There is a theory that the best decisions are made by consulting a diverse group of people. Democracy is based on that principal. So, three points:

a) Under this theory, if the Supreme Court was exclusively made up of white men, it would make worse decisions than if it had a white man, a black man, a Hispanic woman, and so on.

b) There is an abundance of white men in judicial positions, and a scarcity of Hispanic females.

c) Given that scarce resources are prized more than those in abundance - a basic economic fact - then Sotomayor is right to claim that her opinions are more valuable than those of a white man.

Somehow, though, I doubt she'll make this argument at confirmation hearings...

Confirmation hearings are one thing -- she already sailed through two of those. Politics is another thing altogether. There is no doubt that she will be seated on the Supreme Court. The Democrats don't want the Republicans to accept that and move on. The more the GOP attacks Sotomayor, the more damage they do to their political brand. Why would the Democrats want them to stop shooting themselves in the foot?

Given your logic, she should be disqualified as we already have overrepresentation by Catholics on the court.

GreenwichJ:

There is a theory that the best decisions are made by consulting a diverse group of people. Democracy is based on that principal. So, three points:

a) Under this theory, if the Supreme Court was exclusively made up of white men, it would make worse decisions than if it had a white man, a black man, a Hispanic woman, and so on.

b) There is an abundance of white men in judicial positions, and a scarcity of Hispanic females.

c) Given that scarce resources are prized more than those in abundance - a basic economic fact - then Sotomayor is right to claim that her opinions are more valuable than those of a white man.

Somehow, though, I doubt she'll make this argument at confirmation hearings...

I agree with your position but I don't agree that it was what she said. What she said was that a woman will reach a better decision than a man more often than not, by better she meant caring and compasionate. She didn't say that a more diverse court leads to better decisions, although I agree it does. It would be difficult to make that argument at her confimation hearing. Had she meant what you propose she would have said exactly that.

GreenwichJ:

There is a theory that the best decisions are made by consulting a diverse group of people. Democracy is based on that principal. So, three points:

a) Under this theory, if the Supreme Court was exclusively made up of white men, it would make worse decisions than if it had a white man, a black man, a Hispanic woman, and so on.

But why should that be the case? The law is the law. It should be interpreted without recourse to bias or prejudice, which is exactly what parsing it through the prism of personal experience amounts to.

GreenwichJ:

c) Given that scarce resources are prized more than those in abundance - a basic economic fact - then Sotomayor is right to claim that her opinions are more valuable than those of a white man.

The only resource that should matter is the Constitution, and intellect, deep legal understanding and, as far as possible, political and social neutrality the only abilities that should be deemed attractive or neceassary in those who seek to interpret it.

That being said however, the whole thing is being blown out of all proportion. It's exeedingly unlikely that a Justice Sotomayor will start handing down judgements that are biased by her own experiences, or towards those of similar background. If that were to happen, it would indeed be a travesty of jurisprudence, but the likelihood is remote indeed. Still though, you can't blame the Republicans for trying I s'pose.

Oh, come on.

If the meaning of the law was self-evident, you wouldn't need a supreme court. You wouldn't even need judges - a computer could decide all criminal and civil cases.

It is precisely because there exists significant ambiguity - in any system of laws - that judges are required. How one interprets this ambiguity says more about the person doing the interpretation than it does about anything on the statute books.

However, as Torkel points out above, this isn't exactly what Sotomayor said.

I agree with you, but I would add that how an individual interprets the ambiguity in the law also reflects cultural evolution. After all, our courts no longer uphold the practice of slavery nor the burning of witches.

It is the prospect of cultural evolution being expressed through individual judges that strikes fear into the hearts of many traditionalists.

The law is a human institution. Otherwise, as you said, it wouldn't require human interpretation.

Well, I offer as a comparison the situation that Einhard and I have on this side of the pond: the Law Lords.

These men (almost all of them) bubble up through the murky corridors of British jurisprudence and are one of the least diverse institutions in our country. Hale's a woman and Neuberger's a Jew, but beyond that they are all from rich families and were all educated at Oxford and Cambridge. I'm not sure that this is a great situation, especially given the waning public confidence in our democracy.

I agree that best decision are often made when a diverse group use thier collective skills and experiences to solve a problem. Two points however:

1. Hearing appellate cases is a much narrower type of problem solving than in other realms and there exist clear mechanisms for reaching solution e.g. the plain language of the Constitution and statutes as well as common law and case law. Therefore diversity is less valuable than a comittment to the law and competence.

2. Even were diversity the most important factor, which as I stated in1. is not the case here, it would still require that all come to the problem free from an outcome bias. Using collective experiences is helpful when all parties have an open mind and are willing to accept that their experiences may not be the best ones to sway the outcome. I dont believe ms. Sotomayer would be that type of jurist. Her statements suggest that she believes her experiences make her a better decision maker than her white counterparts on the Court so how can she approach cases any other way,

I am shocked that my fellow dems do not see the hypocrisy in putting someone who has made these types of statements onto the highest court in the land. When the next repub wants to put a white guy on who thinks white men are smarter than blacks or hispanics are we gonna say "no prob" he probably meant to say it a lot nicer or did not mean it the way we all took it....I hope not. Isnt it time we put that whole generation of "us vs. them" out to pasture? Sotomayer is a dinasour from a period that we should not be proud of.

