Senator Jon Kyl, Republican of Arizona, the other one, is certainly a master of the blah blah blah. Here's a helpful summation:
Kyl: Judge, isn't it true that you think having more women and minority judges in America is...gasp...a good thing? How dare you!
Ya know, after the nation watches these hearings, they might logically conclude that having more women and minorities in the SENATE would be an improvement. I know I do.
Full transcript of Kyl's "question" (?) below the fold.
KYL: Thank you for that. Applying some commonality with his view of the law in judging, it's a concept I also disagree with, but in this respect, it is the speeches that you have given, and some of the writings that you have engaged in have raised questions. Because they appear to fit into what the President has described as this group of cases in which the legal process or the law simply doesn't give you the answer. And it's in that context that people have read these speeches and concluded that you believe that gender and ethnicity are an appropriate way for judges to make decisions in cases. Now, that's my characterization.
I want to go back to -- I read your speeches and I read all of them. The one I happened to mark up here was the Seton Hall speech but it was identical to the one at Berkeley. You said this morning that the point of your speeches was to inspire young people. And I think that there's some in your speeches that certainly is inspiring and, in fact, it's more than that. I commend you on several of the things that you talked about, including your own background as a way of inspiring young people. Whether they're a minority or not, regardless of their gender. You said some inspirational things to them. In [?] the cases your purpose was to discuss a different issue.
In fact, let me put it in your words. You said "I intend to talk to you about my Latina identity, where it came from and gender, race, and national orientation representation will have on the development of the law." And then after some preliminary and sometimes inspirational comments, you jumped back to the theme and said "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 what it will mean to have more women and people of color on the bench." You said no one can or should ignore asking or pondering what it will mean or not mean in the development of the law. You talked -- you cited some people who had a different point of view than yours. You said I accept the proposition as Professor Resnick explains, "to judge is an exercise of power and there is no objective stance, but only a series of perspectives. No neutrality, no escape from choice in judging," you said. "I further accept that our experiences as women and people of color will in some way affect our decisions."
Now, you're deep into the argument here. You've agreed with Resnick there is no objective stance, only a series of perspectives, no neutrality, which just as an aside is relativism run amuck. But then you say, what the professor's quote means to me is not all women or people of color or in all circumstances, but enough women and people of color in enough cases will make a difference in the process of judging. You're talking here about different outcomes in cases. And you go on to substantiate your case by first of all citing a Minnesota case in which three women judges ruled differently than two male judges in a father's visitation case. You cited two excellent studies, which tended to demonstrate differences between women and men in makes decisions in cases. You said, "as recognized by legal scholars, whatever the cause is, not one woman or person of color in any one position, but as a group we will have an affect on the development of law and on judging."
So you develop the theme, you substantiated it with some evidence to substantiate your point of view. Up to that point, you had simply made the case, I think, that judging could certainly reach -- or judges could certainly reach -- different results and make a difference in judging depending on their race or ethnicity. You didn't render a decision on whether they would be better judges or not. But then you did. You quoted Justice O'Connor to say a wise old woman or wise old man would reach the same decisions. You said I'm not sure I agree with that statement. And that's when you made the statement that's now relatively famous. "I would hope a wise Latina woman with the richness of her experience would more often than not reach a better conclusion."
So here you're reaching a judgment that not only will it make a difference but that it should make a difference. You acknowledge that they made a big difference in discrimination cases but it took a long time to understand -- it takes time and effort. "In short, I accept the proposition that difference will be made by the presence of women and people of color on bench and my experiences will affect the facts that I choose to see. I don't know exactly what the difference will be in my judging but I accept that there will be some based gender and my Latina heritage." You said that you weren't encouraging that. And you talked about how we need to set that aside, but you didn't in your speech say that this is not good. We need to set this aside. Instead you seem to be celebrating it. The clear inference is it's a good thing that this is happening.
So that's why some of us are concerned, first with the [?] [?] in his speech and then this article. It would lead someone to the conclusion that (a) you understand it will make a difference; and (b) not only are you not saying anything negative about that, but you seem to embrace that difference, in concluding that you'll make better decisions. That's the basis of concern that a lot of people have. Please take the time you need to respond to my question.
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