Should Identity Matter On The Bench?
MICHEL MARTIN, host:
But we decided we wanted to talk more about this issue that has dominated much of the first two days of the hearings - at least with the Republican questioners - and that is whether personal experience should influence a judge's decision making. Here's Jeff Sessions from Alabama. He's a ranking Republican on the committee.
Senator JEFF SESSIONS (Republican, Alabama): I will not vote for and no senator should vote for an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender, prejudices or sympathies to sway their decision in favor of or against parties before the court.
MARTIN: We wanted to dig into this further and ask questions like, is personal experience the same as a prejudice? Should a judge ignore his or her life experience in reaching decisions? Is this really possible? So to talk more about this, we called Cruz Reynoso. Like Sonia Sotomayor's, Cruz Reynoso's life story is the stuff of which movies have been made.
He is one of 11 children, the son of farm workers. He began working the fields when he was nine years old. He rose to become the first Latino to serve on the California Supreme Court. Over the course of his career, he served three California governors and two U.S. presidents. And in 2000, President Bill Clinton awarded him with the Presidential Medal of Freedom, the nation's highest civilian honor.
Today, Reynoso is professor emeritus at the University of California Davis School of Law. And we're pleased that he was able to join us. Mr. Reynoso, your honor, welcome.
Professor CRUZ REYNOSO (University of California Davis School of Law): Thank you very much.
MARTIN: No doubt you've been following the hearing. So this question of whether personal experience has any role in the courtroom: Does it?
Prof. REYNOSO: Absolutely. To think that a person could be appointed to the bench and not bring with him or her their personal experiences and knowledge frankly is ludicrous. It's expected that the judges will do precisely that. The issues that come before a Supreme Court are not easy issues. And perhaps the wisdom of knowing that came from those who put the Constitution together.
They indicated that for the Supreme Court, there should be more than one judge. On the U.S. Supreme Court, nine judges, on the California Supreme Court, seven judges. Good folk reach different conclusions, and those conclusions are raised in part on the basis of their experiences.
MARTIN: Can you give an example of where - exactly where your - one of your rulings was appropriately influenced by your own personal experience?
Prof. REYNOSO: Certainly. When I was on the Supreme Court, a case came before us asking the question whether or not due process required that a person charged with a crime, but did not speak English, was entitled to an interpreter? I had had the experiences as a lawyer of having a person whom I was representing sitting by me, and the person didn't understand what the witnesses were saying about him.
Further, for me, it was very difficult to both listen to the witnesses and respond to my client in terms of what the witness was saying. So I shared that experience with my fellow judges, and all but one were convinced that, in fact, basic fairness on the constitutional sense required that there be an interpreter for that individual. And it's now the jurisprudence of California. I think without the experience that I had, it would not have been manifest to the other judges.
MARTIN: They just had not had a distinct experience of both trying to serve as translator and as counsel, and you were able to help them see it. But on the other hand, do you understand the concerns raised by senators like Sessions and the other Republicans who say that Judge Sotomayor's discussion of her ethnicity would sway her?
Prof. REYNOSO: I understand the concern as expressed. It has not been my experience on the court. Indeed, we as judges always have to be conscious of what your own feelings might be and whether they would affect that opinion.
I had one experience having to do with welfare. And my sympathies were with those individuals. I studied the case for weeks because it bothered me that in my view, the individuals did not have protection. Sometimes I have a feeling that we as judges have a tendency to go the other way just to make sure that...
MARTIN: Do you think...
Prof. REYNOSO: ...that we're not allowing our prejudices to control us.
MARTIN: Do you think that perhaps because you were the first Latino to serve on this high court that you were more sensitive about scrubbing your personal biases than perhaps others? And I just - I think the question leads to whether you think that there is a double standard.
Prof. REYNOSO: Well, in fact I think there's a double standard. But I don't know that it's established by anybody else but us. That is, I had a one party, for example, file a motion that I should recuse myself in a case simply because I had belonged to organizations that Mexican-Americans belonged to. That's no basis for the recusal, but it was just a reminder that folk are looking at you with doubly sensitivity to the fact that you're a Latino or an African-American, or a female. And we still do seem to have in this country, among many folk, the notion that somehow a white male can be fair to anybody, a woman, a minority, et cetera. But if you're a woman or you're minority then you may be prejudiced in favor of those folk...
MARTIN:Did you ever have those conversations with your fellow judges?
Prof. REYNOSO: I did have the discussion about being super careful in thinking through the cases that we were applying the law and the Constitution, and not our own feelings about it. And all of us agreed that we go through those struggles and we have to be doubly careful.
MARTIN: And finally, having served for so long and having been a trailblazer, do you foresee a time when these questions will not be asked?
Prof. REYNOSO: Oh, absolutely. In fact, it's already happening. In California, we have now on the California Supreme Court with seven judges, three of them are women. And I don't hear those questions being asked of those three women the way they were when we had the first women on the Supreme Court. And we have now actually a majority of the seven judges being of identifiable groups like race, ethnicity and gender. So, I don't - actually, it's happened so quickly.
MARTIN: Cruz Reynoso is professor emeritus at the University of California Davis School of Law. He was the first person of Latino heritage to serve on the California Supreme Court. And he is a recipient of the Presidential Medal of Freedom, the nation's highest civilian honor. And he joined us from the studios on the campus of UC Davis. Mr. Reynoso, your honor, thank you so much for joining us.
Prof. REYNOSO: Thank you very much.