Two thoughts:
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.
USUPhilosophy 
Two recent posts at Feminist Philosophers Blog happen to touch on both points A (“the job of the justice”) and B (“no objective stance”):
http://feministphilosophers.wordpress.com/2009/05/28/the-impartial-chief-justice-on-the-other-hand/
http://feministphilosophers.wordpress.com/2009/05/28/sotomayor-and-standpoint-theory/
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I don’t see Sotomayor as a post-modernist so much as a legal realist. If a judge’s only duty was to read the law as literally as possible and apply, we would be in hell — mostly because of all of the matters the law (and especially the Constitution) is silent about. Supreme Court justices, in particular, have to make judgments, in coherence with the law, about what best serves the interests of individuals and the state. And, to be realistic, there simply is no way to do that without importing some of your own values into the decision. It’s not always ideal, of course (vide Plessy v. Ferguson), but that’s what we have to work with.
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I have to disagree. We have legislatures that we the people put in office to make laws to serve our needs, it is then up to judges to interpret the laws the legislature has passed. When there is an issue silent in the constitution, it is up to us the people and our elected officials to amend the constitution if necessary, not judges.
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jj – Rob, thanks for the reference to feminist philosophers. David Brooks also has an opinion piece in today’s NY Times that makes it clear that judges cannot be literally dispassionate. We’ve also commented on his piece at Feminist Philosophers.
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Jake, do you really think the legislature can enact enough laws so as to require no judgment calls on the part of the judges?
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So, Kleiner, do you think there is, in every instance, an objective truth about how law should be applied to any case? Or is it that, regardless of whether there is such a truth, you nevertheless think a properly judicial frame of mind is one which somehow structures its deliberations as if there is such a truth to be attained or approximated to?
I don’t know anything about law or jurisprudence, much less the theorizing about it, but I can almost equally imagine those respond affirmatively to the first question and negatively to the second question, as vice versa: those who think “yes, there is an objective truth about the matter, but the best chance of approximating it is not by aspiring to maximal detachment, but by styling oneself as a kind of craftsperson engaged in an activity requiring an art of disciplined responsiveness”; and those who think “there’s no such objective truth, but the best judgments are most likely to issue from a mind structured by the peculiar imperatives of impartiality the conviction that such a thing (objective truth) exists tends to generate.
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Justice is blind?
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First, Rob, I am with you – I don’t really know anything about law or jurisprudence. So I am talking out my ass a bit here.
I do not think that in every instance there is some objective truth to how the law should be applied (though I think there is in some, particularly for those laws that are clearly rooted in the natural law). That said, when it comes to SC justices, I rather like the originalist approach. Justices ought to strive for being dispassionate (they should keep themselves out of it). Frankly, I think a fair amount of success is possible on that front. Scalia was at USU some time ago, and virtually everyone who commented on his talk found it somewhat compelling.
See that thread here:
https://usuphilosophy.com/2008/09/15/comments-on-scalia-talk/
By the way, I don’t know that Sotomayor has styled herself as a “kind of craftsperson engaged in an activity requiring an art of disciplined responsiveness”. That sounds pretty good, and I wish all of our leaders would do such a thing, but I don’t know that we should make that presumption. Generally speaking, I’d rather die by the ignorance of the herd (majority rule in a democracy) than by the ignorance of a few tyrants. In fact, I think I am less likely to die by the herd because I have quite a bit of trust in what JPII calls “implicit philosophy”.
Point is, some of Sotomayor’s comments suggest that the courts should busy themselves legislating (she once remarked that the courts are “where policy is made”. And, of course, she has all but admitted that she will then be legislating from the point of view of her own particular narrative. Again, I prefer the originalist approach.
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Compassion can be a good quality for a judge. A judge that understands the circumstances of the crime may not force a victim to testify in court against the accuser(this sometimes happens in rape cases). Also the perpetrator may show sincere remorse for a crime and the judge may give a lesser sentence.
