A guest post from Cornell law professor Eduardo M. Peñalver, who clerked on the Second Circuit for Judge Guido Calabresi and on the Supreme Court for Justice John Paul Stevens :
As some of you have pointed out, considered in the context the rest of her speech, it is clear that Sotomayor merely meant that appointing "a wise Latina woman with the richness of her experiences" to the bench would (on average) do more to improve judicial decision-making than appointing a(nother) comparably wise white male judge. Understood in this way, the comment is benign and, more importantly, almost certainly true.
Crucial to understanding Judge Sotomayor’s argument is the way in which decisions are made in appellate courts. Both the court on which she sits and the court to which she aspires decide cases collectively. This context is crucial because a large body of social science evidence confirms Judge Sotomayor’s contention that ensuring that a group includes people with a variety of viewpoints and life experiences increases the reliability of the group’s decision-making process. Diverse groups are more likely to reach the right conclusion because the different members of the group complement each other’s blind-spots and reduce the likelihood that commonly held, but incorrect, assumptions will carry the day.
In contrast, homogenous groups tend to feed on their own shortcomings because it is more often the case that no one in the group will challenge widely held biases and misperceptions. In one influential study by Samuel Sommers , a Tufts University psychologist, mixed-race mock juries were found to be more likely to discuss a broader range of case facts than their all-white counterparts. In contrast, members of all-white juries were found to be more likely to make erroneous statements, and those erroneous statements were more likely to go uncorrected. As the conservative legal scholar Adrian Vermeule put it in a 2007 article in the Stanford Law Review , "diversity dilutes groupthink and can thus improve both group deliberation and group decisionmaking."
The cognitive benefits of diversity for collective decision-making point toward the other piece of information necessary to understand Judge Sotomayor’s argument: the demographic make-up of the federal judiciary. The federal bench as a whole is both significantly whiter (81 percent) and more male (75 percent) than the population in general (75 percent and 49 percent, respectively), and this is especially true of the Court of Appeals. Latinos are particularly underrepresented, constituting just 7 percent of all federal judges but over 12 percent of the population of the United States. Do Judge Sotomayor’s conservative critics really want to contend that a greater diversity of life experiences and viewpoints on the federal bench will not make a difference for the better?
Judge Sotomayor could obviously have been a little more precise in choosing her words. Considered in its full context, however, her point was clear enough. Not only was her comment not racist, it should be utterly uncontroversial.