The statute of Lady Justice traditionally holds a set of scales in one hand, a book of law in the other, and she is blindfolded. The sightless nature of justice has forever meant that before the law all persons are on an equal footing. The inalienable rights given by the Creator puts us all on a level playing field, so that no matter whether we are rich or poor, majority or minority status in ethnicity, political group, sex, or national origin we will all be treated justly.
Can Sonia Sotomayor, President Obama’s nominee to the Supreme Court of the United States, do this? From her own words there is a lot of doubt. In a 2001 lecture she said:
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.
What? Did you hear that? Lady Justice, supposedly blind, should generally reach the same predictable result no matter who sits on the bench. Not for Sotomayor. She knows better. So greater than 50% of the time, because of her sex and ethnic background, she would decide a case differently than a white male justice. Why? So out of 100 average lawsuits, her ethnic background and sex will be so important that she cannot help but reach a different verdict.
This flies in the face of the President’s introduction this week, when he said:
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.
There will be no equal justice under the law for Sotomayor, only pity for people with whom she feels her heart tug. But if pity were the rule of law, pretty soon there would be no rule of law left. Our courts would revolve around whichever client had the hardest life, the least advantage, the closest emotional pull with the judge. She will rule based on her sense of “fair,” not on justice.
Just a brief look at “fairness” and “justice” from the eyes of a parent will bring this home. My children have remarked on many occasions that it is not “fair” for them to do a certain chore or to pick up a mess they didn’t make. I reply that life isn’t supposed to be fair. They whine a bit and try to get me moved by pity and emotion. But is it fair that children really don’t contribute to the household until they can do chores, say about age 6? No. But that’s life, which does not always “seem” emotionally fair. Only when they can do chores the justice begins to be realized.
And a poor background doesn’t necessarily mean that a judge should govern this way. Clarence Thomas came from a more economically impoverished background than any other sitting justice. Surely, if Sotomayor had someone who could relate, it would be him, right? No. Because Justice Thomas’ s legal philosophy is one of limited government and more individual rights–that the legislature, not the court, creates social policy. Sotomayor disagrees. At a speech at Duke University she admitted that appellate courts, in her view, create social policy.
So suppose a 20-year old Latina woman, with a very poor background, is on trial for murder, caught with the “smoking gun” in her hand. On appeal, will that background make a difference to Sotomayor, or will she apply the rule of law just as if it were a 20-year old white trust-fund male who had every opportunity in the world? What type of policy will she make? Poor people are less guilty? Minorities are less guilty?
Lady Justice would not even notice the ethnicity or sex of the Latina woman in the example above; she would only see the appeal as a decision of legal rules based on one person murdering the other–because she can’t break the timeless principles of equal justice based on ethnicity or poverty; she is blindfolded. Sotomayor, on the other hand, will be peeking.
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