When President Obama announced the nomination of Sonia Sotomayor to the U. S. Supreme Court last month he extolled her many qualifications to sit on the highest court in the land. She was educated at two of the best universities in the country (Princeton as an undergraduate; Yale for law school). She has practiced law in a variety of settings in both the public and private sectors. And she currently has more experience sitting on the federal bench than any current justice did when he or she joined the Supreme Court. Impressive credentials indeed. But, seemingly of equal importance to the President, and also in the ongoing debate about her qualifications, is that she is female, Hispanic, and has a life story that includes overcoming many types of difficulties.
Now the question: For the job of Associate Justice of the U.S. Supreme Court - why should any of the qualities mentioned in that last sentence matter?
What is the job of the judge on an appellate court? An obvious answer is: to understand the law and apply it to the facts of the case at hand. Given that objective statement of the task, why should personal characteristics be relevant?
One reason, of course, is symbolic. It may be important to show the American people, or the world, that the U.S. values its diversity of citizenry in interpreting its laws. When Ronald Reagan nominated Sandra Day O'Connor to the Supreme Court in 1981, the cover of one of the major news magazines showed an elegant picture of her with the caption "Justice - At Last". (Someday I will write about how I hated that caption.) Relatedly, research shows that people show more respect for laws that they believe have been made fairly and that their "group" has had a say in making.
But so much for symbolic reasons to have the Jewish, Catholic, African-American, female, and now, perhaps, Hispanic "seats" on the court. Why should it matter to the content of the cases?
The view that ALL appellate judges do is apply law to the facts of the case at hand (and then write an opinion expressing how it was done) represents one end on a continuum of beliefs about what judges do. On the other end of the continuum is a view (most commonly associated with a movement called "American Legal Realism") that what appellate judges do is look at the case, decide what they want the outcome to be, and THEN look for justifications (e.g., in previous opinions or other relevant authorities like the Constitution, statutes, or legislative history).
According to this view, judges choose what to follow and what to ignore in order to justify the outcome they prefer in a particular case. The preference could be one of policy, or ideology, or a belief about what would be fair in that case. If that is, in fact, what judges do, then certainly personal characteristics would be relevant to what a judge would prefer the outcome to be.
It turns out, however, that probably neither extreme view is correct. People, including judges, do not have to deliberately try to contort the law in order for different minds, with different backgrounds, knowledge, and beliefs, to come to different conclusions. There are a lot of important and vague terms that need interpretation including: "equal protection", "due process", "unreasonable search and seizure", "cruel and unusual punishment". Take as a "simple" example the language of the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Does this mean that people have an unfettered right to bear arms, or that the right is limited because it is only in service of having a necessary militia? No matter which side you come down on, you have to admit that the language alone is not clear.
Appellate courts very often deal with such indeterminacies in language. And, of course, such indeterminacies in language often occur in cases in which values collide. Should the government be able to take the home of a citizen through its power of eminent domain for purposes of economic development? (Kelo v City of New London.) The Fifth Amendment says that private property shall not "be taken for public use, without just compensation". Typically, governments use land taken by eminent domain for projects for the public good such as reservoirs and railroad lines. But what is "public use"? And what is "just compensation" for the small home that has been in your family for generations?
Note that whatever goes for appellate courts generally goes especially for the U. S. Supreme Court. Think for a second, how many cases per year would you guess the Supreme Court hears? 100? 200? In fact, over the last few years, the Supreme Court has averaged around 70 cases per year. And, of course, the cases that the Court decides are not a random selection of cases. The Court, itself, chooses them from among about 9000 cases per year that it is asked to review. One typical and important criterion for selection is that the various Federal Circuit Courts around the country have divided on the presented case and similar cases in the past. And even when the reason for agreeing to hear a case is not a so-called "circuit split", almost all the other cases are ones in which technically respectable legal arguments can be made on both sides. Thus, these are cases that are not clear, not easy, and not representative.
In fact, they might be exactly those cases in which different background and experiences matter - without any malicious intent at all.
