By D.J. TICE
In a much-discussed 2001 speech at Berkeley, Supreme Court nominee Sonia Sotomayor singled out a Minnesota case as an example of the kind of difference diversity on the bench can make.
Sotomayor's views about the role life experiences can and should play in judges' decisionmaking will no doubt get a spacious airing during this week's Senate confirmation hearings -- which makes her Minnesota case in point of some interest.
It was in the Berkeley speech, after all, that Sotomayor made her most celebrated and controversial remark. "I would hope," she said, "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."
A few paragraphs earlier, she had said this:
"The Minnesota Supreme Court has given an example of this [diversity among judges making a difference]. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child."
Finding a case that fits this description has proved a bit of a challenge. White House staff informed me that Judge Sotomayor had named the wrong court. The decision in question, they say, is Hall vs. Hall, a Minnesota Court of Appeals ruling from 1987. (The Minnesota Supreme Court declined to review it.)
Even assuming that's the right case, Judge Sotomayor's description was imprecise. In Hall, a 14-judge "en banc" appeals panel upheld a lower court's protective order on a 7-7 vote. Four male judges joined three female judges on the prevailing side. Seven judges, all male, dissented.
All the judges agreed there was no evidence -- in fact, not even an allegation -- that the father had ever abused his children.
The divorced couple's relationship, however, was horribly troubled. Several years earlier, the husband had beaten his wife "on numerous occasions" and threatened her life, at least once holding a gun to her head. He had undergone court-ordered domestic abuse counseling and the violence had stopped. Threats and verbal abuse had not, according to his ex-wife. That led to the new protective order, limiting the father's visitation rights, which he appealed.
To read the opinions in Hall vs. Hall is to be reminded that legal disputes are almost always too complex and challenging to be captured in a one-sentence description. The dissenters were chiefly bothered by what they believed was the denial of due process for the father. The hearing that produced the protective order, they wrote, was superficial, and the district court had produced no specific findings of fact to substantiate the continuation of real danger to the wife or, above all, to the children.
The court's ruling, on the other hand, authored by Judge Harriet Lansing, who still sits on the appeals court, found the hearing sufficient and focused on the frightening nature of the threats that allegedly persisted. It noted the potential harm to the children if such strife continued in their presence.
What to make of it? Judge Sotomayor seemed to suggest that the genders of the judges influenced their view of this case. I wouldn't jump to that conclusion. But looked at that way, Hall vs. Hall suggests a couple of observations:
• The male judges who considered this case ended up rather closely divided on it. Counting the judge who issued the disputed order, 12 male judges pondered the Halls' miserable and scary situation. They split 7-5 in favor of the ex-husband. All three female judges on the panel ruled for the ex-wife.
• Does that suggest that the women judges, because of their gender, may have had a fuller understanding of the danger and trauma women and children suffer in the face of threats and ugly tirades from a man with a history of violence? And that they helped a decisive number of their male colleagues comprehend it? It certainly seems possible.
• Or is it possible that "empathy" for certain litigants (to use a term often employed lately in these discussions) could sometimes lead a judge to overlook basic considerations of legal rights and fair play? "It is because of the great powers of the courts in these [domestic abuse] cases that due process is vital," wrote dissenting Judge Gary Crippen, who retired from the Minnesota court in 2002.
It is because of the great powers of the U.S. Supreme Court that a vigorous exploration of Judge Sotomayor's thinking in these matters is in order.
D.J. Tice is the Star Tribune's commentary editor. He is at email@example.com.
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