some questions for “a Latina Judge”

Judge Sonia Motomayor, Barack Obama’s choice for the Supreme Court, is really an amazing piece of work. Matthew Franck has more from the speech she gave in which she declared that a wise latina will generally make better judicial decisions than a white male. He also has some questions.

published as “A Latina Judge’s Voice,” 13 Berkeley La Raza Law Journal 87 (2002). These lines are from the last of its seven pages:

I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. . . .

These remarks, prompt some questions, such as: What exactly do you think are those occasions when your “sympathies and prejudices are appropriate” in reaching a decision? And when did the Supreme Court “suggest” that there would be such occasions in the exercise of the judicial function? Why do you think that judging is a “series of choices” that you “must make” rather than a series of discernments of those choices that the law has already made? What have you learned in your study or practice of law and judging that makes you believe that judging is an exercise in “morality”? Is there a role for moral discretion for the judge interpreting the Constitution or a statute—the principal business of federal appellate judging? What would that role be? And while it’s refreshing that you recognize the “danger embedded in relative morality,” yet you appear to embrace it nonetheless as inevitable for a judge; so what do you mean by “relative morality”? It sounds like “relativism,” or the notion that morality is inherently subjective, to be guided by the passions rather than reason. It’s a dubious business to assign to judges the role of moralizers or moral philosophers in the first place; isn’t it infinitely worse to suppose they are to be, not moral reasoners, but moral emotionalists?

emphasis added.

my previous post has a video where she admits frankly that interemediate appellate judges “make policy.” The quote above shows that she is perfectly willing to admit that, at least in some instances, she believes that making that policy involves an “appropriate” use of her own “opinions, sympathies and prejudices.”

I mean really what can you say? It is just amazing to me that she feels no need to obfuscate the fact that she believes judges make policy and use their own biases and prejudices to do so. She feels that she can come right out and say it without euphemism or cloaking of any kind.

I wonder if she will be able to do anything toward building coalitions on the Court. If she feels that she should just nakedly assert her own prejudice in decision making, then it might be difficult to persuade other justices to join her in such a project given that they may have different biases and prejudices that they feel should be indulged at the expense of the rule of law.

It will be an interesting and tragic thing to watch over the next 25 to 30 years. Just wow. Remember always that elections have consequences and this is one of them.

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