However, I do not understand how compassion factors into cases involving the constitution. Supreme Court cases concern constitutional issues. The decisions made there effect generations of Americans.
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“Compassion” may not be the right term, but whatever it is that conservatives criticize about the “liberal activist” Warren Court might do the trick.
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I think the hand-wringing about Obama’s “empathy” statement are really off the deep end. The critics seem to assume that Obama meant that empathy was ALL that a judge needed. Might he have been saying that empathy was simply ONE useful tool, one of many that make for a good judge.
On the other hand, “objectivity” is often placed before us by conservative critics of the Sotomayor nomination, as the ultimate characteristic of a judge. I will not argue from a philosophical perspective whether objectivity really exists. I’ll accept dispassionate reasoning (neutrality?) as another useful tool for a judge. Again, it is only one tool.
Truthfully, law is about ANALYZING and INTERPRETING texts like the U. S. Constitution. Only adherents of Natural Law believe that legal truth can be known without interpretation of texts. Interpretation is a task that requires many human faculties. If objectivity were the only required skill, then the best judge would be someone who had never lived in the world, someone who had been locked in a closet somewhere with nothing but food, drink, and the legal texts themselves. “Please interpret these laws with no outside input whatsoever.” That’s an absurdity. Interpretation of law ALWAYS involves knowledge of the texts AND the world in which they were composed.
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But as a regulative principle, as an ideal governing how one styles the structure of one’s deliberations, is it an absurdity? That, I take it, from watching Scalia and Breyer together on CSPAN, is part of what’s at issue between Originalists and Living Constitution types. The former think of objectivity so conceived as something to which one should try to approximate, demanding that one shed, as far as possible, the contribution of those “other tools”; whereas the latter, I take it, start off with an attitude toward those “other tools” as enabling, rather than merely distortive, features of interpretation. It’s not clear to me how such a fundamental difference can be adjudicated except by calling attention to the actual historical record (e.g., Toobin’s observation that “Roberts has served the interests, and reflected the values, of the contemporary Republican Party”).
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Scalia, I think, is a better representative of originalism – and has not always been in lock-step with the contemporary Republican Party (flag burning comes to mind).
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A pretty clear (and surprisingly non-critical) review of the battle of judicial philosophies here:
http://www.firstthings.com/on_the_square_entry.php?year=2009&month=06&title_link=sotomayor-the-subjectivist-124
It makes me think all the more that Sotomayor is a postmodernist of sorts.
One more point, at the risk of sounding like a eurocentric conservative crank. George Will makes this point in his current column:
“Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: ‘I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life’ — and had proceeded to speak of ‘inherent physiological or cultural differences.’ ”
Really, can you imagine?! Would we be explaining the comment away by placing it in context, etc etc? I rather doubt it. Instead he would have been absolutely crucified for it, it would have been regarded as an absolutely unforgivable remark, and he’d be dead on arrival when it came to confirmation. You can defend just about anything these days, so long as you do not defend the West.
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Oh, nice. That article captures quite clearly just what I’ve been trying to get at, and how it’s connected with issues concerning fictionalism about values. I agree with you about Scalia, too — again, just as a lay person who find entertainment in Scalia’s appearances on CSPAN, especially when joined by Breyer, whose constructivism sounds so wish-washy to me compared to Scalia’s entertainingly snappish defense of originalism.
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Whoops, I didn’t mean “constructivism” but “living constitutionalism”…
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Right after that now-infamous line, Sotomayor continues:
“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.”
The whole speech is available here.
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While Sotomayor’s nomination certainly begs the age-old question as to the role pragmatism/consequentialism should play in the methodologies employed by the justices, I think it also calls out a few of the more problematic aspects of statutory interpretation as well. I thing this is a good starting point: is there, implicit in textuality of the constitution, an assumption that strict adherence to its words will produce the best social policy? I guess I’m operating under the (postmodern) assumption that consequentialism is inevitable, i.e. the justices can and do discern the implications of the ways they rule in particular cases.
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