6.02.2009

Transcending Personal Sympathies in Judging

First, read Sotomayor's much-discussed 2001 speech about her Latina identity.

I think I'm discovering something, with help from a friend. I'm very interested in understanding this debate (starting, most recently from the Sotomayor nomination) between those who believe, with Miriam Cederbaum, that we can judge (or, "Judge," in Sotomayor's conveniently explicit case) in a manner that "transcends personal sympathies" and those who believe, with Sotomayor, that that kind of transcendence is probably not possible, and not even desirable. I am convinced that this is a very important and easily-accessible metaphor of sorts... a kind of "way in" to a conversation that we could all benefit from. At some level, we all face the question of "judging." I believe that everybody can clarify their epistemological theory -- a process that seems to me overdue as postmodernism flags -- by studying this Sotomayor flap, and that's why I'm following it so closely.

In her speech, Sotomayor describes the plurality of opinion that exists even among specific racial groups: for example, she cites Clarence Thomas as representing "a part but not the whole" of African American culture.

For me, this begs a question: is there such a thing as African American culture? What African American culture is there that incorporates the views of both Clarence Thomas and (say) Michael Eric Dyson?

Inconvenient (and difficult) as it may be, this cannot be a rhetorical question. Is there some similar taste in food, music, or dress that Judge Thomas and M.E. Dyson share? Would an African American person not sharing in that taste (surely there is an exception in every case) thereby be not-participating in African American culture? And, incidentally, can a person who is not African American share that taste with Judge Thomas and M.E. Dyson? -- if they do, does that mean that they "understand" or "participate in" African American culture?

These questions ought to reveal the slippery nature of racial/cultural designations -- a slipperiness which, in my opinion, ought to be fairly obvious. Nevertheless, racial/cultural categories like African American (or Latina) have been increasingly used as "qualification." The undergrad. case at U of M (or was it the Law School) stands out in recent memory: affirmative action was deemed legal because racial/cultural experience was deemed to constitute desirable qualities in candidates. But if Judge Thomas and Prof. Dyson both enjoy (forgive the unavoidable stereotype here) jazz music, does that qualify them against a white candidate who also enjoys jazz music?

Judge Sotomayor claims that her cultural experience in America as a Latina influences her judging, and defends that as proper. When I ask, specifically, what she means by "Latina" and how it will influence her judging, I am not being cheeky -- and I'm not trying to be any more difficult than is necessary.

Here's why: if Sotomayor's Latina-ness informs her judging, then we must admit the possibility that Justice Breyer's whiteness informs his judging. If that is the case, it's difficult to imagine how a 9-white/male court decided Brown v. Board of Education (or any other civil rights case)... but more importantly, it ought to sound a bit uncomfortable: whiteness sounds dangerous (as it has been, historically).

In her 2001 speech, Sotomayor makes reference to her "Latin soul." I want to know what that means, especially considering her speculation that "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." Inherent physiological differences? Isn't that what Jimmy the Greek got fired for? I ask for specifics, and potential Justice Sotomayor responds (from 2001), "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."

I think I understand her reasoning. Sotomayor essentially assumes that white judges judge differently "based on their gender and their white heritage." And perhaps they do. But if Sotomayor plans to change the highest ground of American justice, it seems worthwhile to ask, exactly how? If we have had "white-justice" until now, what will changing it look like and feel like? Will it feel better for non-whites than it will for whites? Or will it somehow be better for everyone? Is Justice a zero-sum game?

One of my final points: Sotomayor closed that speech by acknowledging the danger of "relative morality." I'd like to underline that danger. At one point in her speech, Sotomayor said,
I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach.
Those "great moments of enlightenment" Sotomayor refers to are decisions like Brown v. Board of Education. But without an overarching idealist perspective, the only thing that makes any history great -- indeed the only thing that makes justice justice -- is what was decided. That is, if morality is relative as Sotomayor claims, there is nothing inherently more just about the Brown v. Board of Education decision than there was about the Dred Scott decision.

What am I asking is that we identify the mechanism that makes our justice. In the past, supreme court justices decided cases against women and minorities who were filing in "rights" cases. Is there nothing in us that tells us that those decisions were morally wrong other than the fact that a later court overturned those early decisions?

Perhaps it was the infusion of personal perspective, the early inability to transcend the white-male perspective, that created the violation of the rights of women and African Americans (and others) in the first place -- maybe it was transcendence of personal sympathies that eventually allowed for decisions that we now find more agreeable.

1 comment:

Mark said...

The whole point of the law is to "transcend personal sympathies" -- in other words decide cases based on some fixed standard rather than the situation of the individual or the personal feelings of a judge. Perhaps biases will always be around. But I do not think the solution is to embrace bias and prejudice as justice.