Wednesday, May 27, 2009

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)
.----------------------------------------------------------------------------------------------
(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
.------------------------------------

(ii) Objectivity is not possible

But that inference is no better than:


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

.---------------------------------------
(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.

17 Comments:

Blogger Joshua said...

I think you'll find this interesting: http://obsidianwings.blogs.com/obsidian_wings/2009/05/sotomayor-the-record.html

That post references another post (I love the internets) concerning one of Sotomayor's more high-profile dissenting opinions, in which she argued that an NYPD officer's off-duty (and anonymous) hate speech was not valid grounds for his firing. Her argument implies that she believes in a very broad interpretation of First Amendment rights, which I'm inclined to support. Unless someone is sending out white supremacist pamphlets one company time or on company letterhead or else is in a position where his beliefs affect his ability to perform his duty (none of which seemed to apply in this case), I'm not sure they should suffer consequences at work.

This doesn't necessarily shed light on your concerns, but it does provide some reason to think that Sotomayor is a very sensible and prudent choice to put on the Supreme Court.

Incidentally, to respond to this:

"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."

This kind of situation provides a great example of why, as you said, it's important to have more women and minorities represented on the Supreme Court. It may be more difficult for a male judge to be objective in, just for the sake of example, a divorce case which pits another man, to whom he has obvious points of relation and sympathy, against a woman, to whom he doesn't necessarily. It's certainly not impossible for a male judge to be objective and neutral in these cases, but having a female judge to balance out possible unconscious bias by male judges is an obvious good.

The other important scenario which I've seen brought up would be rulings about the "conscience clauses" that permit pharmacists to deny valid prescriptions for birth control medication. A male judge certainly could be objective, but his distance from the problem might also prevent him from understanding why the issue deserves a hearing at the Supreme Court level. For this reason, having a more sympathetic perspective on the court might be relevant to decisions of standing.

To hit the subject of your post somewhat more directly, I would say that the point Sotomayor makes in her lecture -- that perfect objectivity is impossible -- is a relevant fact to keep in mind, even though we might consider it to be trivially true. Any given judge might be able to maintain sufficient objectivity on a wide range of issues, but they won't be able to maintain sufficient objectivity on all issues. (The latter being a reasonable interpretation of what "perfect objectivity" might look like in the real world.) Thus, diversity on the Supreme Court is a worthwhile goal in itself, just to ensure that, though each individual justice may have their own gaps and blind spots that prevent perfect objectivity, those gaps will be covered over in some sense when the Court is viewed as a whole.

12:30 PM  
Anonymous Montag said...

supreme court justices don't seem to be extraordinarily objective. the idea of these judges excluding their backgrounds and views just doesn't jibe with the high occurrence of 5-4 decisions consistently split along predictable ideological lines.

3:16 PM  
Anonymous Montag said...

i might add to my previous comment that this doesn't mean "objectivity is not possible," but that it looks like s.c. justices and the politicians who appoint them probably aren't overly interested in objectivity.

3:22 PM  
Blogger Jim Bales said...

WS,

When a sitting judge quotes the line "to judge is an exercise of power", I presume she means the verb "to judge" to mean "to do the job of a judge".

When one is a judge, one judges. One's judgements, however, are obligatory and binding on the parties in the case, with the full coercieve power of the government available (if need be) to enforce them.

So, I read "to [be a] judge is an excerise of power", to be a simple statement of legal fact, not a sociological statement.

Reading your reaction: "it's the kind of claim that reeks of far-left quasi-philosophical nonsense" suggests to me that you are finely attuned to far-left quasi-philosophical nonsense -- quite necessary, given your profession

However, in this case, I believe that the resemblence (or reeking) is coincidental, and your benign reading is the one that is most likely reflects her beliefs.

Best,
Jim

5:07 PM  
Anonymous Anonymous said...

Jim hits it on the head. To judge, as a judge, is to exercise power, as the parties are bound by your judgment. That is what she means.

A good judge applies the laws and facts of the case, and a great judge explains, in fine detail, the justifications for the particular application. Sotomayor is famous for using footnotes to justify even the most accepted of legal precepts, she is meticulous to a fault.

With regard to objectivity, how about the Ledbetter case. In that case, a predictable 5-4 decision, 5 justices determined that the risk to companies of facing stale lawsuits from long-ago injured plaintiffs outweighed the rights of the plaintiffs to seek justice. The 5 majority justices admitted that discrimination had taken place, but denied the plaintiff relief based upon what the results could be for the business world.
Ledbetter failed to discover or press her claim within the 180 days allowed by the statute.

