A diverse U.S. Supreme Court? Definitely, say two of the women who served on Minnesota’s highest court

Sen. Jeff Sessions, Judge Sonia Sotomayor
REUTERS/Jonathan Ernst
U.S. Supreme Court nominee Judge Sonia Sotomayor met Tuesday with Sen. Jeff Sessions, R-Ala, a ranking member of the Senate Judiciary Committee.

Former Minnesota Supreme Court Chief Justice Kathleen Blatz had an intriguing thought about the U.S. Supreme Court.

“Can you envision a court of nine women? Or nine African-Americans?” she wondered aloud.  There would be nothing wrong with it, but there would be a lot of people asking, ‘How did that happen?’ ”

Given the tumult and the shouting over President Obama’s nomination of Sonia Sotomayor, even the idea that there someday might be three women, two Hispanics and one African-American or (gasp!) two on the same court is hard to imagine.

But Blatz, who is of moderate Republican roots, suspects that despite the bombast from some, most Americans understand that diversity on the court is not just a good thing but that it’s necessary.  The issue, she said, isn’t so much about how judges will interpret law. Judges do try to shed their societal roles and backgrounds when they step into any courtroom at any level.

“None of us walks into a courtroom as an empty slate,” said Blatz, a former legislator and trial court judge before she was named to the state’s Supreme Court in 1996 by Gov. Arne Carlson. “What a judge needs to do is to set aside, as much as possible, those experiences and follow the law.”

Public perception a big issue, too
But even if judges — a panel of nine white men, or five women and four African-American men — could separate themselves from race and gender, there is a huge issue of perception. 

“To have the confidence of the people, institutions have to look like the people,” she said. “I’d love to live long enough to see our institutions represent the people.”

Justice Kathleen Blatz
Justice Kathleen Blatz

In her view, then, there’s nothing wrong with a president — or a governor — making race and gender an important aspect of considering potential justices.

“I reject out of hand there aren’t qualified people of all backgrounds capable of being on the court.”

In her own case, Blatz said, she can’t recall an instance where her gender may have made a difference in her decision-making. And, as a former legislator, she recalls being offended when one of the men in the body would come to her and ask, “What are the women going to do on this bill?”

“It’s dehumanizing to suggest that all women think alike,” she said. And equally wrong-headed to suggest that a white male “can’t get it” when considering cases that have special impact on women or minorities.

Still, she said, given the huge pool of qualified people, diversity can’t help but help make the court stronger. 

Not so long ago, such thinking would have been considered radical. 

Rosalie Wahl appointment a state breakthrough
In 1977, Gov. Rudy Perpich named Rosalie Wahl the first female member of the Minnesota Supreme Court.

Wahl was a perfect choice. At age 38, she had enrolled at the William Mitchell College of Law. She explained that decision years later: “I was tired of sitting outside the door waiting for men to make the decisions.”

Before his days as governor were over, Perpich had named three more women to the court, making Minnesota’s the first court in the country to have women as a majority on the bench. (Since those days, that number has slipped to two women on the seven-member court.)

Though Wahl recalls that “there was some noise” about a woman being on the court, her male colleagues accepted her without question, she said. And she believes that nothing outwardly changed when the court became majority female.

“Part of the reason for that is that the men had strong wives,” she said, laughing. “They were well trained.”

Wahl, 85, said she can’t recall that she ever consciously applied her gender to a case, yet believes gender had to have affected her judgment.

“Even if you’re totally fair,” she said, “you don’t completely understand how you reach a decision. My gender was part of who I am.”

Judge Rosalie Wahl, circa 1978
Judge Rosalie Wahl, circa 1978

And it took a woman, Wahl, to spearhead a long-overdue study of how women were being treated in the state’s courts. The two-year study, completed in 1989, was called the Minnesota Supreme Court Task Force for Gender Fairness in the Courts.  The findings, though carefully worded, were stunning. Women, from victims of rape or domestic abuse to female attorneys, often were treated with little respect.

In court, white male judges frequently referred to female attorneys with words like “dear” while calling male attorneys “Mr.” or “sir.”

In settling divorce cases, those old white male judges didn’t seem to understand that a female often had far less earning power than a man.

The study led to change. Perhaps those changes would have happened without a woman on the Supreme Court.  But the fact is, they didn’t happen until then.

Two years later, Wahl headed the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System. The results were at least as damning as the findings of the Gender Fairness study.

A substantial percentage of judges and public defenders said that prosecutors were more likely to file charges when a victim was white. Women of color who were crime victims had awful experiences in the system because of “insensitive and inadequate service at every stage,” the report said. People of color were arrested, jailed, imprisoned in numbers vastly disproportionate to the population. Jury pools didn’t represent the racial composition of communities. And after pages of such stuff there was this: “People of color generally don’t trust the criminal justice system.”

