A) A friend of mine emailed me this concern this morning (a quotation from Obama, and then my friends words, not mine):
‘This says it all: “It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court.” (Obama)
There is a profound epistemological conviction evident here: the law is not about judgment as much as it is about understanding. Scary. I may sympathize and empathize with many people who are, like me, sinners who need mercy. However, the job of the justice is not to empathize or sympathize. The job of the justice is to read the law better than 99.9% of the population — and to do so in a dispassionate manner. Moreover, it is the job of the justice to do so in a way that is faithful to the system of checks and balances that the constitution recognizes balances power between the three branches of government.’
B) A few quotations from Sotomayor:
i) “Justice [Sandra Day] 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,” she declared. “I am . . . not so sure that I agree with the statement. First, . . . 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.”
ii) “I accept the proposition that…as…Professor Martha Minow…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.”
The lesson from A and B, taken together? Sotomayor is the ultimate postmodern judge. There is no real objective truth, it is interpretation wall to wall. Any claim to truth is naive to the fact that power relations have always already infiltrated any judgment, and in fact have always already determined any judgment. While we might want to aspire to dispassionate impartiality, this is ultimately impossible since it is narrative and only narrative that matters. What is more? Some narratives are better than others (like latina ones over white) – even though we’ve already admitted as good pomos that we have no real reason for saying such a thing.