Our system was not designed to have un-elected judges construe ambiguous legislation or worse yet legislation. In fact there is, in constitutional law, what is known as unconstitutional ambiguous. This means that if the legislature passes laws that are ambiguous the court should strike them down and have Congress take another shot at writing something clearer. That...not emotion or empathy is how statutes which are unclear are supposed to be dealt with in our system.

I suppose that you didn't catch the fact that your statement is self-contradictory.

There are several flaws in your arguments. I would suggest a civics course.

First, the phrase "consulting a diverse group of people" has absolutely no meaning. Diversity of what? Given points a) through c), it seems your "theory" (it sounds more like a multi-culturalist dispute resolution mantra tought to kindergardeners) relies solely on diversity of skin color, rather than diversity of thought. Surely, a sound "theory" on diversity's role in decion making would rely on the latter. Otherwise, I trust you have no problem whatsoever with the decisions of Justice Thomas.

Second, the United States is not a democracy; it is a representative republic. Representative republics are equipped with governing institutions. Some of these are representative, some are not. Courts are not a representative body. Thus, courts are not meant to reflect the race, religion, color, or creed of the general population.

Finally, liberal opinions are quite abundant, much to the detriment of the country as a whole. What makes Judge Sotomayor's liberal opinion different from any other is solely the fact that she is Latina. Again, your "theory" focuses on the wrong kind of diversity. And, something tells me that if you trully understood economic theory, you would not be a liberal.

Judge Sotomayor's "theory" - as you call it - has nothing to do with absolute representation. She very clearly said "I WOULD HOPE THAT" - actually in both speeches. She is saying that her experience as a woman of her generation facing sexism and of her ethnicity facing racism SHOULD - NOT WILL -be more sensitive, compassionate, insightful, and responsive. She should - NOT WILL - be interested in the effect the law has on individuals who face significant obstacles, and that she SHOULD, but will not necessarily, be able to understand beyond the narrow parameters of her own experience. She suggests then that white men, generally with more privilege and often fewer obstacles, especially if they are of her generation and passed through law school and the judiciary, might - NOT WILL - have less ability to understand beyond the narrow parameters of their experience. In a sense, she is saying, "what use are my experiences as a woman and latina and the challenges I have faced if I cannot learn from them."

But she does not say this will happen, even in her own case. "I would hope that.."

In short, she is hoping for just what the President wanted... empathy. Not Republican empathy, which they define as overly emotional and feeling. But true empathy - the ability to understand beyond your own experiences and connect with the lives and experiences of others, to understand their troubles and joys, but not to feel them as your own. Empathy, in Sotomayor's terms and not the Republican's, is a function of reason and logic derived from experience, just as experience is the foundation of logic in the natural and social sciences.

Poli Sci Prof:

Judge Sotomayor's "theory" - as you call it - has nothing to do with absolute representation. She very clearly said "I WOULD HOPE THAT" - actually in both speeches. She is saying that her experience as a woman of her generation facing sexism and of her ethnicity facing racism SHOULD - NOT WILL -be more sensitive, compassionate, insightful, and responsive. She should - NOT WILL - be interested in the effect the law has on individuals who face significant obstacles, and that she SHOULD, but will not necessarily, be able to understand beyond the narrow parameters of her own experience. She suggests then that white men, generally with more privilege and often fewer obstacles, especially if they are of her generation and passed through law school and the judiciary, might - NOT WILL - have less ability to understand beyond the narrow parameters of their experience. In a sense, she is saying, "what use are my experiences as a woman and latina and the challenges I have faced if I cannot learn from them."

But she does not say this will happen, even in her own case. "I would hope that.."

In short, she is hoping for just what the President wanted... empathy. Not Republican empathy, which they define as overly emotional and feeling. But true empathy - the ability to understand beyond your own experiences and connect with the lives and experiences of others, to understand their troubles and joys, but not to feel them as your own. Empathy, in Sotomayor's terms and not the Republican's, is a function of reason and logic derived from experience, just as experience is the foundation of logic in the natural and social sciences.

You make some really good points. I hope that is what she was saying. I would like to hear it from her; she should be given the opportunity to clarify those remarks at her confirmation hearings.

Professor Simon Baron Cohen of the University of Cambridge (Borat's cousin, but let's leave that aside) has published a body of work showing that men and women analyse the world in very different ways.

Men systematise, women empathise.

The historical dominance of men in institutions has led to a received wisdom that the male-type analysis produces the best results, and that female analysis is just silly women's stuff that has nothing to do with "proper justice".

Maselaw will doubtless call me a pant-wetting Haight Ashbury synesthesiac, but some kind of synthesis of the two perspectives would doubtless improve the application of law, IMHO.