Sotomayor, Wisdom and Context
Many bloggers have made the argument that Judge Sonia Sotomayor’s famous “wise Latina” comment has been taken out of context. If you read the whole speech, they say, her statement is far more innocuous in context. As a result of these urgings, I read it. I’m not so sure it looks better in context.
The speech, first of all, is quite informal – she devotes entire paragraphs to the food and music of her childhood. It reads like a presentation made “among friends”. That said, Sotomayor makes the indisputable point that decisions made by judges are at least partially impacted by their biological characteristics and life experiences. Human judgment clearly plays a role in such decisions; hence the need for human judges, as opposed to “law interpreting algorithms” in the first place. A key point, of course, is that in the passage under consideration, she goes beyond this and asserts not just that her decisions would therefore be different than those made by a white male but “wiser”. What she doesn’t address is that if we take a relativist approach to making judgments, how can one judgment said to be wiser than another? What is the objective standard of wisdom to which she implicitly appeals when making her assertion?
This opens up what I think is the much more serious problem with her speech. She attacks an extreme position (a cartoon really): that there is literally no role for inherently subjective human judgment on the bench. That is, she disputes the cartoon of absolute objectivity. Fair enough. Of course, this is not exactly a new insight. It seems to me that a thoughtful jurist would then be compelled to find the limit condition to subjectivity, or else assert that there is no such limit. In other words, is anything asserted by any judge equivalently valid as an interpretation of the law as any other statement? Is there any such thing as law, really? Or is it all just rhetoric used in support of power politics? With no stopping condition the legal philosophy that refuses to accept the idea of objectivity becomes legal nihilism: the law is whatever those who have the loyalty of the armed forces say it is, or more precisely, act as if it is.
It seems pretty juvenile to me for Sotomayor to point out that the cartoon of perfect objectivity is obviously not realistic without describing how we avoid the alternative cartoon of nihilism. Now, as per the need for human judges, there can’t be an algorithmic answer to this question. But any judicial philosophy, it seems to me as a non-expert, ought to be centrally concerned with whatever frameworks, heuristics and rules-of-thumb are used to manage this tension. Sotomayor seems to be entirely oblivious to any of this in this speech.
What I found more interesting than the “wise Latina” comment was:
1) her suggestion that “national origin” might matter to judging as a result of “inherent physiological . . . differences” — a possibility that she “abhor[s] less or discount[s] less than my colleague”;
2) her point that diversity might be not just a matter of “cultural experiences” but perhaps “basic differences in logic and reasoning” (what might those be?).
— Stuart Buck · Jun 1, 03:58 PM · #
Not really. This seems reasonable to the engineers mind, to the libertarians mind, to the mind that believes that all reasoning must be a form of application of general principles to the specific – but not everyone’s thinking is as straitjacketed as Manzi’s is.
How about – sense? Wisdom? Experience? You know, the qualities she referred to in her speech?
— Chet · Jun 1, 04:00 PM · #
Entirely oblivious? From the speech:
“I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.”
— Rortybomb · Jun 1, 04:02 PM · #
Rortybomb:
Yes, but the point is “how” does she propose to do this? Simply saying what she does here tells us nothing inter-subjectively useful in establishing a common standard for decision-making.
Chet:
Sorry to fail to live up to your expectations again.
— Jim Manzi · Jun 1, 04:06 PM · #
Maybe with that 8 pounds of peanut butter on the top of her neck? Why don’t you try using yours, Manzi? Maybe wanting her to have engaged in an in-depth exploration of her judicial philosophy in a speech she made years before she had any indication she might be sitting on the Supreme Court might be a little unreasonable?
If you want to know how she’s going to do that, Manzi, why don’t you look at the rest of her speeches? At her record of jurisprudence? Complaining that she failed to do something in the one speech you’ve bothered to look at doesn’t strike me as rising to the level of intelligence usually evinced around here. I imagine her speech also failed to contain a smashing recipe for margaritas; that’s at least as noteworthy an omission as anything you’re complaining about.
— Chet · Jun 1, 04:17 PM · #
It’s not really good process to judge a person on one ambiguous line in one speech. Put yourself in her position and think about all the writing you have done. Would you think it’s fair for me to judge you based on any one line of my selection? I’m sure I could find something dubious.
I think if you look at her whole body of work you see that she is very cautious, legalistic, and moderate. More than I would like. And there’s no evidece of any judgements based on personal or racial considerations. Plus the her work record is much much less ambiguous than that line in the context of the speech. So I don’t really see what the point of harping on that on line is.
— cw · Jun 1, 04:20 PM · #
Not only that, but you could certainly find the omission of anything you wanted, which is exactly what Manzi has done here.
Idiotic.
