When Sonia Sotomayor ascends those marble steps to assume her seat on the highest court of the land, America will have taken another important step towards realizing the ideal that is etched above its entrance: Equal justice under the law.
Judge Sotomayor’s nomination was bound to (re)generate debate on the plausible influence of race/gender on the Bench. Her legal scholarship and judicial eminence has come under intense scrutiny, and the legal fraternity is divided on her future course of action in the US Supreme Court. Some would say that Sotomayor is an activist who might set her own agenda (Wendy E. Long, counsel to the Judicial Confirmation Network, a conservative group). Others might argue that she is a powerful embodiment of the rule of law at a time when the nation’s faith in the legal machinery in diminishing (Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, NYU School of Law).
The more important aspect that arises from Sotomayor’s nomination is whether such criteria should influence a judge’s perception while being the adjudicator of disputes (or arbiter of policy issues). I’d say that examining the sub-liminal impact of a judge’s background on his/her verdicts is a quasi-sociological exercise; which is why it is imperative to understand the conscious role of criteria such as race, gender, colour, political affiliation etc. If the nomination is made (and it is, no doubt), keeping such factors in mind, why shouldn’t the judge so nominated respond in such fashion?
On this issue, we got two young legal brains from the academia and the Bar to express their views
- Alok Prasanna, currently pursuing his BCL Course at the University of Oxford.
- Mihira Sood, who’s joined the Bar and is litigating at the Delhi High Court.
From Alok:
We know little of how Supreme Court judges in India are selected and vetted by their peers who “recommend” their appointment to the President. Contrast this with the very public discussion and debate in the USA over the candidates, their positions on hot-button issues, “empathy”, the race-gender issue, among other things. And this is only the beginning. The confirmation process will no doubt thrown up a more searching examination of Sonia Sotomayor’s judicial record and legal scholarship. Her confirmation may come down to partisan politics but these issues will be nonetheless raised and pored over in great detail.
Is it too much to expect the Supreme Court of India to engage us, the wider legal fraternity and lay citizens alike, in such a debate? But discussing the issue of birth and gender can only take place once we are assured of the integrity and intellect of the candidates for the post of Justice of the Supreme Court of India. A good judge not only possesses a clear understanding of the law, but also unimpeachable personal integrity. A litigant approaches the Court with the expectation that justice will be done impartially and according to the law.
I would love to be able to say that both these standards have not been compromised in all the 60 years of the history of the Supreme Court of India. However much the Supreme Court tries to paint the problem as one of “black sheep”, I fear the correct metaphor is “a turd in the water”. You can take it out, but that doesn’t make the water fit to drink.
Questioning whether life experiences should influence judicial opinions can only take place once we are assured that they’re not being influenced by material considerations.
But should life experiences inform a judge’s opinions on the matters of law and State? It may be a question that is relevant only in a very limited setting. Where the law is clear and the precedent straightforward, it is a judge’s duty to apply the law and decide the matter accordingly. But the law is not always so clear in all instances, and in such cases, in order to arrive at something approximating a correct answer, the judge is required to apply, well, his or her good judgment. Good judgment is not found in books, pithy quotes or in law review articles. It is something that is the product of long life experience, understanding people and institutions, and in that way, whether we like it or not, life experiences do inform a judge’s opinions on such matters. Having a court with diverse life experiences probably means that multiple, differing viewpoints can be expressed and debated, and maybe reflected in the judgment.
Yet, it is wrong for a judge to see everything (or at least all such things we are concerned with for the moment) from the viewpoint of one’s own life-experience. A good judge should be able to see another’s point of view and examine one’s own beliefs with a critical eye. Without this, I think, judges end up posturing and ramming their opinions down the throats of the unconvinced simply because they can.
So to conclude, yes, a judges’ life experiences do influence their positions on those matters where the law is not very clear and it is possible to (legally) validly choose one of two courses of action. Judges are humans, and not automatons, and it is folly to expect them to erase every trace of their past in making decisions for the future. Rather, what we want as desirable qualities in a judge at the highest level, go beyond just being able to make decisions based on one’s experiences. We want honest and legally competent judges who are capable of seeing another’s point of view and accounting for this in a reasoned and coherent manner in the decisions they make. It’s probably a lot to ask for, but it is the least we can expect from a Justice of the Supreme Court.
Mihira says: -
I think the idea behind keeping such factors in mind while nominating a judge is not really for race/gender etc. to influence the outcome of a case – such an understanding is to my view, narrow and undesirable.
The idea is – or should be – for the diversity of one’s experiences and exposure to contribute to a better and more inclusive understanding of a case, of society – of, for example, the effects of a particular policy or law, or even in disputes/offences, the effect of a certain kind of verdict.
The law is meant to be upheld, not moulded to suit a case. I guess what I’m trying to say is that a judge is often left with space on how it is to be upheld. And within that space, a more inclusive view can find a better and more effective way to uphold the law and deliver real justice relevant to its context.
It need not even be limited to judgments directly. A very small example – certain issues might occur to a judge during arguments and s/he can ask counsel to address them. I would assume that a judge with slightly different or varied experiences could bring more to that process and those experiences could directly contribute to the nature of issues being addressed, and later while considering the case as a whole.
So in a nutshell, what I mean is that factors such as race/gender are very important to one’s experiences and understanding, and diversity of race/gender on the bench obviously then means that there is a wider range of experiences that inform the way the SC looks at a case; which makes the process inclusive and is eminently desirable. But that does not mean that such considerations should directly alter the outcome of a case.
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Well, there you have it. As an aside, for a scathing attack on the nominee’s credentials to the post, here’s Richard Epstein on The Sotomayor Nomination.
