Sonia Sotomayor and Elle Woods Have a Lot in Common

Wed, May 27, 2009

Moms & Politics

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

That’s what Supreme Court nominee and federal court judge Sonia Sotomayor has said in the past about how individual experience comes into play when deciding cases and looking at the law.

Many conservatives are afraid of that approach and are going to try to convince America that no judge should be appointed to the Supreme Court who doesn’t decide cases merely by applying the law to the facts of a case in a vacuum.

But which facts? How do we know which ones are the important ones in any case? The right ones? The ones that will sway a case from one outcome to another? As someone who practiced law for about 15 years, I know that sometimes those questions are easier than others.

You can’t decide a case without looking at all the facts, even the ones that don’t seem important at first blush. I learned that the hard way as a young lawyer. That’s where digging a little deeper and calling on the things we’ve learned in life help us out as lawyers in a way that all those law school classes don’t.

At the risk of being called too flip in this analogy, I’d like to invoke my favorite movie lawyer Elle Woods from Legally Blonde. (If you’re short on time, pick up the video at about 4:30).

As a recovering litigator, I LOVE a good cross-examination! I’m not talking about the unlikely witness stand confession — Elle’s personal expertise that the rules of hair care are simple and finite are what turned the tide in that case. Without knowing those facts, she would not have been able to make the connection and prove that the witness was lying. Yet her male bosses scoffed at her, thinking she was headed down a pointless tangent as she questioned the witness.

I know this was just a movie, but the example happens in real life cases every day — lawyers and judges find ways to apply the things they’ve learned in their own lives — to sift through facts to figure out what’s relevant and what isn’t. Sometimes that’s easy and sometimes it takes something more than an Ivy League law degree and years on the bench to put the pieces together to see the whole picture.

Does anyone really doubt that the outcome of the Lilly Ledbetter case would have been different if the majority of Supreme Court justices had faced the kind of discrimination Ledbetter or their colleague Justice Ruth Bader Ginsburg had? Ginsburg, as is evident from her dissent, saw the facts of the discrimination a lot differently than her male counterparts.

Facts are never just black and white. They look a lot different depending on the lens through which they are viewed. For some men, there’s no relevance to how women have been treated differently than men by companies who find loopholes in existing laws. But to a woman who has lived or observed that experience, there’s a very real and significant difference.

When the GOP goes on the attack on Sotomayor’s nomination, as they surely will, and try to frame her as an activist judge or someone who can’t focus just on the facts and the law, keep reminding yourself about Elle Woods.

If she hadn’t been a Cosmo girl, her client would have ended up in jail for life for a murder she didn’t commit. I’m not saying that we should ask if Sonia Sotomayor was ever a Cosmo girl, but sometimes there are important things our life experiences teach us that get us to the right outcome.

That’s not activism. That’s real life.

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8 Responses to “Sonia Sotomayor and Elle Woods Have a Lot in Common”

  1. jodifur Says:

    love it!

    And you should totally see the musical!

  2. PunditMom Says:

    I can’t help it — I think Elle Woods has a lot to offer in the way of legal analysis! ;)

  3. Jen Says:

    Just found your site today — what great timing.

    What kills me about the right using her words about hoping a Latina could make better decisions than a white man, is that it’s one line from a thoughtful speech. I am tired of the soundbyte nation where no one takes the time to read more before making a judgment.

    Also, who’s to say a Justice Sotomayor wouldn’t empathize with a poor latina who committed a crime and say, “Hey, I’ve been there and I made different choices, you could have, too.” Empathy doesn’t mean a free ride. It speaks to motive. Motive is intent. Intent is the defining mark between one type of crime and another.

    And finally, I am so tired of hearing attacks on her intelligence. Because she’s “an affirmative action” choice, as some have said, she can’t possibly be smart enough, prepared enough? I want to just spit I am so angry!

    Ahhh… that felt great! Thanks for giving me a place to vent.

    I’m Jennifer, by the way. A SAHM, bleeding-heart, liberal, progressive, Democrat, Obama supporter, attentive, politics news junkie. :)

  4. Jake Aryeh Marcus Says:

    I didn’t have to play the video to know precisely which scene that was! Been the young female sexually harassed lawyer, had the bad perms – it speaks to me.

    While Clarence Thomas has more than proven that the experience of being marginalized doesn’t necessarily make one more sensitive to it – in life or on the bench – the oral arguments alone in Ledbetter and the more recent PDA decision make clear that the men don’t “get” it. Ruth Ginsberg needs someone else who knows what it feels like.

  5. Professor Kim Says:

    Well done, PunditMom! What concerns me is that too many people will never get to read the entirety of her remarks, and will have only the distorted sound bytes presented to them. Your perspective is so valuable because you know what it’s like to be in the courtroom. I think one of the challenges Judge Sotomayor faces is that she has spent most of her professional life writing for and speaking to lawyers and judges. She hasn’t been used to editing herself to prevent attack ads. The hearings will be interesting.

  6. fluoxetine Says:

    Well, she might turn around and shock everyone by showing she’s fully capable of the task at hand. Let’s hope that she does do exactly that, if only to minimize the criticisms she’ll be getting regardless of her capability.

  7. BAC Says:

    I would be curious to know your take on Sotomayor regarding reproductive health issues, LGBT rights and church-state separation. There doesn't seem to be much out there for review, and what does exist is a bit concerning. For example — I was chatting last night with a feminist lawyer friend about Sotomayor and the "Mexico City Policy" decision (Center for Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002)). While it's true her hands were tied in that case, my friend observed that Sotomayor could have at least tossed the Choice community a bone by saying something like: "unfortunately I must follow existing law …"

    What do you think?


    ps: I'm a big Elle Woods fan, too!

  8. Vérité Parlant Says:

    I didn’t have a problem with the analogy at all. I’ve used a couple of Elle analogies myself.

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