A Jury, Not A Judge Of Your Peers
Much is being made by both the left and the right about a comment made by Judge Sotomayor that would imply racism. The right says it is, the left says it isn't when taken in context, and Conservative commentators miss the point again.The quote in question is as follows.
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
While the statement is racist, it is more importantly ignorant. And yes, I am aware that the Judge was speaking of discrimination cases in particular. I am also aware that a member of a class who has experienced legitimate discrimination would likely have more experiences to draw on related to the subject.But I am, more importantly aware of the fact that all of this is irrelevant to a judge. Ironically, so is Judge Sotomayor. In the link to the quote above, another of the Judges quotes is exposed. It follows.
This month, for example, a video surfaced of Judge Sotomayor asserting in 2005 that a “court of appeals is where policy is made.” She then immediately adds: “And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.”
You see, a judge does not make law. They simply apply existing law to the trial and ensure that it is being followed. They interpret the law, rather than making it. Let me take a moment to explain this. A judge does not determine guilt or innocence, a jury does. What the judge does is determine how the law applies and how it will be enforced. A prosecutor determines when a law has been broken, and brings a case to the judge. The judge then interprets the law by determining first of all if the law that the prosecutor references applies to the case. The judge uses existing laws to determine if evidence collected is admissible, if jurors meet legal requirements, and if the accused has proper representation. Throughout the trial, the judge must observe the entire trial and guarantee that it fits within the scope of the law. If a lawyer uses a method of questioning that is out of line with the law, the judge must stop it based on law, not the Judges personal preference. A judge references law to determine if witnesses will be allowed, and under what conditions.
In an appellate court, a judge's job is somewhat different, yet it is still interpreting law. When a case is appealed, the lawyer must state a complaint with the processes followed by the judge hearing the case. He may question the jurisdiction of the court itself, or the legality of the proceedings. The appellate judge will then determine not if he or she feels the jury made a good decision, but rather if the first judge was correct in his interpretation of the law.
Here is where the trouble begins with the statements made by Judge Sotomayor. Her statement was first ignorant because it implies that somehow the laws are dependent on the gender or race of the one reading the law. One's ethnic background cannot change the law, hence the experiences of one who is a member of a given ethnic group are of no relevance to the law. Her statement is also racist based on her admission that she is aware that a judge does not make law. Follow me here. Were she just ignorant of the process, and of the belief that a judge does make law, then her statement is not racist because it simply states that her gender and ethnic background would give her insight when making those laws that one of another race and gender would not have. Her second statement defines what "reach(ing) a conclusion" in her first statement means. Reaching a conclusion means applying existing law, not making new law. Hence, her statement is that Hispanic women would be better able to understand and apply the law than white men would. And that is racist.