A defensible conclusion, yes. Ojbective? I would like to see some argument that this was an objective decision as opposed to a more run-of-the-mill balancing of interests with a determination that did its best to get a fair a predictable result.

An affinity for corporations or plaintiffs is what every single person will have in every case. Trying to be objective is a noble endeavor, but in the end, a choice must be made, and to claim that these choices can be objective is to ignore the human experience (which is to say, ignores the judges, which is what Sotomayor is candidly addressing).

Sorry if this is double-posted, I really hate this comment system (though I suppose it is needed).

Peace, abject funk

8:50 PM  
Blogger Winston Smith said...

Greetings, Funk. Good to see you back.

I'd just point out: objectivity is important in balancing interests, too.

And more importantly:
Nobody has every claimed anywhere in the history of mankind that judges and courts are *always* objective. They may pull shenanigans with great frequency, for all I know.

My point is just: impartiality is not impossible. It is, in fact, something we're able to approximate if we try hard. So we shouldn't falsely elevate partiality and prejudice to a virtue.

9:06 PM  
Blogger Jim Bales said...

WS posts:
My point is just: impartiality is not impossible. It is, in fact, something we're able to approximate if we try hard. So we shouldn't falsely elevate partiality and prejudice to a virtue.I agree. We can, with effort, be sufficiently impartial for our system of justice to be effective.

However, I think that when Sotomayor says,
" I further accept that our experiences as women and people of color affect our decisions.", she means something different than simply "partiality and prejudice".

Let me give two examples where my personal experience revealed to me a partiality and prejudice that I held but was not particularly aware of.

Example 1 (a minor one).
When I was an undergraduate, I knew women who objected to the use of the masculine pronoun by default. I did not see any reason why they should find that usage as off-putting as they claimed it was.

Then, as part of a PE class on aerobics and general fitness, I had to use as a textbook a book on fitness that used the feminine pronoun throughout. (This was reasonable, as the book was marketed for women, not men.)

Every time I read a "her" or "she" in the text, my visceral reaction was, "but what about me!?!?"

That experience gave me the perspective to understand the objections my friends had raised about the masculine pronoun. Without that experience, my judgment of the issue was not (I would contend) objective, because I only felt empathy for the side I had experienced.

Example 2 (more major).
I once worked in a small organization where the boss & I were the only people with a Ph.D. I found it difficult to work with my boss because, during meetings of the staff, he would at times peremptorily shut me down.

After a while, I realized that what triggered this behavior from him was my correcting him in front of the other staff members. Others correcting him did not get squelched as quickly, or as intensely, as I did.

I told my then-girlfriend of my realization and her response was, "So, he treats you like a woman! When you correct him, he perceives you as a threat. If you are right & he is wrong, you are really a threat!"

I spent some time observing men and women dealing with such situations in a public setting, and realized that my girlfriend was fundamentally correct.

I also spent some time reflecting on my own behavior and realizing that I, too, reacted more strongly to silence critical comments from women than from men.

Now, when a woman describes being shut-out of a conversation by a man without cause, I am far more likely to believe her than I would have before my experience with that boss.

If I had to adjudicate such a situation, I believe I can be more objective now than before, simply because I am aware of both my old prejudice (i.e., women tend to attribute sexism to poor treatment that was deserved) and my new prejudice (i.e., men tend to shut down women who appear to be a threat). With that awareness, I can try to suppress the prejudices and consider the specifics of the case at hand.

This leads us to what WS pulls out as Sotomeyor’s Premise 2:
There is no objective stance, but only a series of perspectives (no neutrality, no escape from choice in judging.

I read this as saying: “As a judge holding power over the litigants in a court of law, one must start with the recognition that each party in the suit brings their own perspective to the facts, and that the judge also brings a particular perspective to the facts at hand. None of these perspectives can be presumed neutral. None of them are presumptively objective. As a judge, one must first identify one’s own perspective, and that of each litigant."

"A Judge, wielding the power of the bench, must choose between perspectives, judging which particular perspective will be given sway over which particular parts of the decision that must be handed down."

11:35 PM  
Blogger Winston Smith said...

I had an almost identical experience with pronouns, Jim. I didn't get it, then I got on the other end of it, now I get it. And *this is roughly why I'm for a diverse court.* But those kinds of reasons have little to do with what S.S. said in the Olmos address.

And: what I got was a *more neutral, objective view of things*, and so did you.

