One of my favorites at NRO, Andy McCarthy, finds a unique angle on a much discussed issue. He explains why many of Sotomayor’s statements would disqualify her from serving on the average jury. The opening clip:
In every trial – every single trial – judges solemnly instruct American citizens who are compelled to perform jury duty that they will have a sworn obligation to decide cases objectively – without fear or favor. If a person is unwilling or unable to do that, if the person believes he or she has a bias or prejudice, especially one based on a belief that people are inferior or superior due to such factors as race, ethnicity, or sex, the person is not qualified to be a juror. Indeed, prospective jurors are told that they are not qualified if they harbor even the slightest doubt about their ability to put such considerations aside and render an impartial verdict. If the judge or the lawyer for either side senses bias, the juror is excused “for cause” – the parties are not even required to use their discretionary (or “peremptory”) jury challenges to strike such a juror; rather the judge makes a finding that the juror is not fit to serve.
And the conclusion:
Would Judge Sotomayor be qualified to serve as a juror? Let’s say she forthrightly explained to the court during the voir dire (the jury-selection phase of a case) that she believed a wise Latina makes better judgments than a white male; that she doubts it is actually possible to “transcend [one's] personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law”; and that there are “basic differences” in the way people “of color” exercise ”logic and reasoning.” If, upon hearing that, would it not be reasonable for a lawyer for one (or both) of the parties to ask the court to excuse her for cause? Would it not be incumbent on the court to grant that request?
Should we have on the Supreme Court, where jury verdicts are reviewed, a justice who would have difficulty qualifying for jury service?