Judge Sonia Sotomayor widely-discussed speeches made a flippant comment regarding the originality of former Sandra Day O'Connor's quotation: "A wise old woman and a wise old man, at the end of the day, can reach the same conclusion." Recall the original Sotomayor speech extract:
Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line, since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Minow has noted, there can never be a universal definition of wise. Second, 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.Let us agree that when one person corrects another, he should have his own facts straight. I believe that Judge Sotomayor, in citing Professor Resnik, is engaging in what lawyers call 'hearsay', and I don't think a judge, from a standpoint of integrity, should be quoting a secondary source. Another inference is when an American uses the term "Supreme Court Justice", he generally is referring to the US Supreme Court, not to a state Supreme Court. So I found this sentence odd because I didn't remember any Supreme Court Justice named Coyle over the past 50 years and felt this kind of observation would have been more salient in the context of the women's liberation movement since the 1960's. But I did due diligence and scanned the names of Supreme Court Justices in Wikipedia, confirming no 'Coyle' or a relevant misspelled source name. At this point, I felt like the boy insisting that the emperor was wearing no clothes: the passage has been widely cited by hundreds of news sources and bloggers, none of them (including any of the senators on the Supreme Court) seeming to question what I just uncovered.
I did some additional research on the Internet and found others had noted the discrepancy, including an explanation from the alleged source's protégé and employee. It turns out the source is the late Justice Mary Jeanne COYNE of the Minnesota Supreme Court, but the quote in question is not even O'Connor's quote but a somewhat different one: "A wise old woman will make decisions in about the same way as a wise old man." In other words, the Coyne quote refers to the decision PROCESS, whereas the O'Connor quote refers to the decision OUTCOME. It should be noted that not even the misquotation is original: Justice Paul H. Anderson wrote this passage about their fellow colleague Esther Tomljanovich:
Esther challenged long-standing approaches to problem solving. A former colleague of hers believed [that] 'a wise old man and a wise old woman will come to the same conclusion.' This comment bothered Esther. Her retort was that if this statement was correct, then 'a lot of us wasted our time trying to assure the appointment of women to the bench'.Justice Anderson's own retelling is somewhat inconsistent. If Justice Tomljanovich approached her decision making differently as suggested, it would make sense that she opposed Justice Coyne's original phrasing: She probably considered her own decision-making process gender-specific (versus individualistic).
I have had an active interest in mathematical theorem-proving, and mathematicians are appreciative of a diversity of ways of coming to the same end. I think most Americans see ideal judicial decision-making in the same way: we start with the same facts and precedents (axioms, proved theorems, etc.) converging at the "right" decisions, and wisdom is the ability to come to the "right" decision. But just as Supreme Court Justice Lewis Powell famously said about hard-core pornography, in Miller v California, ""I shall not today attempt further to define [it]..., but I know it when I see it."
Similarly, the American people intuitively know wise judges and wise decisions; we see underlying consensus that bridge the judicial ideological gulf. One example is the historic unanimous decision of Brown v Board of Education of Topeka. This suit started because a young black girl was not permitted to attend her neighborhood school just like all her other friends; she had to go to a blacks-only school far away from her home simply to maintain an unconscionable race-based public policy of school admissions, which was both economically inefficient and fundamentally unjust. This made a mockery of our American ideals as our nation had failed to live up to the full promise of emancipation and allowed lawmakers to create a sophistical patchwork of workarounds denying full integration of freedmen and their descendants into American society, based on their race. More recently, we saw a recent reaffirmation of our Bill of Rights in the near-unanimous in the Safford v Redding case, where the groundless, fruitless strip search of a middle-school girl for over-the-counter medication was deemed illegal.
JudgesTomljanovich and Sotomayor seem to see wisdom as relative and are not inherently troubled by contradictory judicial decisions from the same set of facts and precedents, the way most of us are troubled by logical paradoxes or, in an analogous manner, the Kantian antinomies or contradictory conclusions of pure and empirical reasoning.