You write:

"I read this as saying: “As a judge holding power over the litigants in a court of law, one must start with the recognition that each party in the suit brings their own perspective to the facts, and that the judge also brings a particular perspective to the facts at hand. None of these perspectives can be presumed neutral. None of them are presumptively objective. As a judge, one must first identify one’s own perspective, and that of each litigant."

Ah, you fair-minded, well-meaning liberals...so naive about the illiberal left... [Deploy condescending tone here]

What you write is a reasonable thing to believe, of course. Perhaps that's what SS thinks. I have no idea.

But let me point out you seem, to some extent, to be addressing a straw man, no? I mean, do you think that *all* she means is that no party to the dispute is in a *presumptively* objective position? 'Cause that's a very moderate, reasonable claim that hardly needs to be even expressed, I'd say.

All I'm saying is: that's not what a huge chunk of the intellectual left means when it says such things. What it means is something more like: we all have our perspectives, our "situatedness"(tm), fixed in us by the Holy Trinity of forces (race, sex, class). We are locked into those perspectives. No measure of objectivity is possible. In fact, any appeal to objectivity is inevitably a smokescreen to slip richwhitemale values over on everybody else. So it's o.k. for us (women and minorities) (though not you (white males)) to blatantly pursue the interests of our group(s).

The radical, illiberal left survives in part because liberals make excuses for them, and because what they say is often ambiguous enough to have a respectable liberal interpretation...though that's not their intended interpretation.

I again want to make it clear that I doubt that Sotomayor is a nutty lefty. I'm just pointing out that what she says is consistent with sympathy for nutty lefty-ness. Apparently she's really rather a centrist when/where the rubber meets the road.

A final point: I don't think she's talking about parties to in-court disputes. I think she's talking about judges. And I don't see how anyone can be *entirely* and automatically comfortable with a judge--a candidate for SCOTUS--saying that she agrees that "there is no objective stance."

Were I on the Judiciary Committee, I'd ask "Hey, do you mean that you think that we are all inevitably locked into our positions, that no degree of objectivity or neutrality is possible? 'Cause that's what you seem to say. If not, what do you believe?" She'd probably say "Naw, I was just giving this academic lecture, and that's the fashionable way to talk there, 'cause they're all pretty much crazy." And I'd say "cool", and that'd be that.

7:06 AM  
Anonymous Lewis Carroll said...

Winston,

FWIW, I asked Hilzoy about this since I know she's done a fair amount of research on SS, and this was her response:

"About Winston's questions: he notes that both of the claims he's worried about have both a benign and a not benign reading, and he worries about the not benign one. But I don't think the text of Sotomayor's speech supports the non-benign readings. With respect to the first, I have only my best reading of the speech to go on -- though nothing she says seems to me to hint at the idea that judging is *nothing but* an exercise of power, and she certainly does not say that. With respect to the second, she denies the non-benign reading ("We can never achieve any degree of objectivity no matter what we do.") explicitly, and states the benign one ("We're not normally capable of achieving perfect objectivity"), in a part Winston didn't quote:
"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases."


I'm not sure why Winston didn't quote that bit, since it seems to me both to state the benign reading, and also to be pretty incomprehensible if she holds the non-benign one: why bother to aspire to something that you cannot achieve to any extent?


I've also read a number of her cases, and while I'm not a lawyer, etc., they are also very hard to square with the idea that she doesn't believe in objectivity at all. Consider the one I posted about last night: if she just thought that judging was a naked exercise of power, and that no position was actually required by the law, why not come down on the side she obviously felt more sympathy towards, namely the NYPD, as opposed to the guy who was mailing stuff about the Negro Wolf and his murderous rapist ways? She tends to be very focussed on the actual texts and precedents, and on their actual meaning; if I have a criticism of her decisions (based on the cases I've read so far, which might not be representative), it's that while there is a lot of solid textual analysis, it's pretty hard to detect any real philosophical backing behind it. I'd much prefer too much workmanlike textual analysis and not enough overarching philosophy to the opposite, but the right amount of both would be even better. -- But the point is, being willing to impose her own views on recalcitrant and unwilling texts is about the last fault I'd find with her."

Seems to me she agrees with your expectations about a hypothetical Judiciary Committee question.

6:20 PM  
Blogger Winston Smith said...

Well, thanks to Hilzoy, but I can't see that anything here other than the final stuff helps us much.