Wahl said those studies were a long time ago and she can only hope that they created at least some systemic change. 

But change, she said several times in a conversation Monday, comes very slowly. She’s sadly surprised that if Sotomayor is confirmed, she’ll be only the third woman ever to be a Supreme Court justice.

“I know change is slow, but I didn’t think it would be this slow,” she said. “The court needs a big view. We need a diverse court.”

So, why all the anger at Sotomayor?
A court as diverse as the people. A court where ideas come from all sorts of backgrounds. So why does there  seem to be so much of the anger — in at least some segments of  the population — over the nomination of a pull-herself-up-by-the-bootstraps, Ivy-League-educated Hispanic woman?

Susanne Jones is a professor at the University of Minnesota’s department of communication studies. She has been observing the reaction to the nomination of Sotomayer closely.

Part of the tumult over Sotomayor is the efforts of the party in the minority to hold onto a bit of control. If Democrats were in the spot the Republicans are in, some of their members would be acting the same, she believes.

Susanne Jones
University of Minnesota
Professor Susanne Jones

“It boils down to a human need to control our environment,” she said. “What conservatives are doing is trying to hold onto some control. They do that by predicting how they think she’ll act. That’s not possible to do but they try. They pick morsels from her past to predict how they think she’ll behave in the future.”

In this case, there are very few morsels, so the Gingrich-Limbaugh-Rove forces have embraced the one quasi-controversial morsel they could find in Sotomayor’s background, her comment, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who has lived that life.” (As MinnPost’s David Brauer pointed out, some in the media, are dropping the last five words of that quotation.)

In the eyes of a few, that one morsel out of a long career should disqualify Sotomayor. 

“You cannot predict the future behavior of a person based on morsels,” said Jones. “In fact, when we look at her total background, the one thing we’ve seen is she’s not predictable. She seems to have no agenda.” 

Jones believes that in addition to grasping for control, Sotomayor’s critics fear her gender more than her race.  Studies show, Jones said, that the culture attaches labels to people in this order: 1, gender; 2, race; and 3, occupation.

But what makes Sotomayor all the more perplexing to her critics, who clearly feel threatened, is that she has been shaped in ways far different from most of those who have preceded her on the Supreme Court.

“How we are raised defines how we interpret ourselves in public and make sense of information,” said Jones. “So, there’s no doubt that a person who grew up in an impoverished neighborhood and a Hispanic household, who lost a parent at age 9 and who went to a rigorous Catholic school, interprets certain issues, such as gay marriage, differently than a person who grew up in Sleepy Eye, largely sheltered from the dramas of life.”

None of this means we can predict what Sotomayor’s role someday would be on the Supreme Court. But already she’s had a big impact on our culture. 

“That she’s causing waves is good,” said Jones.  “We want those waves.”

In time, waves can help wash away doubts and fears.

Doug Grow writes about public affairs, state politics and other topics. He can be reached at dgrow [at] minnpost [dot] com.

Comments (8)

  1. Submitted by Ann Spencer on 06/03/2009 - 10:08 am.

    What strikes me in the debate over Sonia Sotomayor is the unspoken assumption by those criticizing her that white male judges are not affected in their decision-making by their own backgrounds and experiences. The underlying premise is that white male judges occupy an Olympian perspective and make decisions based on an objective, detached and dispassionate application of universal principles. By contrast, women and minorities on the bench will be unable (or unwilling) to see beyond the narrow interests of their own groups. If you think about it, this is obviously untrue. We are all the product of a complex mix of genetics, experience and culture that affects the way we see the world, white guys included. Furthermore, there is a vast difference in life experiences within these groups. It’s reductive and insulting to suggest that Sonia Sotomayor represents the views of all Latinos, or, for that matter, that John Roberts stands in for all white males.

    I believe that, with very few exceptions, judges sincerely try to put aside personal biases in their decision-making, but it’s impossible to do so completely. Nor is it desirable. The meting out of justice is above all a human endeavor in which human beings make judgments about situations involving other human beings. We may strive for a government of laws, not of men, but without the human touch, we might as well feed the facts and the law into a computer and wait for the printout. The justice system will never be perfect, but the greater the diversity of backgrounds and perspectives of members of the bench, the better and fairer the results for all.

  2. Submitted by Thomas Swift on 06/03/2009 - 11:40 am.

    “It’s reductive and insulting to suggest that Sonia Sotomayor represents the views of all Latinos, or, for that matter, that John Roberts stands in for all white males.”

    The left is trying to use smoke and mirrors to deflect the proper questioning of Sotomayer’s opinion that gender and race are primary factors in developing, and applying intellect.

