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.”
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.”
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.
“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.