Welcome to the first of what we hope will become a regular contribution to this website – the first Idaho Women Lawyers, Inc. Board blog. The mission of our organization is to promote women and minorities in the legal profession. As it appears that the Senate is ready to confirm the appointment of Judge Sonia Sotomayor to the Supreme Court of the United States, it is especially appropriate that our first blog discuss the historic appointment of this first Latina woman to our nation’s highest court. We have decided to jump head first into the controversy surrounding the comments she has made about a “wise Latina woman” dispensing justice, the idea that a Judge’s personal experiences may shape their judicial decision-making, and the notion that achieving diversity on the bench is a worthy goal.

Idaho’s Senators will vote against the appointment of Judge Sotomayor, citing concerns about her judicial philosophy on issues including gun rights and the consideration of foreign law in judicial opinions. Click here.

IWL is not a political organization, and we do not intend to debate the judicial or political philosophies, conservative or liberal, of any specific Judge or Court. But Judge Sotomayor’s confirmation hearings have highlighted issues that are near and dear to our core mission. Indeed, in all of the rhetoric being bounced through the airwaves and on the internet about Judge Sotomayor’s appointment, we hear echoes of a debate we helped spark in Idaho in 2007 with the appointment by Governor Otter of two new Justices to the Idaho Supreme Court. That year, Idaho became one of only two states in the entire country to have no women justices serving on the State Supreme Court. Read article here. Governor Otter ignored IWL’s requests that he should consider diversity in making his appointments, given that the Idaho Judicial Commission had nominated two qualified female candidates among the four candidates for his consideration. Click here.

Ultimately, many of us within IWL felt the rhetoric in Idaho in 2007 suggested that it was wrong even to consider the value of having diversity on the bench, some suggested that bringing a female perspective to the court should make no difference at all, and some even accused IWL of promoting some kind of quota system for the Idaho Supreme Court. That is not our mission. We are not promoting some kind of “affirmative action” program for the bench of Idaho. Rather, we subscribe to the core philosophy that women and minorities should not be excluded from any legal position for which they are qualified based upon their gender, race, or ethnicity. When equally qualified candidates are being considered for a judicial appointment, it is fair and right for the appointing bodies, whether they are the Governor, the legislature, the Judicial Commission, or the electorate, to consider bringing some diversity of experience and perspective to the bench. It is no less important than other qualifications for the bench, and indeed, it may be more relevant to judicial decision-making than other qualities that are regularly considered by the appointing bodies, such as political affiliations and party loyalty.

In modern history, nominees to the Supreme Court have been permitted to give very vague and non-committal answers in response to any legal questions that could possibly come before the Supreme Court, to prevent any appearance of judicial bias in their decision-making. The nomination process has become an opportunity for the opposing political party to highlight their differences of political or judicial philosophy, without actually discussing matters of legal substance. In the case of Judge Sotomayor, this process seems to have taken an ugly turn, with the politicians on both sides of the aisle accusing each other and the nominee of racism and sexism. Name-calling rarely contributes to informed, rational, and level headed decision making. As a country, we should all take a deep breath, abandon some of the button-pushing, and really examine what our judicial values are and should be.

Can a wise Latina woman really make better decisions than a white male Judge? Sometimes. Sometimes not. That was not really the point of Judge Sotomayor’s widely criticized statement at a 2001 gathering at Berkeley Law School. Because of the uproar this comment has generated, both Judge Sotomayor and President Obama have expressed their regret over her choice of words in that speech, the Judge calling it a “rhetorical flourish that fell flat.” In the law, as in life, context matters. The entire speech in which the controversial quotation appears can be found here.

In this speech, and throughout her confirmation hearings, Judge Sotomayor has stated repeatedly that a Judge’s first and highest duty is to follow the rule of law. She aspires to complete independence in rendering her judicial decisions. She also believes, as many wise jurists have believed before her, that a Judge brings all of his or her life experience to the bench. Judge Sotomayor believes that good Judges are able to set any biases they may have aside and render their decisions based upon the facts, the law, and the record in each individual case that comes before them. Judge Sotomayor does not believe that because she is a Latina woman that she will be a better Judge than white men. She believes that wisdom, whether gained from books or life experience, makes a good Judge.

Great jurists throughout our nation’s history have valued the special kind of wisdom that life experience brings to the bench. Justice Oliver Wendell Holmes, Jr. put it most elegantly,

“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

http://www.law.harvard.edu/library/collections/special/online-collections/common_law/index.php

Justice Benjamin Cardozo expressed a similar view, with equal eloquence:

“There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them - inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. … In this mental background every problem finds it setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. …Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [he or she] be litigant or judge.”

