A few add-on thoughts to a post I did a few weeks ago. In my previous life as an attorney, in New Jersey (insert joke here), I heard stories—possibly apocryphal but I think not—about a certain state supreme court justice who had been raised, shall we say, in privilege. One day, while still a mere trial court judge, said legal genius presided over a tort action, a typical ‘slip-and-fall’ case of the type much beloved by the plaintiff’s bar. In ruling against the defendant supermarket, His Honor suggested the store had been negligent because it had not carpeted its floors. Surely, he reasoned, the plaintiff would not have been injured were the floor covered with a cut pile, possibly a plush.

The supermarket’s attorney objected, rather plausibly in my view, that customers couldn’t push their shopping carts down carpeted aisles. Silence from the bench. Gradually, it dawns on all present that the judge didn’t know what a shopping cart was! After all, as those who knew him better later admitted, “the help” always did the shopping for Judge’s family.

This is why diversity of life experience is so important. A supreme court justice who knows what it’s like to pay rent in a tenement house, or pick cotton, or for that matter meet a payroll, can better understand real-life nuances and, in my view, better dispense justice. And this diversity is especially useful on a court with only nine members.

But is being a Latina relevant? I think Judge Sotomayor means to equate her racial/ethnic heritage with a form of experience. But once we admit ethnicity and race, or as previous generations might more starkly have put it—blood—to the discussion, great mischief can follow. How to answer the bigot who suggests the Judge might be too “hot-blooded” for the high court? There are plenty of Catholics and Jews on the Supreme Court. Care to ponder the implications of that? I don’t. And I don’t think the discussion is good for American democracy.
Confusing experience with racial, ethnic, or other characteristics of birth raises all kinds of complications. Here’s one from the recent presidential campaign: should “affirmative action” apply to President Obama’s daughters when they apply to college? They add racial diversity, but is their life experience (except for Dad being President!) all that unique among students at elite institutions? I bet the first lady makes sure Malia and Sasha know what a shopping cart is, but the case for the uniqueness of their life experience is weaker than that for, well, Sonya Sotomayor.

Judge Sotomayor certainly is a Latina. She may prove a wise jurist, and this would be a blessing for our nation. But let’s keep the two separate.