re: #312 Occasional Reader

When, exactly, are a judge’s prejudices “appropriate”, in rendering a decision in a case?

Sotomayor is asserting that they can be.

Do you agree?

OK, I’m back.

No, I don’t think it is appropriate to render a decision based on one’s prejudices. It sounds like she said it is. That speech has some hard-to-read passages, and I’d hate to pin her to what she said at UC Berkeley in 2001 in one speech, but I’m still trying to figure it out. This passage:

The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father’s visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women’s claims in sex discrimination cases and criminal defendants’ claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

might be what she is referring to when she said, “I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests [meaning the Minnesota Supreme Court?], continuously to judge when those opinions, sympathies and prejudices are appropriate.”

The sentence that precedes the above passage is this: “Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.” That’s one of those hard to parse parts. I think overall, she’s acknowledging that one’s gender and heritage affect one’s point of view, and that it shouldn’t affect one’s judgment, but we should admit that it can and or does. Another quote, same speech:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

Anyway, I didn’t want it to look like I ran out because the questions got hard.