First, though Hilzoy is right that nothing SS says clearly indicates the non-benign reading, that leaves us where we were before--being unable to rule out the non-benign reading. Which is the only claim I made. I say what Hilzoy says, that I'd not interpret it that way if forced to make a guess...but as I make clear, I'm wondering whether we can really *rule out* the non-benign reading, and the answer still seems to be 'no.' Now, note: to say that we can't rule it out is to make a very modest claim. And, again, all I'm saying is that when you come close to nutty views several times, it gives people reason to wonder whether you're sympathetic to nutty views.

As for the second issue: I'm not sure why Hilzoy is not sure why I didn't quote the passage in question: the simple explanation is the true one: I just overlooked it.(Is it just me, or is H hinting at some more nefarious explanation?)

I'm not sure why Hilzoy doesn't note that the passage she quotes is actually pretty alarming in itself. What Sotomayer says there is that she doubts that we can even *aspire* to objectivity in "all or even most cases."

Huhwa????

Now, we can say that she really meant that we can't *achieve* it. That'd be my guess...but still: some cause for concern.

And: what we're basically doing is giving her the best reading in every case. If we were serious about SCOTUS, we'd be hesitant to do that. We'd want someone to ask her about it directly. There's nothing unfair or aggressive about that--it's just a question.

So, though I think Hilzoy's da bomb--really I do--I don't see that her comments really help us out here.

Except for the stuff about SS's cases. What H says about the actual decisions is similar to what I've heard from others. And, as I said above, I think that's more important than the philosophical stuff. People say all sorts of crazy stuff in academic talks, and people say all sorts of crazy stuff they don't really believe when they start talking about philosophy.

Let me make it clear that I'm not trying to be hard on Sotomayor. I'm just pointing out that things she's said really do raise questions about her philosophical views--though that's all they do: raise questions.

7:44 PM  
Blogger Jim Bales said...

WS,

Let me second your statement:
"I think that [Sotomayor's decisions are] more important than the philosophical stuff. People say all sorts of crazy stuff in academic talks, and people say all sorts of crazy stuff they don't really believe when they start talking about philosophy."So, is there someone whose opinions you trust concerning interpreting judicial decisions? If so, what is their take on Sotomayor?

Alternatively, have you seen (or been told of) any issues in her decisions that appear tainted by the illiberal left?

WS also posts:
What you write is a reasonable thing to believe, of course. Perhaps that's what SS thinks. I have no idea.

But let me point out you seem, to some extent, to be addressing a straw man, no? I mean, do you think that *all* she means is that no party to the dispute is in a *presumptively* objective position? 'Cause that's a very moderate, reasonable claim that hardly needs to be even expressed, I'd say.
I meant more than simply that ' no party to the dispute is in a *presumptively* objective position'. I meant:
"A Judge, wielding the power of the bench, must choose between perspectives, judging which particular perspective will be given sway over which particular parts of the decision that must be handed down."That is, Judge Sotomayor considered it important to expressly state what you and I consider to be obvious: Judges cannot presume to be objective simply by virtue of their office.

Judges do not operate in a vacuum. They adjudicate cases, brought before them by particular parties. Without the parties, there is nothing to judge.

This is the context of being a judge. What does this Judge mean when she approvingly quotes:
"there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging"?

Each party in a dispute has a legal theory, or perspective, that, when applied to the specific facts at hand, supports their case.

The judge must consider these theories (perspectives) as well as all of the theories supported by the history of case law. There is no clearly "neutral" stance that the judge take, knowing it (a priori) to be "objective".

Having considered these theories (perspectives) the judge must then choose which takes precedent over each facet of their decision.

This is (IMHO) the simplest interpretation of Sotomayor's assertion. The focus is, I believe in the verb to choose -- good judges make wise choices. If there were a clearly objective stance, we wouldn't need judges.

Now, perhaps I'm wrong. Perhaps her philosophy is really that of the illiberal left (whatever that may be), and she believes that there is no objective reality.

However, the only evidence supporting this non-benign interpretation is that it similar to language used by the illiberal left.

The limited knowledge we have of her decisions is the opposite, that she prefers to address each case on the facts and the legal theories set forth by all parties, without trying to fit the outcome to an over-arching philosophical view. This is not proof, of course, but it limits my concerns.

Your milage may, of course, vary!

best,
Jim

11:07 PM  
Blogger Winston Smith said...

Jim writes:
"Each party in a dispute has a legal theory, or perspective, that, when applied to the specific facts at hand, supports their case.

