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“A Latina Judge’s Voice”

Speech context: “For the race, everything. Outside the race, nothing.” — La Raza

The following is the text of a speech by appeals court judge SoniaSotomayor published in the Spring 2002 issue of La Raza Law Journal.Sotomayor is a member of the Council of La Raza, according to herAmerican Bar Association bio.

By Sonia Sotomayor

Judge Reynoso, thank you for that lovely introduction. I am humbled tobe speaking behind a man who has contributed so much to the Hispaniccommunity. I am also grateful to have such kind words said about me.

I am delighted to be here. It is nice to escape my hometown for just alittle bit. It is also nice to say hello to old friends who are in theaudience, to rekindle contact with old acquaintances and to make newfriends among those of you in the audience. It is particularly heartwarming to me to be attending a conference to which I was invited by aLatina law school friend, Rachel Moran, who is now an accomplished andwidely respected legal scholar. I warn Latinos in this room: Latinasare making a lot of progress in the old-boy network.I am also deeply honored to have beenasked to deliver the annual Judge Mario G. Olmos lecture. I am joininga remarkable group of prior speakers who have given this lecture. Ihope what I speak about today continues to promote the legacy of thatman whose commitment to public service and abiding dedication topromoting equality and justice for all people inspired this memoriallecture and the conference that will follow. I thank Judge Olmos’ widowMary Louise’s family, her son and the judge’s many friends for hostingme. And for the privilege you have bestowed on me in honoring thememory of a very special person. If I and the many people of thisconference can accomplish a fraction of what Judge Olmos did in hisshort but extraordinary life we and our respective communities will beinfinitely better.

I intend tonight to touch upon the themes that this conference will bediscussing this weekend and to talk to you about my Latina identity,where it came from, and the influence I perceive it has on my presenceon the bench.

Who am I? I am a “Newyorkrican.” For those of you on the West Coast whodo not know what that term means: I am a born and bred New Yorker ofPuerto Rican-born parents who came to the states during World War II.

Like many other immigrants to this great land, my parents came becauseof poverty and to attempt to find and secure a better life forthemselves and the family that they hoped to have. They largelysucceeded. For that, my brother and I are very grateful. The story ofthat success is what made me and what makes me the Latina that I am.The Latina side of my identity was forged and closely nurtured by myfamily through our shared experiences and traditions.

For me, a very special part of my being Latina is the mucho platos dearroz, gandoles y pernir – rice, beans and pork – that I have eaten atcountless family holidays and special events. My Latina identity alsoincludes, because of my particularly adventurous taste buds, morcilla,– pig intestines, patitas de cerdo con garbanzo — pigs’ feet withbeans, and la lengua y orejas de cuchifrito, pigs’ tongue and ears. Ibet the Mexican-Americans in this room are thinking that Puerto Ricanshave unusual food tastes. Some of us, like me, do. Part of my Latinaidentity is the sound of merengue at all our family parties and theheart wrenching Spanish love songs that we enjoy. It is the memory ofSaturday afternoon at the movies with my aunt and cousins watchingCantinflas, who is not Puerto Rican, but who was an icon Spanishcomedian on par with Abbot and Costello of my generation. My Latinasoul was nourished as I visited and played at my grandmother’s housewith my cousins and extended family. They were my friends as I grew up.Being a Latina child was watching the adults playing dominos onSaturday night and us kids playing loteria, bingo, with my grandmothercalling out the numbers which we marked on our cards with chick peas.

Now, does any one of these things make me a Latina? Obviously notbecause each of our Carribean and Latin American communities has theirown unique food and different traditions at the holidays. I onlylearned about tacos in college from my Mexican-American roommate. Beinga Latina in America also does not mean speaking Spanish. I happen tospeak it fairly well. But my brother, only three years younger, liketoo many of us educated here, barely speaks it. Most of us born andbred here, speak it very poorly.

If I had pursued my career in my undergraduate history major, I wouldlikely provide you with a very academic description of what being aLatino or Latina means. For example, I could define Latinos as thosepeoples and cultures populated or colonized by Spain who maintained oradopted Spanish or Spanish Creole as their language of communication.You can tell that I have been very well educated. That antisepticdescription however, does not really explain the appeal of morcilla -pig’s intestine – to an American born child. It does not provide anadequate explanation of why individuals like us, many of whom are bornin this completely different American culture, still identify sostrongly with those communities in which our parents were born andraised.

