In Sotomayor nomination aftermath, some debate over value of diversity

Issue February 2010 By Roberta Holland

The controversy over Supreme Court Justice Sonia Sotomayor's nomination last summer raised the question of what role, if any, a judge's background should play in forming decisions.

While many hailed the appointment of the first Hispanic Supreme Court justice, a comment Sotomayor made during a 2001 speech had some critics questioning whether her ethnic background would lead to bias. In a play off a past gender-based comparison, Sotomayor told attendees of a Berkeley conference that she hoped "a wise Latina woman" would more often than not come to a better decision than a white male without that life experience.

Robert J. Roughsedge, a partner with Lawson & Weitzen in Boston, said he didn't believe Sotomayor's judicial record showed a pattern of bias. But he found her comment troubling nonetheless.

"I didn't fault her for that completely because I see that as just having pride in her heritage," Roughsedge said. "But if you put the shoe on the other foot, if some white guy said that, he'd look pretty bad."

Ethnicity shouldn't matter for Supreme Court justices, Roughsedge said. The Court's decisions should be based on the law and the facts presented, and judges should be dispassionate.

Daniel J. Kelly, a partner with McCarter & English LLP in Boston and chairman of the Boston lawyers division of the Federalist Society, said having a diverse bench or justices who climbed out of poverty is a great thing because it serves as an example to groups who have felt disenfranchised.

A black or Latina justice can be "a wonderful and shining example and I'm all for it," Kelly said. "But I think that's where it stops in terms of the importance of diversity. I do not think we need a diverse Supreme Court because members of different races or different cultural backgrounds are better judges or can bring a different perspective to the way in which cases are judged. They should not be doing that."

Especially on the appellate level where the factual record is already decided, "your cultural background should have no influence whatsoever in terms of how you apply the law," Kelly said.

But advocates for increasing judicial diversity argue that representing different backgrounds is essential to serving all citizens, and that diversity does not equal bias. It's a debate that could resurface if another Supreme Court seat opens soon, as some anticipate, and the issue could trickle down to state courts.

Charles P. Kindregan, a professor at Suffolk University Law School, said a judge's background can be relevant, but other factors matter more.

"What is more important is a person's professionalism, competence, education, knowledge and willingness to adhere to the law as it has evolved whenever an issue comes up that has already been largely decided by the court in the past," Kindregan said. "Judging is really an art; it's not a science."

Others said you cannot separate a judge from his or her background, ethnic or otherwise.

"To say that justice is blind, we still haven't reached that at this point," said Damon P. Hart, a partner with Holland & Knight in Boston and past president of the Massachusetts Black Lawyers Association. "Everybody brings their own framework and context to the bench, and I think cultural considerations, racial considerations, how they've experienced their life in America, it's impossible for that to not be part of their analysis."

Hart was unsure whether a judge's background should play a role, but he said it often does. "Especially given the history of the way justice has been mishandled for non-white people in this country since its inception, it's kind of hard to say that it doesn't have an impact," Hart said. "It most certainly does."

James C. Donnelly Jr., co-chairman of the MBA's Judicial Administration Section, also dismissed the possibility that judges aren't influenced by background. "There is not a single person in the country that doesn't carry personal experiences with them every day," said Donnelly, a partner with Mirick, O'Connell, DeMallie & Lougee LLP in Worcester. "Judges do, jurors do, lawyers do, senators, presidents, everybody does. It's a matter of how you use that experience to enrich yourself and do the job better. Do you think for a moment Chief Justice Roberts doesn't bring his personal experiences? It's just that to some people, he looks more 'normal' than Justice Sotomayor."

Regardless of the role ethnic background plays in informing decisions, many believe diversity is a goal worth striving for in the judiciary.

"It is tremendously important, indeed fundamental, to have a bench that reflects the community, and that means very obviously a diverse bench with all segments of the community represented," said Carolyn B. Lamm, president of the American Bar Association. "It doesn't mean you have to compromise on competence. There are many lawyers who could ascend to the bench and ensure that we indeed have a bench that reflects the community."

Diversity in the judiciary is fundamental both to the perception and reality of access to justice, Lamm said. She praised the gains that have been made by President Obama and other presidents before him, but noted that there is a long way to go. She cited the need for more women, an Asian-American and other minorities to join the Court.

"There are many people who are underrepresented on that bench," Lamm said.

Massachusetts may be ahead of the curve in terms of diversity, a fact Kindregan believes is due in part to the appointive system. Massachusetts courts today at every level "enjoy a great deal of gender and racial diversity. I think that as our population changes, that's going to increase. It has to. You can't have a system where people are excluded from participation."

Hart said gains have been made, particularly for women, but there is still a struggle to increase the numbers of judges of color. Part of the problem is a pipeline issue, he said.

"Even with an African-American governor and a Judicial Nominating Committee that's sensitive to the issue, they still can't just wave a wand and all of a sudden stuff the pipeline with tons of attorneys that are ready, willing and able to become judges that happen to be diverse," Hart said.

The huge pay gap, with starting lawyers at major firms making the same as top-tier judges, is a recruiting issue for anyone, not just minorities, Hart said. Another universal issue is the fact that many lawyers are in court less than previous decades, making it harder to gain the requisite trial experience for the bench.

Ethnic diversity isn't the only type needed on the bench, many believe.

Lamm, a partner with White and Case in Washington, argues for diversity in terms of professional background as well. "Clearly you can't have all judges and academics in that position. Practicing lawyers bring a practical reality and a pragmatic sense of the law that needs to be reflected in decision-making," Lamm said.

Lamm and others said practicing lawyers are more cognizant of the real-world effects and costs to litigants.

"The problem with the diversity conversation in this country is that it's always based on race, and it's not," Roughsedge added. "I grew up in Boston. I have more in common with black kids in Boston than I do with white kids in the suburbs."

For the country's democracy to keep evolving, it must keep looking for new points of view, especially as the population changes, Donnelly said. He said the issue isn't about nominating the perfect American or the average American.

"What I would hope that not only this president but every future president does is to look for people that will enrich the chemistry of the Court," Donnelly said. "Just like in any other form of chemistry, good things come from mixing different ingredients. If you just mix the same ingredient, what do you get? Nothing."