I find it interesting that the main Republican complaint against Supreme Court nominee Sonia Sotomayor is that she seems inclined to use subjective standards in reaching judicial decisions. Much ire seems to surround her comment that “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”.
But what is so wrong with this comment in the first place? It is preposterous to imagine that a judge’s background and life experiences have no influence on his or her decisions. Do we really believe Scalia and Thomas are mechanically applying the rule book and not bringing their own beliefs or ideological preconceptions to the table? Hardly. But when the pseudo-conservatives hammer away at “activist” judges, what they really do not like is activism in the wrong direction. They are perfectly content with activism when it suits them. As Sheldon Whitehouse noted, “For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights”. And they were cheered for doing by many who rail against “judicial activism”.
There is of course nothing wrong with this. As one who holds the natural law as superior and antecedent to the positive law, I would fault all who appeal to positivist absolutism, to a false sense of objectivity. But even those who veer in the positivist direction must be aware that value judgement plays an essential role. But what kind of judgment? All tasked with care of the common good (including judges) need empathy, solidarity with the least among us. It is certainly the case that a Latina woman from an underprivileged background will see the world through a different lens than a privileged white male. Of course, subjectivity depends very much on the individual (we see little empathy for the little man from Clarence Thomas), but it is surely possibly to make some general arguments.
Consider John Roberts. Legal expert Jeffrey Toobin made a very telling comment. He noted that “”in every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff”. Now, we can pretend that he was mechanically applying the law in each case, but that is not very credible. Do judges get a pass from the requirements of social justice, solidarity, the preferential option for the poor? Nothing in Catholic social teaching suggests so.
I have no problem with criticising a judge or a nominee for his or her approach to abortion, or to any other aspect of the moral law, which includes social justice — as the recent encyclical points out, there is no artificial divide in Catholic social teaching. Just don’t pretend to be doing so on the basis of some contrived positivist objectivism.
Finally, there are some who claim that Sotomayor’s comment is somehow racist. Again, this is not credible. As Eugene Robinson put it, this is based on the false assumption that “whiteness and maleness are not themselves facets of a distinct identity”. In other words, “being white and male is seen instead as a neutral condition, the natural order of things…any “identity” …has to be judged against this supposedly “objective” standard”. This is why nobody batted an eye when Samuel Alito appealed to his background as the son of Italian immigrants as affecting his rulings, and yet are inclined to over-react when Sotomayor takes this in another direction entirely.
MM, I agree with every point. We can now begin to identify how vertical and horizontal integration or lack of lack of integration of the different brain systems influences sense of self and problem solving style.
I wish I could remember where I read this study but I am too tired to look right now. However, those who identified themselves as conservatives and liberals where given a series of distressing interpersonal situations and were asked to select a choice that would best represent their resolution while at the same time their brain responses were being recorded with an MRI scan.
Conservatives generally were recorded as being heavily influenced by the left prefrontal area of the neocortex. Liberals, on the other hand, were shown to be influenced by the middle prefrontal and insula regions especially on the right side of the brain that are involved in looking inward, reflection, and empathy.
Another area of the brain of significant interest in looking at the difference determined by gender is the area of white matter called the corpus callosum which connects the different brain regions both vertically and horizontally. Women have a larger corpus callosum which theoretically provides more and better communication between both halves and thus they would potentially have a more global understanding of events.
I believe that wisdom can only come about through being open to feeling the effects of suffering and that can only come about through the choice to be vulnerable.
I agree completely, and find it odd that the Republicans think they can win elections by explicitly defining themselves as opposed to empathy. But, it’s Sonia Sotomayor, not Sandra ;)
As Eugene Robinson put it, this is based on the false assumption that “whiteness and maleness are not themselves facets of a distinct identity”. In other words, “being white and male is seen instead as a neutral condition, the natural order of things…any “identity” …has to be judged against this supposedly “objective” standard”. This is why nobody batted an eye when Samuel Alito appealed to his background as the son of Italian immigrants as affecting his rulings, and yet are inclined to over-react when Sotomayor takes this in another direction entirely.
Yes.
Good catch, Mickey, thanks!
There have been only four people since the founding of the Supreme Court that have not been white males. Does this not indicate some kind of distinct identity?
Yeesh, Gerald – I hadn’t realized it was quite that bad.