    I’m sorry, but it’s not going to fly. John Roberts never suggested that he was posessed of superior wisdom because of his race or gender…Sotomayer did.

    She is going to have to explain that written, stated opinion, and she is going to have to explain the recent decision she handed down that upheld the application of racial bias in promotions.

    If the left has suddenly decided to embrace the notion that racism is an inherent and indelible part of American society, so be it. But it is incumbent on them to explain, and defend how that worldview meshes with their stated belief that Martin Luther King had it right.

    Hypocrisy is an explanation, but not a defense.

  3. Submitted by Bernice Vetsch on 06/03/2009 - 01:41 pm.

    Thomas: Judge Sotomayor’s remarks about “a wise Latina woman” were taken out of context, which was that all judges have to be aware of, and careful of, how their own life experiences can affect their decisions if they are not careful.

    If the current court had four women on it, would it still have voted to OKAY a school principal’s strip-searching of a little girl to see if she was hiding ADVIL in her underpants? Any woman and probably most men would have been more sensitive to that little girl’s feelings of humiliation and shame and would have ruled in her favor.

    The eight men on the court obviously were guided by their LEARNED law-and-order strictly-by-the-book every-drug-is-a-gateway-drug approach to decision making instead of some desperately needed empathy for the victim of a like-minded school official.

  4. Submitted by Thomas Swift on 06/03/2009 - 02:33 pm.

    “Judge Sotomayor’s remarks about “a wise Latina woman” were taken out of context, which was that all judges have to be aware of, and careful of, how their own life experiences can affect their decisions if they are not careful.”

    Poppycock. Judge Sotomayer never comes close to suggesting anything of the sort. In fact, if you read the speech in its entirety, you see that the offending paragraph is the summation of the stage she was setting up throughout the previous paragraphs.

    “The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss with you what it all will mean to have more women and people of color on the bench.”

    “Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.”

    “…I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

    “The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”

    “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.”

    Judge Sotomayer is saying, clearly and distinctly, not only that we can expect her decisions to be guided by her race and her gender, but that she believes her race and gender make her decisions inherently superior.

    That is the precise definition of a racist. If that is acceptable to todays leftists, at least have the strength of character to stand by “your” positions.

  5. Submitted by Gail O'Hare on 06/03/2009 - 02:34 pm.

    Thank you, Ann and Bernice.
    Anyone who reviews the testimony of Roberts, Alito and Thomas will see how they relied on personal experience to demostrate their depth of perception and humanity. When conservatives got Thomas he was the token dream, an Oreo to make the right wing burble with satisfaction. Alito was eloquent on the topic of his Italian immigrant parents. Conservatives have fallen all over themselves rhapsodizing about how touched they were, how the promise on the Statue of Liberty was emblazoned on the faces of these nominees…

    These male nominees. These Catholic men. I was raised Catholic, and my only concern about Sotomayor is whether she adds to the undeniable bias of religious training we have allowed to monopolize the Supreme Court.

  6. Submitted by Henry Wolff on 06/03/2009 - 03:10 pm.

    Diversity is fine unless you mean Janice Rogers Brown or Miguel Estrada.

  7. Submitted by William Pappas on 06/03/2009 - 08:34 pm.

    Mr. Swift, would you consider Minnesota Justice Alan Page racist because his experience has been colored by his race. He brings up the fact that he has been stopped for a DWB (Driving While Black) while none of the other justices have. That certainly gives him a different perspective in all sorts of cases. Conversely Chief Justice Robers comes from a position of white male power and his rulings, more than any other justice, reflect his privlaged background. Sotomayor will only add depth, perspective and balance to the court despite your paranoid, attempts to cry reverse racism. She is not racist. She is Hispanic and does not deny her background. That would be dishonest. In fact Sotomayor has behaved more like a conservative justice than anything else.

  8. Submitted by Thomas Swift on 06/04/2009 - 10:56 am.

    “would you consider Minnesota Justice Alan Page racist…”

    Has he suggested that his race makes him a superior decision maker? No? Well, get back to me on that when he does.

    “Conversely Chief Justice Robers comes from a position of white male power and his rulings, more than any other justice, reflect his privlaged background.”

    You mean a background that includes private elementary and high schools, followed by a tour of the nations most prestegious universities, which he parlayed into a lucrative career with a high buck law firm, followed up by a lifetime gig on the bench?

    “Sotomayor will only add depth, perspective and balance to the court.”

    Erm, right.

    Be…cause her background includes includes private elementary and high schools, followed by a tour of the nations most prestegious universities, which she parlayed into a lucrative career with a high buck law firm, followed up by a lifetime gig on the bench.

    Or is it because she’s not “an oreo”?

    Pathetic. No, really.

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