Denver Bar Association
July 2009
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Point/Counterpoint: "Sotomayor Will Make the Court Better" and "Justice Sotomayor?"

by David R. Fine, Doug McQuiston

Point: Sotomayor Will Make the Court Better

by David R. Fine

The debate over the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court highlights an underlying assumption of the important notions of diversity and inclusivity: a diverse organization whose entire membership owns the group’s mission is objectively better than a homogeneous organization.

Several years ago, when the Supreme Court considered the University of Michigan Law School’s use of race as a potential factor in admissions decisions, Justice Sandra Day O’Connor said she was influenced by briefs submitted by corporate America and the military. General Motors and 3M among others, had argued that "the skill needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." High-ranking retired officers and civilian leaders of the U.S. military had contended that a "highly qualified, racially diverse officer corps…is essential to the military’s ability to fulfill its principle mission to provide national security."

Unlike the diversity that has been achieved in the business world and in the military, diversity efforts have fallen short in the legal profession. Many persons of color who join law firms find that they are never quite accepted into the culture and face myriad subtle obstacles to advancement, most of them unintended.

Similarly, diversity hasn’t quite reached the federal courts, particularly the U.S. Supreme Court. The first woman named to the Court was Justice O’Connor in 1981. There has never been more than one woman and one African American on the Court at the same time. As political writer Peter Baker noted May 31 in The New York Times, of the 110 people who have served on the Court, only four were not white males.

Judge Sotomayor possesses the academic bona fides for the Court (Princeton undergraduate, Yale Law). She has more judicial experience than any other sitting justice had when they joined the Court. She has been a district attorney, a corporate litigator and a trial judge.

Despite her achievements, Judge Sotomayor echoes the doubts expressed by minorities in traditional law firms. According to a May 27 New York Times article, Judge Sotomayor once said in a speech that she feels, "not completely a part of the worlds I inhabit." At the same time, some opponents of her nomination have questioned her intelligence and her experience.

Inclusiveness, which goes beyond mere numerical diversity, is the notion that every member of a firm brings his or her own experience and should be empowered to contribute to the greatest extent. That is, each employee should feel a sense of ownership in the organization.

One local organization that exemplifies the wisdom of diversity and inclusion is the Colorado Campaign for Inclusive Excellence, a local nonprofit dedicated to promoting diversity and inclusiveness in the legal profession. The Denver City Attorney’s Office, along with a number of prominent law firms, Qwest’s legal department and the Colorado Attorney General’s Office are part of CCIE’s pilot program to promote inclusiveness in private and public law firms.

A diverse and inclusive group makes better decisions than homogeneous groups, says Pauline Higgins, a nationally recognized diversity expert in the legal community, in her article in the Texas Lawyer, Jan. 2008. Why? Higgins cites James Surowiecki’s book, "The Wisdom of Crowds." The collective wisdom and ideological exchange in a diverse group where everyone’s views are valued brings different observations and information to the discussion. Such a group knows more than any of its individual members, no matter how talented and bright each of those individuals might be.

I believe this is what Judge Sotomayor was saying — perhaps not with the best choice of words, in the speech for which some have criticized her.

The addition of someone like Judge Sotomayor, who brings life and professional experiences and qualities heretofore lacking on the Court, in addition to a strong academic pedigree, will expand the Court’s collective wisdom. Will Judge Sotomayor be a better justice because of her experience? We hope so. Will the Court be a better institution? No question.

Counterpoint: Justice Sotomayor?

by Doug McQuiston

Elections have consequences. President Obama’s nomination of Judge Sonia Sotomayor for the U.S. Supreme Court position being vacated by Justice Souter is only one of many to come. So, what are we to make of this nomination?

The conservative punditocracy hasn’t advanced the inquiry much. Like many Republicans, I look at the GOP sometimes and find myself echoing New York Mets manager Casey Stengel during one particularly pathetic game, "Can’t anybody here play this game?!"

Let’s first set a baseline. Judge Sotomayor is not a "racist," even under the broadest definition of that term. Furthermore, she is no intellectual lightweight. No one graduates summa cum laude from Princeton, then Yale Law, without intellectual gravitas. Attacks on her reversal rate are likewise a mile wide and an inch deep. "Reversal rates" are self-selected samples — the Court often takes up cases it is predisposed to reverse. Judge Sotomayor’s score, 3 out of 5, is by no means indicative of a lack of judicial chops. One of the brightest stars currently on the Court, Justice Samuel Alito, had a 100 percent reversal rate.

Judge Sotomayor’s story is indeed inspiring. She worked her way from the projects in the Bronx to a Yale law degree. She has many attributes I have longed to see on the Supreme Court: a former practicing attorney, a trial lawyer and prosecutor, trial court judge and appellate judge. Once she is confirmed, she will be the only Justice who has such a ground-floor skillset.

But here’s the issue I have with her nomination: as a conservative, and someone who is active in several Bar Association efforts to promote inclusivity in the Colorado legal community, I am troubled by the notion that simply because Judge Sotomayor is of a certain ethnic background, she is inherently better qualified for a spot on the Court. The idea that her ethnicity alone will "make the Court better" than it is — a notion voiced by Judge Sotomayor herself — troubles me even more.

In several speeches, Judge Sotomayor has stated her belief that her ethnicity (she’s a Latina of Puerto Rican descent), makes her more qualified to serve as a judge or justice than a comparably educated white male. Her exact quote?

"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." —La Raza L.J. 87, Spring 2002

The White House has recently tap-danced away from this quote, hinting that she, "might have phrased it differently" if she thought about it. This is a dodge. Judge Sotomayor has repeated this theme often over the course of many years, often enough that it appears to be a belief she holds dear. The extent to which this belief colors her judging is less clear, but it is troubling nonetheless.

Pause, for a moment, and reflect. How long do you think a Caucasian male judge would last in confirmation hearings (or even his current position) had he said, "I would hope that a wise, white male judge with the richness of his experiences would more often than not reach a better conclusion that a Latina female who hasn’t lived that life?"

Aside from the offensive, racial agitprop undergirding her comment, it is devoid of logic. Judge Sotomayor’s ethnicity and background, while compelling biographically, do not inherently qualify her (or anyone else for that matter) for a spot on the Court, anymore than they would disqualify her.

I find it ironic that the left embraces Judge Sotomayor’s ethnicity as an enhanced qualifier for her nomination. Where were the similar liberal accolades for Justice Clarence Thomas in 1991, whose personal background story was every bit as inspiring and compelling as Judge Sotomayor’s? Where were the glowing media reviews of the ethnicity of the many candidates of diverse backgrounds that former President Bush nominated for Cabinet posts, or for the courts? Instead of accolades, some of them, such as Condoleezza Rice, were treated to racially offensive cartoons or editorials in major liberal newspapers, according to the National Leadership Network of Conservative Black Americans in 2004.

So spare me the hypocrisy. Judge Sotomayor’s ethnicity and upbringing are, of course, just as much a part of her character as her Yale Law degree is, and she is right to be proud of all three. But her ethnicity should not enter into any rational discussion of her qualifications to ascend to the highest court in our country.

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