “forcing” diversity often results in unintended stigmas in our society. I also agree that it often takes time for a population to rise “naturally” to roles of leadership within a profession. I fail to see, on the other hand, how acknowledging the powerful effect that role models have on future generations is subverting or forcing the natural process. As Professor Fallone acknowledged, Justice Sotomayor was, in her own right, a highly qualified candidate for a spot on the Supreme Court. The fact that other women or minorities might find inspiration in her career (and praise that phenomenon) seems natural and positive. Can we agree that this is fairly benign?
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Well, Melissa, I certainly agree with that.
Vince, regarding your insistence that Melissa’s support for diversity on the Court must be racist, (if I’ve misunderstood your point, let me know), I think that people can favor diversity without having any racist intention or effect. One of the main reasons I am happy to see diversity increase is because I think that institutions probably work better when they have people from different backgrounds and points of view.
There is some research that backs up that intuitive assumption; for instance, the Tufts study in 2006, http://www.eurekalert.org/pub_releases/2006-04/tusa-dig040606.php, (“In a study involving 200 participants on 29 mock juries, panels of whites and blacks performed better than all-white groups by a number of measures. “Such diverse juries deliberated longer, raised more facts about the case, and conducted broader and more wide-ranging deliberations,” said Sommers. “They also made fewer factual errors in discussing evidence and when errors did occur, those errors were more likely to be corrected during the discussion.”); and an interesting University of Illinois study last year, http://www.eurekalert.org/pub_releases/2009-03/asa-rld033009.php (“For every percentage increase in the rate of racial or gender diversity up to the rate represented in the relevant population, there was an increase in sales revenues of approximately 9 and 3 percent, respectively. Herring found racial diversity to be a better determinant of sales revenue and customer numbers than company size, the company’s age and the number of employees at any given work location.
Companies with a more diverse workforce consistently reported higher customer numbers than those organizations with less diversity among staff. In terms of racial diversity, companies with the highest rates reported an average of 35,000 customers compared to 22,700 average customers among those companies with the lowest rates of racial diversity. The difference is even larger for gender diversity rates. That is, companies with the highest levels of gender diversity reported an average of 15,000 more customers than organizations with the lowest levels of gender diversity. Herring also found that the smallest incremental increase in levels of racial or gender diversity resulted in more than 400 and 200 additional customers, respectively.”)
I believe that in the brouhaha following her remark, now-Justice Sotomayor’s attempts to explain what she meant to say ran along these lines–that she meant to say that it is good to have different perspectives when judgments must be made. And these sort of “the whole is more than the sum of its parts” benefits could be non-racist reasons for faculty to treat diversity (of race, class, or other considerations) as a plus factor in admissions.
Finally, I just want to note that one of the major lessons of my adult professional life has been to learn to avoid making assumptions about the background of anyone I meet, student, professor, cab driver, whatever. And to avoid jumping to negative conclusions about other human beings’ motives. It’s really true what they say about that word “assume,” especially in law practice!
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I’m sort of glad to have missed this thread until now. Ms. Longamore and Prof. Slavin have summarized why valuing diversity is important, and as an Old White Guy, I couldn’t agree more.
The only observation I’d like to add (assuming someone didn’t contribute it already) is the presumption that Latino populations are new to our country. Mr. Heine wrote that “of the 50 million plus hispanics that live in America, 20 million plus arrived in the last two decades.” Last time I did math, that means 60% of them (30 million) have been in the country longer than 20 years. In fact Hispanic settlement of the continental US PRECEDED English settlement; especially in the SW United States where it began in the mid-1500s. The first Spanish capital of “new mexico” (San Juan de los Caballeros) was founded in 1598 near present day Espanola, NM. La Villa Real de la Santa Fé de San Francisco de Asís (now called just Santa Fe, New Mexico) was founded in 1608; the same year Jamestown was founded. Spanish settlement of California began during the French and Indian War. Latinos have been a significant presence in America before there was an America; it’s not too hasty to think their absence from our political leadership is overdue for a correction.
I will just add that I am somewhat surprised to hear Vince doubt Justice Sotomayor’s explanation that she misspoke, in trying to make some kind of rhetorical flourish. Hasn’t everybody had one of those moments when you think, “what did my mouth just say?”
It’s a fair point that a white male making the same kind of error would receive even harder criticism than Sotomayor did, but pretending outrage at that fact ignores years of history and cultural context.
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It is disappointing that this became a personal-attack-on-Melissa forum. People should be free to blog without fear of personal attack.
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