sexta-feira, 15 de maio de 2009

Vetores para compreensão do papel do juiz

Matéria enviada pelo Prof Farlei Oliveira da Ucam e doutorando da puc-rio direito

The New York Times

May 15, 2009
A Judge’s View of Judging Is on the Record
WASHINGTON — In 2001, Sonia Sotomayor, an appeals court judge, gave a speech
declaring that the ethnicity and sex of a judge “may and will make a
difference in our judging.”

In her speech, Judge Sotomayor questioned the famous notion — often invoked
by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague,
Sandra Day O’Connor — that a wise old man and a wise old woman would reach
the same conclusion when deciding cases.

“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,” said Judge Sotomayor, who is now considered to be
near the top of President Obama’s list of potential Supreme Court nominees.

Her remarks, at the annual Judge Mario G. Olmos Law and Cultural Diversity
Lecture at the University of California, Berkeley, were not the only
instance in which she has publicly described her view of judging in terms
that could provoke sharp questioning in a confirmation hearing.

This month, for example, a video surfaced of Judge Sotomayor asserting in
2005 that a “court of appeals is where policy is made.” She then immediately
adds: “And I know — I know this is on tape, and I should never say that
because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m
not advocating it. I’m — you know.”

The video was of a panel discussion for law students interested in becoming
clerks, and she was explaining the different experiences gained when working
at district courts and appeals courts. Her remarks caught the eye of
conservative bloggers who accused her of being a “judicial activist,”
although Jonathan H. Adler, a professor at Case Western Reserve University
law school, argued that critics were reading far too much into those

Republicans have signaled that they intend to put the eventual nominee under
a microscope, and they say they were put on guard by Mr. Obama’s statement
that judges should have “empathy,” a word they suggest could be code for
injecting liberal ideology into the law.

Judge Sotomayor has given several speeches about the importance of
diversity. But her 2001 remarks at Berkeley, which were published by the
Berkeley La Raza Law Journal, went further, asserting that judges’
identities will affect legal outcomes.

“Whether born from experience or inherent physiological or cultural
differences,” she said, for jurists who are women and nonwhite, “our gender
and national origins may and will make a difference in our judging.”

Her remarks came in the context of reflecting her own life experiences as a
Hispanic female judge and on how the increasing diversity on the federal
bench “will have an effect on the development of the law and on judging.”

In making her argument, Judge Sotomayor sounded many cautionary notes. She
said there was no uniform perspective that all women or members of a
minority group have, and emphasized that she was not talking about any
individual case.

She also noted that the Supreme Court was uniformly white and male when it
delivered historic rulings against racial and sexual discrimination. And she
said she tried to question her own “opinions, sympathies and prejudices,”
and aspired to impartiality.

Still, Judge Sotomayor questioned whether achieving impartiality “is
possible in all, or even, in most, cases.” She added, “And I wonder whether
by ignoring our differences as women or men of color we do a disservice both
to the law and society.”

She also approvingly quoted several law professors who said that “to judge
is an exercise of power” and that “there is no objective stance but only a
series of perspectives.”

“Personal experiences affect the facts that judges choose to see,” she said.

Charles J. Ogletree Jr., a Harvard law professor and an adviser to Mr.
Obama, said Judge Sotomayor’s remarks were appropriate. Professor Ogletree
said it was “obvious that people’s life experiences will inform their
judgments in life as lawyers and judges” because law is more than “a
technical exercise,” citing Justice Oliver Wendell Holmes Jr.’s famous
aphorism: “The life of the law has not been logic; it has been experience.”

In a forward to a 2007 book, “The International Judge” (U.P.N.E.), Judge
Sotomayor seemed to put a greater emphasis on a need for judges to seek to
transcend their identities, writing that “all judges have cases that touch
our passions deeply, but we all struggle constantly with remaining
impartial” and letting reason rule. Courts, she added, “are in large part
the product of their membership and their judges’ ability to think through
and across their own intellectual and professional backgrounds” to find
common ground.

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