The judge must consider these theories (perspectives) as well as all of the theories supported by the history of case law. There is no clearly "neutral" stance that the judge take, knowing it (a priori) to be "objective".

Having considered these theories (perspectives) the judge must then choose which takes precedent over each facet of their decision."

Well, people seem to have somehow gotten the idea that I'm anti-Sotomayer, but I'm not. And I'm not insisting that she's a lefty.

However...I just don't see this interpretation being legitimate, Jim. I can't see it mapping onto what she says at all.

First, it seems to me that most parties in disputes don't have legal theories. Second, I don't see anything suggesting that her claim is really "There is no clearly "neutral" stance that the judge take, knowing it (a priori) to be 'objective'." I don't see any suggestion that she's talking about a priori knowledge at all. But even ignoring that, it's simply false to say that there are never any clearly neutral stances, for there are *very often* clearly neutral stances. And why the scare quotes around objective?

But more importantly: to say that "there is no objective stance, just a series of perspectives"--aside from probably not being true--is simply and obviously characteristic of lefty intellectuals. It's normal meaning among such folk is--just what it says--that we're all locked into our subjectivity, and there is no possibility of objectivity.

Look:

(i) Much of what she said in the Olmos lecture is very clearly reminiscent of stuff on the lefty left of the intellectual spectrum.

(ii) But most liberals are very hesitant to criticize the lefty left, and often parrot their language, ignoring its illiberal implications and spinning it liberal-ward in their own minds. I'd *guess* that's what Sotomayor did. (I'm afraid it's what some of us here are doing...)

(iii) My view is just that we oughtn't bend over backwards to pretend that (i) isn't true. Why not explicitly acknowledge both (i) and (ii)?

Most of what's going on here is really just an expression of my bafflement that liberals are so willing to (on the one hand) parrot and (on the other hand) work hard to explain away really crazy claims plucked from the intellectual swamp of the far academic left.

8:29 AM  
Anonymous Lewis Carroll said...

Winston,

First I'm personally pretty certain that Hilzoy had no ideas like intellectual dishonesty or other nefarious motivations in mind for you when she wondered why you left out that other passage. In my experiences with her, she doesn't really *do* unstated implication; she means what she says and says what she means. I would suspect she was simply 'wondering'. Plus I believe she holds you in high regard.

As for the substance, maybe I'm dense, and I don't mean to be obtuse, but when you say:

"What Sotomayer says there is that she doubts that we can even *aspire* to objectivity in "all or even most cases." ,

I don't see how that's a reasonable interpretation of:

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases."

My interpretion of the latter is: aspire to fairness and integrity - absolutely, we should; achievable all or most of the time - I have my doubts. While you seem to have substituted SS not believing that *aspiration* toward that goal is possible, while in reality she said she doubted that *achievement* of that goal is possible.

Now, you may still find this an indefensible position, but to me it reads like an admission of a sort of human fallibility. I admit that the addition of a strong dose of reductionism leads to: "Well, since it appears that we can never discard all of our prejudices and ex ante biases, there is no possibility of true objectivity, so therefore we should just admit that the outcome in each case will be a result of the judging individual's philosophical predispositions and that therefore there is no such thing as objective justice". Which it seems to me is the prevalent far left position that you find in academia.

But I just don't see where she said that. Do you think I'm way off base?

10:04 AM  
Anonymous Lewis Carroll said...

I would also add Winston that I much prefer the frank admission that any human person brings to the judging process some personal perspective and intellectual baggage. Thus, when I hear people say that they can remain 100% objective and without bias in all of their judgments, I tend to hear a bit of 'my $hit doesn't smell' exceptionalism.

This is especially applicable in things like law, since, if my experience with it is any indication, there are typically competing and/or conflicting rights, privileges and interests at stake. Ruling for one side or the other sometimes requires making a choice about which right or interest is more essential. The law can't seamlessly cover every possible conflict that can arise the way a mathematical rule can be applied uniformly without exception across all cases. Plus the law is loaded with uncertain and imprecise standards like 'beyond a reasonable doubt', 'the preponderance of the evidence' and 'a prudent person'.

(I would note that here the law and philosophy have a huge divergence since I believe that philosophy strives for mathematical precision WRT the search for truth, knowledge etc., while the law implicitly accepts some approximation of same as acceptable)

Like I said above though, taking those things and running all the way to "there is no possibility of being objective, so let's just assume that in every case a judge will decide based on their own prejudices" or "the law is whatever some judge says it is" is not valid.

10:27 AM  
Blogger Winston Smith said...

