Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

  Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

  However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

  That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects.

  Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minow of Harvard Law School, states "there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

Personally, I consider it completely noncontroversial to suggest that a more diverse court might have taken a different view of cases like Dred Scott v. Sandford, Plessy v. Ferguson, or Bradwell v. Illinois.

  Appointing justices and judges is by intent of the founders a political act and I doubt anyone can name a single appointment no matter how esteemed the person that was not based in large part on politics -- both policy and broader.

  Her "credentials" are just fine. In fact, the bigger complaint some might have is that "credentials" as they are now defined play too big a role. Very few  regardless of ideology, region, gender, race or ethnicity from outside the narrow class of those who went to the right schools, served the right clerkships, practiced with the right kind of firms and had the right kind of prior governmental experience are in play.

   An argument can be made that minority woman who was co-opted into the "establishment" as a teenager and benefitted from its patronage her entire adult life is  a bit less likely to   truly bring a new and diverse perspective to bear than countless other lawyers whose backgrounds are truly outside the box.

He [Obama] was also impressed by her ability to win over colleagues on the Second Circuit