As the right and the left examine and attack President Obama’s nominee, Second Circuit Court of Appeals Judge Sonia Sotomayor, we should take a look at her from a “Best Practices” perspective. Although the focus of Best Practices is the legal academy, its values transfer well to consideration of a Supreme Court nominee.
I posit that Sotomayor is a Best Practices kind of nominee. Why?
1) REAL LAWYER EXPERIENCE – Best Practices highlights not just experiential learning but the importance of valuing the lessons of experience. In Sotomayor’s case, she has vast experience on the bench — as her supporters remind us repeatedly, she “would bring more federal judicial experience than any justice in over 100 years.” More importantly, from a Best Practices perspective, she brings real experience as a trial lawyer in the nitty gritty work of serving as an assistant district attorney in one of the busiest courts in the U.S. where common folks from diverse backgrounds flow through as victims, witnesses, law enforcement actors, experts, jurors, court staff and community representatives.
2) REPRESENTING CLIENTS – From what I can tell, Sotomayor does have experience representing clients on intellectual property clients in a private firm setting. I do not know whether her work included a range of clients from all walks of life. If it did, so much the better. Best Practices reminds us how absurd it is that in most settings one can graduate with three years of law school under one’s belt without ever having represented a real flesh and blood client. Best Practice calls for more opportunities for law students to obtain early experience with clients and the problems of practice so they understand what happens when abstract notions meet the context of an actual client. Similarly, wouldn’t it help to have supreme court judges who have experienced what happens to real clients in real cases? For example, it is very telling to watch the path from client’s mouth to appellate record? Isn’t it an advantage, to know how a clients’ story can get mangled, distorted, enhanced, trivialized or diluted by the vagaries and procedures of the lower court process which determines the record provided for US Supreme Court consideration. Such experience, as in the case of the renowned Justice Brennan, adds a dimension to the reading of a trial transcript and a glimpse into the stories behind the typed narratives.
3) “INTERCULTURAL KNOWLEDGE” & THE SUPREME COURT - Chapter 2 of Best Practices asserts that law schools should have a programmatic goal of helping students “acquire the attributes of effective, responsible lawyers” including demonstrating “sensitivity and effectiveness with diverse clients and colleagues.” (For more discussion about this issue, see 2008 Blog Posts below by New Mexico Professor Antoinette Sedillo Lopez and “Emerging Directions in Clinical Education” in which she “eschews” the term “cultural competence” in favor of intercultural knowledge and communication. http://law.wustl.edu/Journal/28/Lopezbookpages.pdf )
Best Practices states:
One way in which law schools can enhance their students’ abilities to deal sensitively and effectively with diverse groups of clients and colleagues is by serving as a model for promoting diversity in law practice and community, including having in the law school community a critical mass of students, faculty, and staff from minority groups that have traditionally been the victims of discrimination. As students progress through law school, they identify and analyze their conscious and subconscious biases regarding race, culture, social status, wealth, and poverty through discourse with their teachers and fellow students. They test their own perceptions against those of their peers and teachers. If the law school community is racially, culturally, and socio-economically diverse, students develop better understandings of the ways in which race and culture can affect clients’ and lawyers’ world views and influence their objectives and decisions.260
Interestingly, this language is similar to the observations made by former and current Supreme Court Justices and Court scholars in today’s New York Times, Week in Review, page 1 article “The Waves Minority Judges Always Make.” The article notes that even the most conservative justices acknowledge that Thurgood Marshall’s “very presence exerted a gravitational pull more powerful than his single vote.” Thus, Sotomayor’s presence, conversation during deliberations, and experiential insights should bring a fresh perspective to the court and provide a more informed backdrop for eventual majority opinions and dissents.
What say you about my musings?