America has a deeply confused image of itself that is in perpetualtension. We are a nation that takes pride in our ethnic diversity,recognizing its importance in shaping our society and in addingrichness to its existence. Yet, we simultaneously insist that we canand must function and live in a race and color-blind way that ignorethese very differences that in other contexts we laud. That tensionbetween “the melting pot and the salad bowl” — a recently popularmetaphor used to described New York’s diversity – is being hotlydebated today in national discussions about affirmative action. Many ofus struggle with this tension and attempt to maintain and promote ourcultural and ethnic identities in a society that is often ambivalentabout how to deal with its differences. In this time of great debate wemust remember that it is not political struggles that create a Latinoor Latina identity. I became a Latina by the way I love and the way Ilive my life. My family showed me by their example how wonderful andvibrant life is and how wonderful and magical it is to have a Latinasoul. They taught me to love being a Puerto Riqueña and to love Americaand value its lesson that great things could be achieved if one workshard for it. But achieving success here is no easy accomplishment forLatinos or Latinas, and although that struggle did not and does notcreate a Latina identity, it does inspire how I live my life.

I was born in the year 1954. That year was the fateful year in whichBrown v. Board of Education was decided. When I was eight, in 1961, thefirst Latino, the wonderful Judge Reynaldo Garza, was appointed to thefederal bench, an event we are celebrating at this conference. When Ifinished law school in 1979, there were no women judges on the SupremeCourt or on the highest court of my home state, New York. There wasthen only one Afro-American Supreme Court Justice and then and now noLatino or Latina justices on our highest court. Now in the last twentyplus years of my professional life, I have seen a quantum leap in therepresentation of women and Latinos in the legal profession andparticularly in the judiciary. In addition to the appointment of thefirst female United States Attorney General, Janet Reno, we have seenthe appointment of two female justices to the Supreme Court and twofemale justices to the New York Court of Appeals, the highest court ofmy home state. One of those judges is the Chief Judge and the other isa Puerto Riqueña, like I am. As of today, women sit on the highestcourts of almost all of the states and of the territories, includingPuerto Rico. One Supreme Court, that of Minnesota, had a majority ofwomen justices for a period of time.

As of September 1, 2001, the federal judiciary consisting of Supreme,Circuit and District Court Judges was about 22% women. In 1992, nearlyten years ago, when I was first appointed a District Court Judge, thepercentage of women in the total federal judiciary was only 13%. Now,the growth of Latino representation is somewhat less favorable. As oftoday we have, as I noted earlier, no Supreme Court justices, and wehave only 10 out of 147 active Circuit Court judges and 30 out of 587active district court judges. Those numbers are grossly below ourproportion of the population. As recently as 1965, however, the federalbench had only three women serving and only one Latino judge. Sochanges are happening, although in some areas, very slowly. Thesefigures and appointments are heartwarming. Nevertheless, much stillremains to happen.

Let us not forget that between the appointments of Justice Sandra DayO’Connor in 1981 and Justice Ginsburg in 1992, eleven years passed.Similarly, between Justice Kaye’s initial appointment as an AssociateJudge to the New York Court of Appeals in 1983, and Justice Ciparick’sappointment in 1993, ten years elapsed. Almost nine years later, we arewaiting for a third appointment of a woman to both the Supreme Courtand the New York Court of Appeals and of a second minority, male orfemale, preferably Hispanic, to the Supreme Court. In 1992 when Ijoined the bench, there were still two out of 13 circuit courts andabout 53 out of 92 district courts in which no women sat. At thebeginning of September of 2001, there are women sitting in all 13circuit courts. The First, Fifth, Eighth and Federal Circuits each haveonly one female judge, however, out of a combined total number of 48judges. There are still nearly 37 district courts with no women judgesat all. For women of color the statistics are more sobering. As ofSeptember 20, 1998, of the then 195 circuit court judges only two wereAfrican-American women and two Hispanic women. Of the 641 districtcourt judges only twelve were African-American women and elevenHispanic women. African-American women comprise only 1.56% of thefederal judiciary and Hispanic-American women comprise only 1%. NoAfrican-American, male or female, sits today on the Fourth or Federalcircuits. And no Hispanics, male or female, sit on the Fourth, Sixth,Seventh, Eighth, District of Columbia or Federal Circuits.

Sort of shocking, isn’t it? This is the year 2002. We have a long wayto go. Unfortunately, there are some very deep storm warnings we mustkeep in mind. In at least the last five years the majority of nominatedjudges the Senate delayed more than one year before confirming or neverconfirming were women or minorities. I need not remind this audiencethat Judge Paez of your home Circuit, the Ninth Circuit, has had thedubious distinction of having had his confirmation delayed the longestin Senate history. These figures demonstrate that there is a real andcontinuing need for Latino and Latina organizations and communitygroups throughout the country to exist and to continue their efforts ofpromoting women and men of all colors in their pursuit for equality inthe judicial system.

