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My Turn by Elisa Dozono

From The Asian Reporter, V19, #25 (June 30, 2009), page 6 & 7.

Can you imagine a job where a lack of experience was preferred? Let’s see … Doctor wanted: top 10 percent of med school class preferred, minimum six years’ residency; anyone with personal health problems need not apply.

Why then should we judge any differently whether Judge Sonia Sotomayor of the Second Circuit Court of Appeals should be elevated to the U.S. Supreme Court? Since when did experience become antithetical to objectivity?

Judge Sotomayor grew up in housing projects in the South Bronx. She worked both as a government lawyer in the district attorney’s office prosecuting street crimes and in the private sector as a general business litigator, resolving commercial disputes on everything from real estate to unfair competition, frequently for international corporations. In this sense her diverse experience is good, many say. She has experienced life in the projects as the daughter of a single mom, and life in the Ivy Leagues. She understands both the public and private sector, both criminal and corporate law.

But her diverse background is criticized in the one aspect over which she has absolutely no control: her heritage. Judge Sotomayor is a self-proclaimed "Newyorkrican," a "born and bred" New Yorker whose parents immigrated from Puerto Rico during World War II.

In 2002, Judge Sotomayor dared to suggest that her identity as a Latina, her family’s shared experiences and traditions, her love of morcilla and merengue, her ability to speak Spanish, all provided her with a diversity of life experiences that may make her see things differently than a Caucasian judge. Judge Sotomayor noted:

"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. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging."

In continuing to distinguish the difference race and gender may make, Judge Sotomayor said that while there is no "universal definition of wise," she hoped 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."

Conservatives pounced, decrying her statements as "reverse racism" and "new racism."

But like my hypothetical doctor ad, should we decline medical care from a doctor who knows from personal experience that one drug reacts better for persons with a certain history? Why then would we reject the opinion of a jurist who might understand the frustration faced by those who do not natively speak English, when facing a jury of their "peers" who are all native speakers? How is someone who has ate, slept, and breathed the law, but never seen its impact on the real world preferable to someone who has actually seen the imperfection of laws and the sometimes unintended unjust results?

In our system of justice, when lawyers question a "jury of our peers," they look for any hint of bias. Have you ever sued someone? Nix from defense counsel, because you may be more sympathetic to plaintiffs. Have you worked as a corporate executive? Nix from plaintiff because you’re obviously biased toward business.

Yet the truth is we are all colored by our experiences. Conservative Supreme Court Justice Samuel Alito has even noted he thinks of his own children when hearing a case about children. Is that wrong? Could some who decry Judge Sotomayor’s ascent be speaking with the bitterness of a person who had friends, family, or even themselves, lost a promotion to a minority and felt it was unfair?

Recently, I heard a late-night radio host talking about "how to know when someone is lying." He said one telltale sign was if a person didn’t look directly at you when answering. In a panic, my thoughts automatically went to me and my own family members who frequently look up when thinking hard about an answer, literally searching the remote corners of our minds. I thought of some Japanese natives I recently represented, and the struggles that even I, a person who minored in Japanese, had conversing with them.

What if I was in court and the judge didn’t know that in many cultures, direct eye contact is considered rude or aggressive? What if the judge got frustrated and cut my questioning short because she couldn’t understand my client’s answers?

For this reason, diversity of ethnicity matters just as much as diversity of experience. A judge like Sonia Sotomayor, who may have had to have more patience understanding a first-generation parent or grandparent’s broken English, might give my Japanese-speaking clients more time to explain. We understand communications nuances and the importance of trying harder.

In the coming weeks, the U.S. Senate will consider making Judge Sotomayor the first Hispanic on our nation’s highest court, and only the third woman and only the third minority in its history. Minorities everywhere should seize this opportunity to celebrate their heritage and celebrate the nation that was built on the backs of our immigrant forefathers.

Whether we are Latina, African American, Vietnamese, or Irish, we share the common bond of a people who were once "huddled masses yearning to be free." In that, our diversity is our commonality, and our judicial system will be better for it. The country should be so lucky to have a person of such supreme experience as Sonia Sotomayor.