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July 15, 2009


Pomo Sotomayor

Sotomayor hearings

I sure wish I could listen to my college Postmodern Lit professor talk about these Sotomayor hearings.

Please excuse this diversion into shoddy undergrad English-major analysis, but has anyone else noticed the weird refusal to acknowledge that a justice's gender or ethnicity could play a role on the Supreme Court, unless that justice is not male or not white? The kerfuffle over Sotomayor's "wise Latina" comment has gone further than subtly racist partisan pouncing on whatever makes her nomination questionable, and has moved into a strange realm where we all pretend that subjectivity doesn't exist.

When you're a judge, your job is to interpret the law with impartiality and not let your personal viewpoints color your judgment. The law is the law and we as individuals are supposed to fade into an undifferentiated mass of equality and non-discriminatory humanoids before it.

But come on. Even if we all agree that the law should strive for perfect objectivity based on a higher, absolute justice, we all know that's not ever going to be possible. Don't members of Congress know any basic postmodern critical theory?

I'm only half kidding, here. The pomo critics taught us that all the basic tenets that our society is built on--science, religion, the nuclear family, political parties, gender roles, law--are all human constructions that we made up. They don't possess any kind of innate righteousness. The only reason we have the law is that we made it up, if by "we" you mean "white men".

(The postmodernists also say that just like there's no real objective truth, there's also no subjective truth either because the idea of "selfhood" is just another construction, but then you're getting into sophomore-level cultural studies, and I didn't take that class. Here's a pretty good summary of all this stuff.)

I don't expect that we would find much Derrida on Jeff Session's nightstand, but it would be so great if someone in these hearings spoke up and pointed out that if Sotomayor has personal beliefs based on her life experiences that could have some kind of influence on her work as an interpreter of the law, then John Roberts and Clarence Thomas and Scalia and Ginsberg all do too. As justices their job is to strive to see beyond their personal beliefs, though they are still there. Sotomayor spoke about her life experiences as being positive contributions to her legal career, but every judge's experiences somehow influence the way they do their work. How could they not?

We only seem to notice or be suspicious of this when a person other than a white man talks about it, because we have a legal system that was created by white men, and has therefore historically directed more benefits to them than to anyone else. During his congressional hearing, Justice Roberts didn't have to talk about how a wise white guy might add value to a court of law because our courts are already pretty much of, by, and for white guys. Those biases are already there.

At least Sotomayor has admitted this, though now she seems to be backpedaling, playing the objectivity game with Congress. Still, I love that she said this: "Life experiences have to influence you. We’re not robots who listen to evidence and don't have feelings. We have to recognize those feelings, and put them aside. That’s what my speech was saying."

Today, John Cornyn went back to the wise Latina thing again, "asking whether she would regret if her audience of students understood her to be saying that the quality of a judge depended on race, gender or ethnicity." "I would regret that," she said.

I would love to hear John Roberts laboriously explain over and over again how he has explored his own feelings and biases as a white man, then put them aside for the fair application of the law.

categories: Culture, Gender, Politics, Race, Women
posted by amy at 10:42 AM | #

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If there is no such thing as truth, subjective or objective, what is the point of having a law system or judges? How can fairness, equality or punishment exist without reference to truth? Without any innate righteousness (or rather innate rightness, more important), what is law? What could make someone a better judge and executor of that law? Would better even exist?

And why the suggestion throughout the post that the law of "white men" contains errors, if without truth there can be no such thing as error, being an offense against the truth?

I am truly curious on all these points, as an absolutist who thinks that Sotomayor's different experiences can indeed help her as a judge, and even more as a justice, but think such because her experiences may contain truth, not because nothing contains truth.

Posted by: Michael at July 15, 2009 10:42 PM

I'm not a die-hard postmodernist zealot or anything, but I do think it's worth thinking about how subjectivity defines a lot of the institutions we often think of as objective and free from personal bias. But I don't believe there is objectively correct legal judgment or there would be no appellate courts and all 9 Supreme Court justices would always reach unanimous decisions.

Our legal system is constructed to allow for different opinions -- one judge or justice can come to a different decision than another. Who's to say which is right? A SCOTUS justice appointed 4 presidents ago? Or 2 presidents ago?

To presume that judges are able to function completely free from their own biases is unrealistic, I think, though it is their duty to do their best to overcome them. Since we've already got a whole mess of personal biases on the Supreme Court, let's add another one and be happy about it rather than pretend they don't exist.

I don't mean to suggest that laws and a legal system largely created by white men is any more or less flawed than a system created by anyone else would be. Just that the law as a human construction is fallible. The Sotomayor hearings suggest to me that Congress doesn't see white male justices as having biases particular to their sex and race in the way they assume a Latina woman has biases particular to hers. We all have biases that we may never completely overcome, though it seems that in this case, some biases are held in greater suspicion than others.

Sotomayor's experiences will certainly inform her work, just as any judge's experiences would. I agree with you that her experiences will make her work valuable, especially because her views are likely different from other judges', and maybe haven't been represented in the SCOTUS before. Her version of the truth isn't inherently "truthier" than theirs, but she brings a new and valuable perspective.

Posted by: amy at July 15, 2009 11:24 PM

And just because laws are social rather than innately righteous, it doesn't mean they don't have value. This is commonly overlooked when sweeping aside postmodern (or feminist, or sociological) inquiry by grieving at the loss of truth. Understanding that truths are historically contingent and change over time, rather than universal and timeless, doesn't mean that they all of disappear and we suddenly find ourselves in world without values. Though human constructions are fallible, yet they are also productive (because we can change them! cf: marriage and gay rights).

These hearings are indeed a great example of the interested party masking that interest by constructing it as a universal, "given the lie" by Cornyn's own line of questioning.

Posted by: Chad at July 16, 2009 7:01 PM

I am totally stunned and disappointed to learn that Scalia and Thomas had no real objectivity. I didn't see that coming!

But, seriously, fantastic posting. Couldn't agree more. How pathetically scared is the old white man in this country? Oy.

Posted by: E at July 17, 2009 9:30 AM

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