This weekend’s conference, illustrated by its name, is bound to examineissues that I hope will identify the efforts and solutions that willassist our communities. The focus of my speech tonight, however, is notabout the struggle to get us where we are and where we need to go butinstead to discuss with you what it all will mean to have more womenand people of color on the bench. The statistics I have been talkingabout provide a base from which to discuss a question which one of myformer colleagues on the Southern District bench, Judge MiriamCederbaum, raised when speaking about women on the federal bench. Herquestion was: What do the history and statistics mean? In her speech,Judge Cederbaum expressed her belief that the number of women and bydirect inference people of color on the bench, was still statisticallyinsignificant and that therefore we could not draw valid scientificconclusions from the acts of so few people over such a short period oftime. Yet, we do have women and people of color in more significantnumbers on the bench and no one can or should ignore pondering whatthat will mean or not mean in the development of the law. Now, I cannotand do not claim this issue as personally my own. In recent years therehas been an explosion of research and writing in this area. On one ofthe panels tomorrow, you will hear the Latino perspective in thisdebate.

For those of you interested in the gender perspective on this issue, Icommend to you a wonderful compilation of articles published on thesubject in Vol. 77 of the Judicature, the Journal of the AmericanJudicature Society of November-December 1993. It is on Westlaw/Lexisand I assume the students and academics in this room can find it.

Now Judge Cedarbaum expresses concern with any analysis of women andpresumably again people of color on the bench, which begins andpresumably ends with the conclusion that women or minorities aredifferent from men generally. She sees danger in presuming that judgingshould be gender or anything else based. She rightly points out thatthe perception of the differences between men and women is what led tomany paternalistic laws and to the denial to women of the right to votebecause we were described then “as not capable of reasoning or thinkinglogically” but instead of “acting intuitively.” I am quoting adjectivesthat were bandied around famously during the suffragettes’ movement.

While recognizing the potential effect of individual experiences onperception, Judge Cedarbaum nevertheless believes that judges musttranscend their personal sympathies and prejudices and aspire toachieve a greater degree of fairness and integrity based on the reasonof law. Although I agree with and attempt to work toward JudgeCedarbaum’s aspiration, I wonder whether achieving that goal ispossible in all or even in most cases. And I wonder whether by ignoringour differences as women or men of color we do a disservice both to thelaw and society. Whatever the reasons why we may have differentperspectives, either as some theorists suggest because of our culturalexperiences or as others postulate because we have basic differences inlogic and reasoning, are in many respects a small part of a largerpractical question we as women and minority judges in society ingeneral must address. I accept the thesis of a law school classmate,Professor Steven Carter of Yale Law School, in his affirmative actionbook that in any group of human beings there is a diversity of opinionbecause there is both a diversity of experiences and of thought. Thus,as noted by another Yale Law School Professor — I did graduate fromthere and I am not really biased except that they seem to be doing alot of writing in that area – Professor Judith Resnik says that thereis not a single voice of feminism, not a feminist approach but many whoare exploring the possible ways of being that are distinct from thosestructured in a world dominated by the power and words of men. Thus,feminist theories of judging are in the midst of creation and are notand perhaps will never aspire to be as solidified as the establishedlegal doctrines of judging can sometimes appear to be.

That same point can be made with respect to people of color. No oneperson, judge or nominee will speak in a female or people of colorvoice. I need not remind you that Justice Clarence Thomas represents apart but not the whole of African-American thought on many subjects.Yet, because I accept the proposition that, as Judge Resnik describesit, “to judge is an exercise of power” and because as, another formerlaw 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 acceptthat our experiences as women and people of color affect our decisions.The aspiration to impartiality is just that–it’s an aspiration becauseit denies the fact that we are by our experiences making differentchoices than others. Not all women or people of color, in all or somecircumstances or indeed in any particular case or circumstance butenough people of color in enough cases, will make a difference in theprocess of judging. The Minnesota Supreme Court has given an example ofthis. As reported by Judge Patricia Wald formerly of the D.C. CircuitCourt, three women on the Minnesota Court with two men dissentingagreed to grant a protective order against a father’s visitation rightswhen the father abused his child. The Judicature Journal has at leasttwo excellent studies on how women on the courts of appeal and statesupreme courts have tended to vote more often than their malecounterpart to uphold women’s claims in sex discrimination cases andcriminal defendants’ claims in search and seizure cases. As recognizedby legal scholars, whatever the reason, not one woman or person ofcolor in any one position but as a group we will have an effect on thedevelopment of the law and on judging.