The Nature of the Judicial Process (1921), at pp. 12-13, and 167; http://www.constitution.org/cmt/cardozo/jud_proc.htm

Justice Souter, the Bush appointee whom Judge Sotomayor is set to replace, has recently stated that difficult questions of legal interpretation often come down to the application of a sense of “reasonableness,” which he describes as something akin to “common sense. “ http://politics.theatlantic.com/2009/05/justice_souters_dream.php

As Justice Sandra Day O’Connor said, “Each of us brings to our job, whatever it is, our lifetime of experience and our values.” http://womenshistory.about.com/od/quotes/a/s_d_oconnor.htm . Even two recent conservative Supreme Court appointees have, in their confirmation hearings, acknowledged their belief that their personal experiences and perspective might impact their decision making on the nation’s highest court. Justice Clarence Thomas stated during his confirmation hearings that he would bring a unique perspective, based on his unique experience, to the Court. He described some of that perspective in some detail, stating that when he saw criminal defendants coming off of the bus near his office he thought to himself, “but for the Grace of God, there go I.” http://mediamatters.org/research/200905260048. Similarly, Justice Samuel Alito stated during his confirmation hearings, “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” http://mediamatters.org/research/200907140007

At an American Judicature Society meeting held in 2007, the topic for discussion was precisely this issue: Judges cannot possibly set aside their personal conscience in rendering their decisions, but it is their solemn duty as Judges to try to follow the law and the facts of each individual case, even if the result conflicts with the Judge’s own sense of morality. http://www.ajs.org/ajs/publications/Judicatories/2007/March/Wolle.as Judge Sotomayor’s record, even more than her words, prove that she is willing and able to do just that. http://www.nytimes.com/2009/06/20/us/politics/20judge.html?_r=2&ref=politics

Wisdom helps guide Judges as they assess the facts and interpret the law, as they are charged to do. As a culture, it seems that we cringe at the realization that our gender or cultural or life experiences may make a difference in our decision-making at all levels, but it should not at all surprise us. This is human nature, and Judges are, most will agree, human. As a journalist who has covered the Supreme Court for twenty years, Linda Greenhouse noted even before this controversy erupted that Supreme Court Justices have regularly referred to their personal life experiences in rendering their opinions. See article here.

A recent and award-winning study of sex discrimination cases in the federal courts from 1995-2003 concludes that there were statistically significant differences in the outcome of these cases based on the gender make-up of the courts deciding them. This study is especially interesting in its findings that having at least one woman on the panel seemed to have a statistically significant effect on the male judges’ voting patterns in these cases. http://epstein.law.northwestern.edu/research/genderjudging.pdf . Justice Ginsberg recently and rather famously has chastised her male colleague’s lack of sensitivity in dealing with the school strip-search case, (http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf) stating they did not fully understand the trauma the young girl suffered because they have never been a thirteen year old girl. She also complained that her male colleagues were simply wrong in the Equal Pay Act Ledbetter case (http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf) in holding that proving unequal pay was no more difficult than proving other claims of discrimination. Justice Ginsberg expressed her sincere conviction that if Justice O’Connor had helped decide that case, she would have agreed with Justice Ginsberg. http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?_r=1 A woman’s voice and perspective on the bench can make a difference in the outcome of cases, subtle or overt, conscious or unconscious.

While we may never understand fully the reasons for our differences, and while we may not always be aware of them because they are so subtle, we also may never be able to escape them. While Judges must put aside their personal biases, we want them and need them to bring their common sense, including the kind of common sense that can only be gained through life experience, to the bench. That is not at all a bad thing.

Perhaps this is difficult for us to talk about because we all want to believe Justice Sandra Day O’Connor’s often quoted aphorism that “a wise old man and a wise old woman will come to the same conclusion. “ (The quote may not be directly attributable to Justice O’Connor, but it seems to have appeared in an interesting law review article she authored that warns women lawyers against over-emphasizing the gender differences in the practice of law. See http://legalinsurrection.blogspot.com/2009/06/what-sandra-day-oconnor-said.html ). We want to believe, on some level, that gender makes no difference in judging. The sentiment, however noble and correct in its assumption that men and women are equally capable of reaching fair, just, and reason-based conclusions, presupposes that there is only one “right” answer to difficult legal questions. As most of us who have gone to law school recognize, that is rarely the case. That is why we have multiple jurists sit on appellate courts. That is why we permit majority, dissenting, and concurring opinions. That is why we do not appoint one “Super Judge” to rule on all cases. That is why trial courts get overturned, and that is why Supreme Court precedent sometimes, on occasion, gets overturned. When reasonable jurists disagree on how to resolve difficult legal issues, as much of the time they do, life perspective can make a difference in the outcome of a case. It is considered perfectly acceptable for a Judge’s political affiliations to be considered in making a judicial appointment, when of course those political views must also be set aside when deciding individual cases. How it is any different then to consider a candidate’s other life experiences, including their gender, race, ethnicity, or anything else they may bring with them to the bench?

When I was in a first year law student in 1987, my roommate and I were horrified to read an article in our free ABA Journal that discussed the gender differences between male and female litigators, which to my memory essentially advised female litigators to overcome their natural tendencies to be polite and restrained in the courtroom. My roommate and I promptly drafted a letter to the editor, which, to our surprise, was printed. In our letter, we expressed our outrage and concern that articles like this fostered dangerous stereotypes that women generally were not aggressive or tough enough to compete with men in a courtroom. Both my roommate and I graduated from law school in 1990 and went on to pursue successful careers as trial attorneys. I am old enough to know that gender differences can be twisted into stereotypes that keep women out of the game and below the glass ceiling.