— Chet · Jun 1, 04:38 PM · #
What she doesn’t address is that if we take a relativist approach to making judgments, how can one judgment said to be wiser than another?
Umm, actually she does address that, Jim. In the sentence immediately before the “wise Latina” one:
“First, as Professor Martha Minnow has noted, 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.” (emphasis mine)
Which is why I still think that the “wise Latina” line was little more than a self-deprecating joke. She says “there can never be a universal definition of wise”, and then calls herself wise. Either it’s a joke or she’s way stupider than even her worst detractors have claimed…
— Erik Siegrist · Jun 1, 04:48 PM · #
The first sentence in my post there is Jim’s… looks like I forgot to blockquote it. Oops.
— Erik Siegrist · Jun 1, 04:49 PM · #
“1) her suggestion that “national origin” might matter to judging as a result of “inherent physiological . . . differences” — a possibility that she “abhor[s] less or discount[s] less than my colleague”;”
That comment is so strange that I really have to believe that she meant “psychological” instead of “physiological.” Given the context it just seems much more natural, and the words are close enough that it is plausible she misspoke.
As to the original post, given that Sotomayor clearly thinks there is such a thing as a “wrong answer” in the law—c.f. her statements on Cardozo and Holmes—it seems reasonable to presume she isn’t a judicial nihilist. I don’t see you calling Roberts a nihilist for not having articulated a thorough judicial philosophy—and no, “balls and strikes” doesn’t count.
— salacious · Jun 1, 04:55 PM · #
Well, the New York Times reprints the speech as it was printed in the Berkeley La Raza Law Journal, and that published version had the word “physiological.”
— Stuart Buck · Jun 1, 07:05 PM · #
cw:
I wasn’t trying to make any judgment about her fitness overall. I was only reacting only to this speech as context for her comment (and should have made this clearer).
— Jim Manzi · Jun 1, 07:18 PM · #
Stuart, you’ve ellipsed inappropriately. The quote is: “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.” The obvious reading is that the possible “physiological … differences” go with “gender” and the possible “cultural differences” go with “national origins” (and “experience” goes with both).
[Ed. See comment below re: multiple Blars]
— Blar · Jun 1, 08:30 PM · #
No, that’s not the grammatical construction. As I read it, she’s saying that “gender and national origins” might matter b/c of “experience,” or that they might matter b/c of “inherent physiological or cultural differences,” and that she doesn’t “abhor . . . or discount” this latter possibility.
— Stuart Buck · Jun 1, 09:32 PM · #
She’s Obama with a less slippery prose style. We elected Obama without paying close attention to his own 460 page “story of race and inheritance,” and so Sotomayor is simply the less vague and ambiguous-sounding version of Obama.
— Steve Sailer · Jun 2, 10:19 AM · #
It’s unexceptional to point out that minorities, who identify as such, filter life through a type-b apperceptive fog — tuned to the qua, as it were, unlike the majority’s.
Wisdom can be found in that. Even a separate wisdom.
— Sargent · Jun 2, 01:28 PM · #
The “Blar” above isn’t me, the Blar who usually posts around here. I’m not sure what to make of that.
— Blar · Jun 2, 03:27 PM · #
That’s true, I (who left the Jun 1, 04:30 PM comment) am a different “Blar.” I also found it weird when I first saw comments here from a Blar who was not me, since I’ve been online under this name for almost 5 years. It’s strange when a distinctive-looking name is not unique. I have left a couple comments here before (which I guess the Jun 2, 11:27 AM Blar didn’t notice), but maybe I’ll just use a different name next time.
I still disagree with Stuart, but I don’t think we’ll get anywhere by arguing over it.
— Blar · Jun 3, 01:45 AM · #
Unless one is delusional, Sotomayer is a racist, pure & simple, as are all members of the treasonous La Raza by definition- since their motto is “For our race everything- for others, nothing”.
Her record is nothing to shout about either, and frankly
if you’ve heard her speakshe’s not what you’d call a towering intellectual.Eric Holder has some racial hangups and agenda too, calling us “cowards” regarding racial issues and letting-off Black Panthers who stood in front of a polling place with nightsticks.
And Obama himself has shown us a puzzling pro-Kenyan grudge against the British and has said some pretty odd things, even regarding his own grandmother… plus he’s the one who nominated all these kooks in the first place.
Whatever happened to the idea of a colorblind society? Team Obama define their world in racial terms all the time- and unlike any white people I know. I wouldn’t want to be judged by any of them after what I’ve heard come out of their own mouths- they sound like Jesse Jackson.
If Obama is going to go on with his “justice” agenda largely based upon race- the double standards need to stop… and NOW
http://reaganiterepublicanresistance.blogspot.com/
— Reaganite Republican Resistance · Jun 3, 11:28 AM · #