I see movement conservatism’s agitation against Sotomayor as being aimed at the subset of their base that fears a racial backlash from long-oppressed minorities.
I heard a remarkable interview on NPR where a white woman in Appalachia was describing her fear that blacks would “get revenge” on white Americans if Obama were to win the election. (I hope she feels reassured by the ensuing peace.)
There is a darker piece of the conservative coalition that sees the world as a competition between races, and any gain by hispanics is perceived as an automatic loss to whites. Such zero-sum thinking is a pretty strange way of viewing the world, in my view, but it is a view that some have.
This is from a mailing I subscribe to that sends talking points to right-wing bloggers. It is instructive:
Notice the narrative there: Obama is “assaulting equal justice” by having the Senate “sneak through” a bill that would make assaulting someone due to their race a worse crime than assaulting someone where race is not a factor.
The idea (as I understand it) behind hate crimes laws is that assaulting or harassing someone because of their race is wrong because it undermines, in a de facto way, the right of the victim to live/work/play where he wants. It is NOT just a simple assault; there is also a message being sent that the victim’s Kind Does Not Belong Here, which profoundly undermines “equal justice”.
Judging by your piece on Wiegel, MM, I think you’ll appreciate this:
http://www.nytimes.com/2009/07/15/opinion/15dowd.html
Also, here’s something else I think will interest you, MM:
http://www.worldaffairsjournal.org/2009%20-%20Summer/full-Bacevich.html
If American Catholics’ refusal to reconsider the nature of their country’s foreign policy in light of recent events AND in light of the moral reflection shone on it by this great Catholic novelist so many years ago doesn’t PROVE they are imbued by the vulgarized Calvinist notion that they are “saved” by their country’s “good intentions,” I don’t know what does.
However, I will have to admit that I am coming to regret my support of Obama: the “change” I wanted isn’t forthcoming, and the Repugnant Party in America isn’t any better. I think I’ll remain an expatriate now forever.
“There have been only four people since the founding of the Supreme Court that have not been white males.”
There have been zero priests since the founding of the Catholic church that have not been males. ;-)
in every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided
Note not in every case, but every “major” case. One wonders how he came to that evaluation.
As far the racist accusation goes, whether some people recognize that being white and male is as much as an identity as Latina is irrelevant. She asserted that her identity and experiences would help her render a better judgment than a white male. Whether you call it racism or not, it’s a fairly bold statement which needs to be challenged, as it assumes the Latina background to in fact be richer than the white male background (hence the better decisions).
For me the most interesting part of Sotomayor’s speech was not the wise Latina remark (although I think MM’s attempt to excuse the remark kind of misses the point).
Rather, the most intriguing parts of the speech were the references to the possible “inherent physiological” differences between the races which might involve “basic differences in logic and reasoning.” I wish that someone on the committee would use their time to explore her thoughts on this subject in more detail, rather than simply rehashing the one remark over and over.
It has always been obvious to me that Latin@s are wiser than everyone else, period. :)
I don’t think that her comment was racist at all. I would welcome a Wise Latina (or Black or Polish or Italian) Woman on the Supreme Court
What I do object to and what I find humorous is what I assume was her attempt and now other’s attempts to portray Sotomayor as “a Wise Latina Woman”. Sotomayor as a graduate of an elite Catholic high school, Princeton University and Yale Law School has far more in common with Roberts, Alioto, and the Presidents Bush then she does with any Wise Latina Woman. To use Pete Seeger’s terminology she has gone through the establishment’s educational system and was spit out in her “little box”. In her case she was spit out in one of the little liberal activist box – albeit one with brown packaging and an Hispanic name on the label. Sotomayor probably fits more into the “American white male” mold than did my second generation Polish father with a high school education.
MM, you bring up Clarence Thomas. How many of these same people who are praising Sotomayor because she would bring the perspective of “a Wise Latina Woman” to the bench fought Clarence Thomas although he would have brought the perspective of an “African American raised by his poor share cropper grandfather to the bench”. If Sotomayor was a member of Catholic Altar Society or a Pro-life group many of her current supporters would be fighting her tooth and nail even though she may have belonged to both of these groups because of her ethnic background.
Simply stated, supporters of Thomas and Sotomayor don’t really care about diversity on the bench. They care about the judicial decisions the nominees will render and everything else is just window dressing.
Awakman, that’s all they SHOULD be caring about, don’t you think?