Sotomayor: The Olmos Lecture (1):
Liberal or Lefty?
Fallibilist or Irrationalist?

Probably no time for anything extensive today, unfortunately, but here are some quick points about a central bit of Sotomayor's Olmos Lecture.

Now, let me repeat that I'm neither pro- nor anti-Sotomayer at this point. I have no fixed opinion of her, and it's not clear that I have any right to an opinion of her. I'm not a lawyer, and I've never read anything she's written beyond the transcript of this talk, which I'm not sure ought to be taken very seriously. People say a lot of things in talks... I've heard reports that her actual decisions tend to be fairly narrow and cautious, and (if true) I think that's more important. People often explore or express philosophical views they don't really hold, or don't hold strongly, or don't hold for long. But we shouldn't pretend that there's no cause for concern in the Olmos address.

Quoting Sotomayor:

...No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, 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. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

Focus on this bit of the above:

Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, 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.

This is a crucial--and very confusing--claim. It's not technically an inference, but is, rather, an explanation of the fact that Judge Sotomayor believes something. However, such explanations are almost always used to indicate that the explanans constitute premises and the explanandum constitutes a conclusion. I don't see any way around interpreting this as an indication that judge Sotomayor accepts the following inference:

(1) To judge is to exercise power
(2) There is no objective stance, but only a series of perspectives (no neutrality, no escape from choice in judging)
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(3) The experiences of women and people of color affect their decisions

Now, this is weird for more than one reason. Here's a really simple reason why it's weird: the conclusion is likely to be true and fairly uncontroversial, but the premises suggest (but do not entail) some pretty heavy-duty, radical, and largely indefensible philosophical positions. First consider the conclusion, (3). Now, nobody ought to deny that our experiences affect our decisions--and that goes for us white boys as well as non-whites and non-boys. In fact, Sotomayor goes on to point to what seems like empirical evidence for the claim:

The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.

(She also offers one anecdote, though anecdotes of course don't help.) So: right, our experiences of all kinds (and not just those associated with our race and sex) tend to exert some influence on us and our decisions. Nobody will dispute this, I presume.

But now consider the premises. Premise (1) says that "to judge is to exercise power." Now, again, on one reading there's nothing wrong with that at all, but it's the kind of claim that reeks of far-left quasi-philosophical nonsense. The benign reading is:

To judge is to do many things, and one of those things is to exercise power.

True and uncontroversial.

But, again, such claims are common among the Po-Mo/cultural studies/critical theory set, and are often used to express claims like:

All judging is is an exercise of power

or:

Judging is primarily nothing more than an exercise of power

The intellectual far left is obsessed with nothing if not with power. Such people want to deny the very possibility of principled, reason-guided decision-making. There may be no more pernicious view in existence.

Why?

Well, first it's simply flat-out false, and not even close to being true. Among other things, acts of judging are also often (and often primarily) attempts to render just decisions. They are also often acts of actually rendering just decisions (and that's often what they are primarily). They are often attempts to render fair resolutions of disputes, and they are often acts of rendering genuinely fair resolutions of disputes. They are often attempts to correctly and objectively apply the law, and they are often acts of actually correctly and objectively applying the law. One thing is certain: they are not always and only exercises of power. (Though, again: it's not clear that that's the claim being made.)

In addition to being false, the view is pernicious, and it's pernicious for the same reason that so many similar views on the intellectual left are pernicious: they entail that one ought not even attempt to be rational, fair or objective. They elevate prejudice to a virtue. Recoginzing that we ought to be fair, but often fall short, is one thing. Asserting that we need not even try because our quirks and prejudices are perfect as they are, or are insurmountable, is not just nonsense, it's dangerous nonsense. So if judge Sotomayor believes that--and I must say that I find it very unlikely that she does--then she cannot be placed on the Court.

Now consider premise (2): There is no objective stance, but only a series of perspectives (no neutrality, no escape from choice in judging. Again, this may mean at least two things. It may mean something like:

(O1) We're not normally capable of achieving perfect objectivity

or it might mean:

(O2) We can never achieve any degree of objectivity no matter what we do.

(O1) might be true; (O2) is certainly false. People are often objective, sometimes astonishingly so, sometimes, apparently, perfectly so. Humans do have a wide variety of quirks and prejudices. But when I add 2 and 2, none of these quirks and prejudices have any significant effect on me--not in most cases, anyway. So it's in no way clear that we can never achieve perfect objectivity...but we needn't defend nor even care about that conclusion.

Remember that we aren't interested in whether perfect objectivity is possible. We're interested in whether objectivity is possible. A common error here is to accept the following inference:

(i) Perfect objectivity is not possible
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(ii) Objectivity is not possible

But that inference is no better than:

(i) It's not possible to be in perfect shape
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(ii) It's not possible to be in shape

Objectivity, like fairness and neutrality, is largely a matter of degree. We are obviously capable of being objective at least some times and at least to some extent. More to the point, we are obviously capable of being sufficiently objective to accomplish many of the goals we need to accomplish. That's how we got to the moon, for example. So, strictly speaking, (2) seems false. There is objectivity, and there is neutrality--that is, we can often be sufficiently objective, and we can often be sufficiently neutral.

One thing that helps judges be neutral and objective is that they are very often disinterested in more than one sense. Even the leftiest judicial theorist must admit that a male judge adjudicating a dispute between two other males, neither of whom he cares about nor relates to, can have a fairly easy time being objective. In fact, using disinterested parties to adjudicate disputes is a method we've developed in order to get fairer and more objective decisions. And note: the lefties in question must assert that our judicial system is no fairer than a system in which people are actively encouraged to judge in an idiosyncratic and prejudicial manner. And that's insane.

Many of our decisions are impartial simply because we are indifferent to the dispute. Also, some people are better than others at transcending their positions and setting aside their prejudices. Those people almost certainly make better judges. Perhaps adjudicating disputes between a person you related to and a person you don't is harder, but it's certainly not impossible to put your feelings aside and judge on the merits of the case. People do it all the time. Outside of court, with regard to ordinary affairs and disputes, I've done it and you've done it too.

However, (2) might really mean something weaker and less obviously false. It might just mean: we're never perfectly objective (though we might be objective in some ways and for some purposes); I might take up a neutral stance with regard to some question Q, but that's not a God's-eye position about all things. There will still be other questions about which I'm non-objective. Meh. That's not perfect, but it's reasonable. It's a bit of a stretch as an interpretation of the actual words, but if I had to guess, I'd guess that it's probably what Sotomayor means. But if it did turn out that she meant the former thing, i.e. meant that no measure of objectivity or neutrality was possible, again she'd have to be kept away from SCOTUS. But, again, I seriously doubt that's what she thinks.

Finally, let's cut to the chase. Smart money says that good judges are often appreciably objective; but smart money also says that they're also significantly non-objective. Since we have excellent reasons to think that quirks and prejudices frequently affect judges, we have good reason to make sure that the quirks and prejudices of the court are in some sense representative of all of our quirks and prejudices. And that means more women and more minorities on SCOTUS. To err is human. The liberal position for diversity on the court ought to be based on a recognition of our imperfect rationality. It ought not be based on any crackpot theories that try to denigrate reason and elevate prejudice and irrationality to virtues.