Read this. Notice the difference between the following questions:
1. Do men and women judge differently?
2. Should men and women judge differently?
The answer to the second question is no, even if the answer to the first question is yes. Compare:
1a. Do men rape women?
2a. Should men rape women?
There's a difference between what is the case and what ought to be the case. Some things that are the case ought not to be the case, and some things that are not the case ought to be the case. Just as we expect men to resist the temptation to rape, however strong it is, we expect male and female judges to resist the temptation to allow their sex to influence their judgment, however natural it is. What's disturbing about Judge Sonia Sotomayor is that she appears to think it's acceptable to bring irrelevancies such as race, ethnicity, or sex to bear in her decisionmaking. Does she not see where this leads? If it's acceptable for her to bring these things to bear, then it's acceptable for a white male judge to bring them to bear. Doesn't the rule of law require that judges bend over backward to keep these irrelevancies from playing a role? If someone is incapable of keeping them from playing a role, isn't that in itself evidence of unfitness for the judicial role, which requires strict impartiality?
Addendum: In the New York Times story, Justice Ruth Bader Ginsburg says (or implies) that, because none of her male colleagues has ever been a 13-year-old girl, none of them is capable of understanding what it is like to be a 13-year-old girl. By that logic, Justice Ginsburg—a white female heterosexual—is incapable of understanding what it is like to be (1) a black person, (2) a male, or (3) a homosexual. So why is she issuing opinions in cases that involve these people?
