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Is Sotomayor Neutral?

Posted By Deborah O'Malley On July 17, 2009 @ 9:42 am In Legal | Comments Disabled

Senator John Cornyn asked Judge Sotomayor to comment on a less famous yet still controversial statement that she made in her now infamous Wise Latina speech, in which she stated that there is no “objective stance” or “neutrality” in judging. Her explanation failed the most fundamental of Senate hearing tests—the laugh test.

She explained she was simply stating that a judge must eventually make a choice in every case to side with one litigant or the other. In the end, a judge cannot be neutral to the parties: “You’re going to rule in someone’s favor. You’re going to rule against someone’s favor. That’s the perspective of the lack of neutrality. It’s that you can’t just throw up your hands and say, ‘I’m not going to rule.’”

First, no one disputes that a judge must eventually come to a conclusion in a case. This isn’t exactly a novel idea, and certainly not worth spelling out in a speech to law students. Of course a judge isn’t “neutral” when he issues a decision. The question is whether judges can be neutral in the process of making a decision. Sotomayor’s speech makes clear that her answer is, “no”:

Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states ‘there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,’ I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.

Rather than wringing her hands about ultimately reaching a judgment as she claimed before the Senate, Sotomayor’s speech makes the broad and repugnant claim that judges are incapable of being impartial, neutral, or objective in the process of judging because they do—and according to her, they should—take into account their own personal experiences: a flat-out rejection of the basic American concept of blind justice.


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