The Relevance of Experience
Commenter Mike Farmer expresses an objection to my and Mr. Larison’s defenses of Judge Sotomayor’s “wise Latina woman” comment that I suspect is pretty typical and has strong surface appeal:
She might have a deeper understanding of some aspects of the world, but this is irrelevant, and it’s individually possessed, if so, not inherent in being a latino woman.
Justice is blind — this is not a cliche, it’s a principle, and where she might have insight into the life of a latino woman, this can’t be exprapolated to a superior understanding of the law in comparison to what a white male would possess, or a black male, or black woman, or asian male, etc. What in the experience of a latino woman makes that experience more valuable than a white male’s experience?
The answer to this is: nothing – and at the same time, everything. Let’s start by noting, as Chris does in the comments, that the judiciary is disproportionately dominated by white males (although less so every year), often from fairly privileged backgrounds, even if they are relatively diverse ideologically. This fact reduces the number of perspectives with a voice in the judiciary while also privileging one or two particular perspectives. To a point (which we aren’t close to reaching), each additional voice coming from a different background than that perspective thus makes the judiciary’s makeup more representative of the reality in which they must make their decisions.
Of course, that doesn’t really answer Mike’s concern, which is that justice is supposed to be blind, so what possible relevance can/should life experience have on how a judge should interpret the law? The trouble with this question is that it misses two key points:
First, although blind justice is absolutely the ideal and the goal, it’s essential to recognize that we all have our biases that are the products of our experiences and which we cannot overcome. It would be foolish to think that as a practical matter judges are capable of completely overcoming (without overcompensating for) those biases when it comes to interpreting the law. The only way, then, to eliminate these biases and move closer to the goal of blind justice is to bring as many biases as possible into the system so that they either cancel each other out so that no one bias has a disproportionate amount of weight or, more hopefully, provide a greater diversity of voices to which judges may listen and from which they may learn, allowing them to get closer to the unattainable goal of overcoming their biases.
Second, and more importantly, there is the simple fact that judging, even on the appellate level, isn’t just about interpreting the law – it’s also about interpreting and understanding the facts of a given case and determining which facts are and are not relevant to a given interpretation of the law. In this arena, having a judiciary that is more in touch with the people they are judging is definitely important.
For example, look at the gay marriage issue. There, the question is whether restriction of marriage to a man and a woman violates equal protection principles. This seems fairly straightforward, except that it’s not. If you think homosexuality is a choice, or if you think homosexual love is less than sincere, you may well come to a very different conclusion than you will if you think it is a heritable characteristic or that it is qualitatively as meaningful as heterosexual love – even if you maintain the same interpretation of equal protection. If you think it’s a choice you will conclude that there is no equal protection issue – gays aren’t being denied any equal protection in this scenario since they’re still allowed to marry someone of the opposite sex. If you think it’s heritable on the other hand, you’re far more likely to conclude that there is an equal protection violation and that the state needs a particularly compelling reason to overcome the violation. These opinions, of course, are going to be heavily influenced by experience – how many gay couples do you know, what are your religious views, etc.
It’s easy to see how these sorts of experiences can play into a judge’s interpretation of facts, meanings, and relevance, and I think it’s simply wrong to think that having a broader diversity of experiences on a given bench does anything but improve judicial decisionmaking on average.
UPDATE: Rod Dreher, who was initially upset with Sotomayor’s “Latina woman” comment, takes a look at the quote in its full context and changes his mind. The whole post is Dreher at his best.