MORGANTOWN -- A few of my lawyer friends have told me, only half-jokingly, that they prefer to argue before a judge who is fair ... unless, of course, they can have a judge who favors their point of view.

The famous statue of Lady Justice shows her wearing a blindfold while holding balanced scales. The symbolism is straight-forward; Justice is supposed to be administered impartially.

President Obama's nomination of Sonia Sotomayor to the U.S. Supreme Court has highlighted the debate over just how neutral judges can and should be. Should judges strive for rigorous impartiality, setting aside completely their own identity? Or should they view the administration of the law through their own life experiences?

Interestingly, one of Sotomayor's most controversial comments that has surfaced so far was at a conference at Berkeley in 2001 where she was addressing the question of the potential impact of individual experiences on judges.

Sotomayor explained that some jurists "aspire to achieve a greater degree of fairness and integrity based on the reason of the law." But she wondered "whether by ignoring our differences as women and men of color we do a disservice both to the law and society."

Writing on an NPR blog, Frank James suggested that conservative senators could interpret that statement to mean that Sotomayer believes "it's all right for women and men of color to put a thumb on the scales of justice."

It was later in her presentation that Sotomayer, who is Latina, said the following: "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."

That's a troubling statement.

It is one thing to suggest that someone with a nontraditional background can bring a different set of life experiences to the job; it's quite another to believe that your particular group (in this case, Latina women) is superior to another group.

Perhaps she was just playing to the audience. The theme of the conference was: "Raising the Bar: Latino and Latina Presence and the Struggle for Representation."

It was a racist comment, and one she should have to explain when she goes before the Senate Judiciary Committee. However -- and this is an important distinction -- I don't believe the comment makes her a racist.

People say and do stupid things all the time, but we want to be judged -- should be judged -- on the body of our work.

The larger question remains to what degree a judge -- particularly one on the highest court in the land -- must be able to "empathize" with those who come before him/her.

Sotomayor supporters point out that conservative Justice Samuel Alito said during his confirmation hearing that his experience as the grandson of Italian immigrants comes to mind when he takes up cases of immigration and naturalization.

"I can't help but to think of my own ancestors, because it wasn't that long ago when they were in that position," Alito said.

But he also quickly added this: "It's my job to apply the law. It's not my job to change the law to achieve any result."

And that's a legal philosophy that transcends race, gender, ethnicity, or any other personal characteristics that shape one's identity.

Kercheval is vice president of operations for MetroNews and the host of Talkline, which has become a signature program of the network.




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