Bea V. Larsen . . . .Commentaries |
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Bea V. Larsen is a Senior Mediator at the Center for Resolution of Disputes in |
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They Will Take Another Look This entry was posted on 6/20/2009 6:25 AM and is filed under Generally Speaking. My fantasy: a conversation with each of the Justices of the United States Supreme Court. Since it is make-believe, I will be insightful and articulate, not restrained by awe. The question I’ll ask is: can you be free of bias, old messages, when deciding a case where race or sex discrimination is alleged? This is a daydream, so there will be no equivocation, and they will each start their response with the same word: Absolutely. The storytellers among them may then talk of how they became sensitized, by a wife, or more likely a daughter, or perhaps an African-American colleague, and will describe how their consciousness was raised. For many years now, the evolving civil rights and women’s movements have reeducated all of us. I believe the Justices will speak with sincerity. The State and Federal Court Judges in my own community would surely answer the question in the same way. Perhaps to a confidante some might admit to a residual bias that surfaces in their personal lives. Never on the Bench. But they would be wrong, even the Supremes. Either lacking in self-knowledge or too well schooled in P.C. I know this because even though I would choose to deny harboring prejudiced thoughts, it is true of me as well, and readily admitted to by my most liberal friends, when willing to be forthright. Biases instilled when we were young, born of a parent’s disdain, or fear of the stranger in our midst, can be reasoned away, but rarely entirely erased. So, at important moments we need to be reminded, and the presence of someone outside our own group (those we grew up with as equals), provides that reminder. The nomination of Judge Sonia Sotomayor is making us take another look, and ask a legitimate question: does it really matter that she is a woman, and an Hispanic? I think so. Justice Scalia, interviewed by journalist and author Juan Williams, said of Justice Thurgood Marshall, “He wouldn’t have to open his mouth to affect the nature of the conference and how seriously the conference would take the matter of race.” A 2005 study by Jennifer L. Peresie published in the Yale Law Journal found that the presence of a female judge on a three-judge panel significantly increased the probability that a male judge supported the plaintiff in a sex discrimination or sexual harassment case. In fact, she found that “panels with at least one female judge decided cases for the plaintiff more than twice as often as did all-male panels.” In another study presented in the Columbia Law Review last year, authors Adam B. Cox and Thomas J. Miles found a similar effect in voting rights cases. Their research concluded that when a white judge sits on a panel with at least one African American judge s[he] becomes roughly 20 percentage points more likely to find a voting rights violation. So, the very presence of someone different at the table, whether in the kitchen, the corporate boardroom or in Judicial Chambers, makes a difference. Departing Justice Souter made the point well: “Anyone who has ever sat on a bench with other judges knows that judges are supposed to influence each other, and they do. One may see something the others did not see, and then they all take another look.” |
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