No, I don't think you're off-base--I think you're probably close to being right actually, and I read in haste, rather steamed at what I still take to be an intimation of shenanigans.

But to calm down and look at the actual quote:

"...Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases."

Now, what's "that goal"? It's either:

(a) aspiring to a greater degree of fairness and integrity.

or

(b) achieving a greater degree of fairness and integrity.

Regardless of which she means, it's cause for concern. She either means we can't usually even aspire to it, or, more likely, she means that our aspiration is futile in most cases.

Note: the goal in question is NOT achieving perfect fairness and integrity. It is, rather: achieving a greater degree of fairness and integrity.So, at best, she's expressing some skepticism about (usually) being able to be fairer by trying to do so.

Now, I'm certain she's wrong about that. If you try to be more fair, this ordinarily (i.e. in most cases) has some effect on your thinking. However, I can respect someone who says "you know, I revere the aspiration to greater fairness as much as anyone...but I'm--sadly--pessimistic about its efficacy." So I'm not saying that this should send us to DefCon 5 or anything.

But, again: we have a claim that can reasonably be interpreted in a couple of ways, some of which are benign and some of which are not. The more such claims we get, the less plausible is the automatic dismissal of the non-benign reading.

If Sotomayor is just a fallibilist who expressed her view poorly, then I'm o.k. with her. Let me make that perfectly clear.

Anyway, remember: this was the passage Hilzoy cited as proof that Sotomayor DIDN'T believe the lefty stuff! And it's STILL ambiguous! It doesn't mean that we can never be objective no matter what we do, but it also isn't merely an expression of ordinary fallibilism. It's rather a fairly extreme variety of pessimism. It's neither (O1) nor (O2), but rather something inching toward a kind of skepticism--also a view in the lefty vicinity.

Now, this is quick, so I may be missing something, but that's my take, FWIW.

Whaddaya think?

11:03 AM  
Blogger Winston Smith said...

"I would also add Winston that I much prefer the frank admission that any human person brings to the judging process some personal perspective and intellectual baggage."

Lord, I simply do not know how to make this any clearer: I could not agree more. I absolutely think that it is crucial to recognize the pervasive *possibility* of error, the power of our quirks and prejudices, etc. TO ERR IS HUMAN.

But there is all the difference in the world between recognizing those facts and electing to fight them and merely giving in to them.

What S seems to have done is at least express pessimism about the efficacy of fighting against our quirks and prejudices. She has also expressed admiration for people who seem to be pretty far down that slope. (Minnow is apparently in the "we make up the truth" camp...which is way beyond pessimism, into the la-la land of an optimism according to which (very roughly) we make things true by believing them. At least according to the review cited in a previous post.)

Again: nothing Sotomayor has said clearly indicates that she has reprehensible philosophical views. But MUCH of what she says suggests views that are prima facie cause for concern.

None of this in any way entails that I think humans are perfect, nor that it's always easy to be perfectly objective. I don't know anyone who thinks that. To be concerned about people who think it's impossible--or nearly so is not to locate yourself on the other extreme.

Heck, I'm perfectly o.k. with certain views that say that we can only eek out small bits of knowledge here and there--that we're mostly irrational with only occasional glimpses of a rather inferior version of rationality. Sometimes I even think that's true. So on some days I'm sympathetic with Sotomayor.

All I'm saying is: don't pretend what she's saying is not suggestive of something worrisome.

11:16 AM  
Blogger Jim Bales said...

This converstaion has moved on to other, newer, threads. However, I do want to respond here to one speciific point that WS raised in response to an earlier comment of mine:

He writes:
First, it seems to me that most parties in disputes don't have legal theories.My understanding is that a judge applies the law to the facts. So, in any case, the parties must disagree with either the facts of the case, or with how the law is to be applied to those facts. (The text of the law itself is not a point of disupute except, perhaps, in very exceptional cases!)

By "legal theory" I simply mean "a belief as to how the law is to be applied to the facts in this particular casw", i.e., how the law should be interpreted in this case.

At the appeals court level, where Sotomayor sits, it is my understanding that the courts have little freedom to change the findings of fact set forth by the lower courts. So, for an appeals judge, cases revolve around two parties that want to apply the same law to the same facts in different ways to acheive different outcomes.

The Judge then has to ealuate the interpretations (theories) and come up with some blend of the theories set forth by the parties, theories for existing case law, and new theories of the Judges devising, and apply the blend to the facts at hand.

Best,
Jim

10:19 AM  

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