In our private conversations, Judge Cedarbaum has pointed out to methat seminal decisions in race and sex discrimination cases have comefrom Supreme Courts composed exclusively of white males. I agree thatthis is significant but I also choose to emphasize that the people whoargued those cases before the Supreme Court which changed the legallandscape ultimately were largely people of color and women. I recallthat Justice Thurgood Marshall, Judge Connie Baker Motley, the firstblack woman appointed to the federal bench, and others of the NAACPargued Brown v. Board of Education. Similarly, Justice Ginsburg, withother women attorneys, was instrumental in advocating and convincingthe Court that equality of work required equality in terms andconditions of employment.

Whether born from experience or inherent physiological or culturaldifferences, a possibility I abhor less or discount less than mycolleague Judge Cedarbaum, our gender and national origins may and willmake a difference in our judging. Justice O’Connor has often been citedas saying that a wise old man and wise old woman will reach the sameconclusion in deciding cases. I am not so sure Justice O’Connor is theauthor of that line since Professor Resnik attributes that line toSupreme Court Justice Coyle. I am also not so sure that I agree withthe statement. First, as Professor Martha Minnow has noted, there cannever be a universal definition of wise. Second, I would hope that awise Latina woman with the richness of her experiences would more oftenthan not reach a better conclusion than a white male who hasn’t livedthat life.

Let us not forget that wise men like Oliver Wendell Holmes and JusticeCardozo voted on cases which upheld both sex and race discrimination inour society. Until 1972, no Supreme Court case ever upheld the claim ofa woman in a gender discrimination case. I, like Professor Carter,believe that we should not be so myopic as to believe that others ofdifferent experiences or backgrounds are incapable of understanding thevalues and needs of people from a different group. Many are so capable.As Judge Cedarbaum pointed out to me, nine white men on the SupremeCourt in the past have done so on many occasions and on many issuesincluding Brown.

However, to understand takes time and effort, something that not allpeople are willing to give. For others, their experiences limit theirability to understand the experiences of others. Other simply do notcare. Hence, one must accept the proposition that a difference therewill be by the presence of women and people of color on the bench.Personal experiences affect the facts that judges choose to see. Myhope is that I will take the good from my experiences and extrapolatethem further into areas with which I am unfamiliar. I simply do notknow exactly what that difference will be in my judging. But I acceptthere will be some based on my gender and my Latina heritage.

I also hope that by raising the question today of what differencehaving more Latinos and Latinas on the bench will make will start yourown evaluation. For people of color and women lawyers, what does andshould being an ethnic minority mean in your lawyering? For menlawyers, what areas in your experiences and attitudes do you need towork on to make you capable of reaching those great moments ofenlightenment which other men in different circumstances have been ableto reach. For all of us, how do change the facts that in every taskforce study of gender and race bias in the courts, women and people ofcolor, lawyers and judges alike, report in significantly higherpercentages than white men that their gender and race has shaped theircareers, from hiring, retention to promotion and that a statisticallysignificant number of women and minority lawyers and judges, bothalike, have experienced bias in the courtroom?

Each day on the bench I learn something new about the judicial processand about being a professional Latina woman in a world that sometimeslooks at me with suspicion. I am reminded each day that I renderdecisions that affect people concretely and that I owe them constantand complete vigilance in checking my assumptions, presumptions andperspectives and ensuring that to the extent that my limited abilitiesand capabilities permit me, that I reevaluate them and change ascircumstances and cases before me requires. I can and do aspire to begreater than the sum total of my experiences but I accept mylimitations. I willingly accept that we who judge must not deny thedifferences resulting from experience and heritage but attempt, as theSupreme Court suggests, continuously to judge when those opinions,sympathies and prejudices are appropriate.

There is always a danger embedded in relative morality, but sincejudging is a series of choices that we must make, that I am forced tomake, I hope that I can make them by informing myself on the questionsI must not avoid asking and continuously pondering. We, I mean all ofus in this room, must continue individually and in voices united inorganizations that have supported this conference, to think about thesequestions and to figure out how we go about creating the opportunityfor there to be more women and people of color on the bench so we canfinally have statistically significant numbers to measure thedifferences we will and are making.

I am delighted to have been here tonight and extend once again mydeepest gratitude to all of you for listening and letting me share myreflections on being a Latina voice on the bench. Thank you.  

2009-05-27

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