What is Fair Game for the Sotomayor Hearings?
	By VIKRAM DAVID AMAR
	Friday, June 19, 2009

As preparation for Judge Sonia Sotomayor's Senate hearings begins in earnest, it is important for us all to think carefully about what legitimate and meaningful questioning by the Senate should look and sound like. In this column, I offer some observations on what should be considered fair game, and what should not.

Clearly Fair Game: Sotomayor's Substantive Legal Views and Judicial Temperament

Most fundamentally, the examination should home in on Judge Sotomayor's substantive legal views on issues of the day. That means asking her detailed and pointed questions about the hundreds of opinions and articles she has written. It also means, more importantly, asking her detailed and pointed questions about the many vexing legal and constitutional issues of the day about which she may not yet have written or spoken directly.

Judge Sotomayor should not be allowed to evade or deflect these substantive questions, but neither should she be expected to have formed detailed views about each and every one of the many matters she did not have to confront as a lower court judge (since lower court judges are bound by existing Supreme Court precedent and have no discretion to ignore or overrule it). Being fair also means that Judge Sotomayor should be given the chance -- and the obligation -- to reflect and respond in writing to the Senate to the important substantive questions about which she has not yet thought carefully enough about to be able to answer in person, in a few minutes, under the glare of the TV cameras. "I'll get back to you" can sometimes be an acceptable answer -- and in many situations may be the wisest answer.

Another fair ground for questioning is Judge Sotomayor's judicial temperament. She should be asked about particular instances or examples in which she has been accused of being intemperate or intolerant of the lawyers who appear before her. I must say myself that I haven't seen descriptions of many specific examples of problematic judicial demeanor (but rather just generic charges of bad behavior), but if such specific examples exist, they should be explored.

Yet being fair also means that Judge Sotomayor should not be held to a higher standard of grace on the bench than that which has been applied to many other towering jurists -- such as former Chief Justice Rehnquist and Justice Scalia -- who have often been quite direct and sometimes caustic in their questioning of oral advocates.

Being fair means, as well, that anonymous allegations by lawyers against Judge Sotomayor concerning unspecified acts of rudeness or petulance should be given far less weight than any particularized examples. There could be many reasons why particular lawyers might complain about a judge, and without specificity in the allegations of rudeness, it is impossible for Judge Sotomayor to meaningfully explain her side of the story. This is the danger of a "smear campaign": Generalized, anonymous allegations are extremely difficult to respond to persuasively even when they are outright false.

Judge Sotomayor's Controversial Comments: Part of the Challenge Has Been Correct; Part of It Has Been Very Off-Base

Perhaps the most controversial things Judge Sotomayor has said have not been stated in the courtroom, but rather in other settings in which Judge Sotomayor been a speaker. These too are fair game to explore, but a fair exploration requires attention to context, nuance, and the precise grounds for legitimate criticism.

In particular, Judge Sotomayor has been chided by many for the following statement she made in 2001 at a conference in Berkeley: "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."

I think there is no justification for using the word "better" in this sentence. Judge Sotomayor and her supporters (of whom I am one) should admit not just that the sentence was poorly worded, but that, as written, it is completely indefensible and should be discarded from our national conversation on race. It is fair to directly challenge her wording and ask her to disavow the use of the word "better."

But it is not fair to challenge an underlying point that Judge Sotomayor was likely making, and that she has made in much clearer terms at many other times in her speeches - namely, that a jurist's race, ethnicity, geography, socioeconomic track record, and other factors all shape her experience and thus the perspective she brings to the task of judicial interpretation of the law. It is this underlying point that many conservatives think is wrong and reflects an overly politicized view of the judge in America.

But this critique -- that Judge Sotomayor's view that demographics do shape judges' attitudes and decisions is outside the mainstream -- is completely unfounded. In fact, Judge Sotomayor's insight here is largely accepted in modern constitutional discourse. Then-judge Alito said essentially the same thing in his confirmation hearings for the high Court when he observed that discrimination cases in front of him often call to his mind the experiences of members of his Italian-American family who had been victimized by unfair sterotypes and prejudices.

And the Supreme Court as a whole has, in more than one context, also said essentially the same thing - though the point has at times also divided the Justices. For instance, in upholding the University of Michigan's narrowly-tailored consideration of the race of some of its applicants to law school in 2003, the Court affirmed the notion that two law students with otherwise similar backgrounds may very well bring different experiences and perspectives into the classroom on account of their being from different racial communities.

In a similar vein, in its cases implementing the Sixth Amendment requirement that juries in America be drawn from a "representative cross section" of society, the Court has explained that although no single person speaks for the female community or the Asian community etc., it is still the case that having people of different demographic backgrounds affects and enhances the deliberations that groups of 12 (or groups of nine, as in the case of the Supreme Court) undertake.

The Court's observation in one famous case involving the need for women on juries is apposite:

"It is said, however, that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men-- personality, background, economic status--and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. . . . The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded."

Thus, even though we do not know exactly what observations or insights might be missing when we lack demographic diversity, we have Supreme Court precedent - something for which conservatives profess reverence - making clear that the absence of multiple "flavors" makes the intellectual feast less satisfying.

Nor is there anything inherently cynical about this observation. Many "colorblind" conservatives confuse perspective with prejudice; to say that a person of a certain race, gender or class might, based on experience as a member of certain groups, bring a new set of insights to a discussion is not to say that each of us is locked into a racial or gender bloc such that we are incapable of understanding the needs, interests, and viewpoints of other people. Other factors besides demographic ones undeniably influence our modes of interpretation; race and gender are simply two of the many relevant factors (which include things like where one was educated, what political party one grew up with, what jobs one has had, as well as simply how one's analytic mind works).

At the end of the day, if I were to be so presumptuous as to suggest a friendly amendment to Judge Sotomayor's Berkeley statement quoted above, I would do so along the following lines: "I would expect that a wise Latina woman with the richness of her experiences would quite often reach a different initial conclusion than a white male who hasn't lived that life, and having both perspectives in any discussion is better than having either one in isolation."

To be sure, not everyone would agree even with my modified version (and maybe a majority of the current Court would find fault with a legal system that formally recognizes the influence of demographics), but that very disagreement should be the basis of a spirited discussion in the Senate from which the American people might benefit greatly.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.