Although I recognize that I have a different world view than some of my male colleagues, I don’t see that making any difference whatsoever in how I practice law, nor do I feel my male colleagues treat me any differently than they treat any other lawyer. I understand and heed Justice O’Connor’s warnings that we should not allow supposed gender differences to be used as an excuse to tell women what they can’t do. Justice O’Connor put it so well in the statements she made following her appointment to the Court, stating: “Yes, I will bring the understanding of a woman to the Court, but I doubt that alone will affect my decisions. I think the important thing about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.” http://womenshistory.about.com/od/quotes/a/s_d_oconnor.htm We would all like to have a “gender blind” judiciary, where men and women work together as equals to reach fair and just decisions, and women are not an anomaly, curiosity, or simply “political cover” on the bench.

At the same time, I think that Judge Sotomayor is a wise jurist to recognize our human condition, that we are all the sum of our experiences, and to strive to rise above it. She is a brave jurist to talk about something that seems so difficult for many to admit – that the life experiences of our Judges matter in ways large and small. There is nothing wrong with valuing and seeking out different perspectives for the courts, so long as the Rule of Law prevails. We will continue to promote qualified women and minority candidates to help bring that diversity to the bench of Idaho.

Idaho State Bar Annual Meeting

Friday, July 10, 8:30-11:45 a.m.

Sponsored by Idaho Women Lawyers, Inc.

 

I.             Overview

A.         8:30-9:15 AM

B.         Topics:  Title IX history and legal overview, developing case law and regulations

C.         Speaker(s): Kristen Galles, Title IX litigation; Linda Mangel, principal consultant, Education Equity Group

II.            Local Issues/Statistics – Glenda Talbutt, Brady Law Chtd., Moderator

A.         9:15-10:00 AM

B.         Topics:  Title IX compliance policies/gender equity policies at various high schools and smaller colleges in Idaho. 

C.         Speaker(s):  Prof. Shelley Lucas, BSU associate professor, Department of Kinesiology, Chair of the Gender Equity Subcommittee of Boise State’s Intercollegiate Athletics Advisory Committee from 2001-2007; Elaine Eberharter-Maki, Eberharter-Maki & Tappen, PA; Connie Skogrand, Mountain View High girls basketball coach

 

BREAK  – 10:00 - 10:15 AM

III.          Open Discussion/Policy Forum – Kristen Galles, Moderator

A.         10:15-11:45 AM

B.         Topics:  Contemporary Issues in Title IX (e.g., Are more women participating in college athletics?  Have men’s sports suffered?  Do women coaches have fewer opportunities? How does college football affect Title IX analysis?)

                Panelists: Mike Prater, Idaho Statesman sports editor; Susan Buxton, Moore, Smith, Buxton & Turcke, Chtd., and member, Whitman College, Board of Overseers; Christine Von Tol, BSU senior women’s athletics administrator; Linda Mangel, Prof. Shelley Lucas, BSU associate professor, Department of Kinesiology, Chair of the Gender Equity Subcommittee of Boise State’s Intercollegiate Athletics Advisory Committee from 2001-2007.

IWL would like to congratulate Leslie Goddard, the 2009 recipient of the Kate Feltham Award. This award is intended to honor individuals who have made extraordinary efforts to promote equal rights and opportunities for women and minorities within the legal profession and legal justice system in Idaho. Past recipients include Cecil Andrus, Mary Smith, Susan Graham, Cathy Silak, Debora Kristensen, Betty Richardson, Kelly Miller and Deb Nelson.

The namesake of this award, Kate Feltham, has a remarkable place in Idaho’s history. Kate E. Neville was born in Adams, New York on December 20, 1859, just before the Civil War began. She was one of the first graduates of the Iowa State Normal School in Cedar Rapids. She taught school in Ackley, Iowa before moving to Idaho in 1893.

On September 21, 1893, Kate Neville married Lot Feltham in Nampa. Lot served as city attorney for Caldwell from 1893 until 1895. While living in Caldwell, Kate was active in her community and a leader for women’s rights.

* She founded the first free public reading room in Caldwell.
* She was the founding president of the Progress Club, a forerunner of the Future Club in Caldwell.
* She was one of the leaders in the drive to give Idaho women the vote and served as the president of the Caldwell branch of the Idaho Equal Suffrage Association and first vice president of the state organization.
* She taught English and public speaking at the College of Idaho (Albertson College).

By 1910, Kate and Lot were living in the Weiser area. In the 1910 census Kate is listed as a fruit farmer. She was admitted to the practice of law on September 22, 1914, the fifth woman admitted to practice law in Idaho. In 1926 she was appointed the prosecuting attorney for Washington County in Weiser, becoming the first female county prosecutor in Idaho. She remained in the Weiser area after she and her husband divorced. She continued to practice law into the early thirties and died in 1936.

Kate Feltham was an early pioneer for women’s rights and women in the legal profession.

The award will be presented at IWL’s annual board meeting on (date to be announced) at Yen Ching restaurant in Boise for a cocktail hour, dinner and presentation of the award.

Congratulations Leslie!