I believe that Judge Sotomayer confuses technical competence with wisdom; this is clear when she describes wisdom being a characteristic equally applicable to judges on both sides of an issue. Certainly judicial philosophy is fairly consistent factor when it comes to the Supreme Court. Chances are that Judge Sotomayor would be expected to side with the liberal/activist faction today consisting of Justices Ginsburg, Stevens, Breyer and Souter.
Wisdom, in my view, goes beyond finding a philosophically-coherent rationalization, e.g., cherry-picking precedent, where four liberal lower-court judges including Sotomayor (all Clinton appointees) put a Justice Department heuristic criterion for Title VII above and beyond the Equal Protection clause of the Constitution. The heuristic was merely SUGGESTIVE of possible discrimination, not PROOF. What Sotomayor failed to look at was the big picture: tests were part of the civil service system to root out subjective factors and unfair hiring practices, e.g., political favors, personal connections, nepotism, etc. They provide a fairer way of judging individual suitability for a higher-level position based on merit (knowledge, experience, etc.) All you can do is ensure a good-faith effort that tests are made to be rigorous and fair, which New Haven did in the Ricci case. The fact is that the New Haven results weren't out of line with other results--the response is NOT, as Chicago or New Haven have done, to suspend or dumb down tests. Promoting less qualified applicants, regardless of ethnic group, poses an ill-advised risk to the lives and health of residents in relevant communities.
I am not going to argue that promotion processes should be racially disparate in outcome. It would require more research to understand why this is happened. To me, the salient issues are whether the city of New Haven made a good-faith effort to control for the risk of cultural bias in the exams, whether exam results are out of line with similar experience elsewhere (in other words, minority performance should not be materially worse), whether minority applicants took the exam under worse conditions (e.g., less time, poor ergonomic conditions, different, more complex questions, unavailable access of training materials, etc.) It doesn't look as though the Clinton-appointed judges did anything more than conclude New Haven was allowed to throw out the exam simply based on score distributions. The only real way of guaranteeing enough minority members passed essentially would be to water down the exam, which essentially eliminates the ability of the managers to compare candidates on an objective basis.
I have not researched the differences in promotion policies between the military and civil service, but I believe that the military has achieved an inclusive promotion policy without compromising national security. There could be a modification of promotion policies, a test score cutoff for promotion consideration and a variety of factors taken into consideration, e.g., neighborhood residence, tenure in grade, normalized or improved supervisor and peer-evaluated job performance, ongoing professional education and training, recruitment and public speaking events, job performance/team awards, and extracurricular community service. There could be special remedial training courses and mentoring programs for minority candidates or external recruitment of qualified minority candidates. There could a concept of a limited number of probationary minority opportunity promotions conditioned on sufficient availability of qualified minority candidates; these might require successful completion of supplemental training requirements.
I am empathetic to the concept that single-point measurements may not be reliable assessments of performance or indicators and Judge Sotomayor is positive proof that despite middling entrance exam scores, she performed exceptionally at Ivy League schools, demonstrating the limited predictive value of entrance exam scores. But she should not generalize from her experience, and it's not the judge's role to critically evaluate the promotion test, other than to judge fundamental constitutional issues. We live in an imperfect world, and the US Constitution doesn't guarantee ideal results. What it does require is equal protection, a fair opportunity to compete. In the Ricci case, all sides understood the rules; all sides had access to relevant training materials. What we have is a scenario not unlike bar exams or medical boards. When someone passes a bar exam, we don't have a rollback of passing scores simply because not enough minority applicants passed.
Going back to the original matter of the O'Connor quote, I am disappointed by Judge Sotomayor's lack of due diligence. What comes to mind is the following quote attributed to a wise old German man:
"Anyone who doesn't take truth seriously in small matters cannot be trusted in large ones either." - Albert Einstein
