Judge Sotomayor Just Shot Up the Badass Meter

Funny thing. Verum Serum excerpts from a speech by Judge Sonia Sotomayor, where she talks a lot about the role of "experience" (as in, one's experience as a White man or a Latina woman) in judging. She quite vigorously defends the notion that identity matters, and disclaims the idea that there is some grand ahistorical legal "right answer" that transcends perspective or partiality. Verum finds this terrifying. Needless, to say, I (White, male, straight -- alas Jewish -- me) love it. She even cites to Martha Minow!

Some of these arguments go back to what I wrote defending Justice Ginsburg when she said that female judges may possess certain "sensitivities" that male judges lack. This is almost indisputably true -- women, for example, live having been pregnant or knowing they could become pregnant. Men don't experience that. Recent studies (thanks to Gaucho for pointing to the link) have demonstrated that male judicial voting patterns on sexual discrimination cases are significantly impacted by having a woman on the panel -- even controlling for ideology. And since the law often asks judges to determine questions which turn on subjective experience (is X regulation an "undue burden" on a women's right to choose? Was a given fact pattern "pervasive sexual harassment"?), these experiential differences matter. That isn't to say that gender or race is determinative in cases in which gender or race might serve to differentiate experiences. Race and gender are (among) the identity axis which construct the vantage point through which we see the world -- this affects, but does not determine, how we interpret it.*

There is a certain naivety possessed by many lay folk -- and a good many lawyers and law students, alas -- that The Law exists hermetically sealed from human sight or touch. I can understand how lay folks buy into the myth -- it is the dominant conception -- but I utterly fail to see how anyone who has been through a year of law school can still clutch to it. Courts are constantly forced to ask questions about the nature of justice and fairness, to make evaluative decisions, in short, to judge. The entire body of common law is essentially one long game of "what makes sense?" Constitutional law is no different: What is "cruel" punishment? What process is "due"? What is the technical definition of "equal protection"?

These are not questions that come with objective answers; indeed, I would question quite strongly whether they are even candidates for objective truth. To be sure, we often claim they are -- we take the position held by whoever currently holds the crown gavel and proclaim it to be Divine Revelation Black Letter Law. But this claim to impartiality is a chimera -- it doesn't correspond to anything real. A rule that works from the perspective of one position in the social order or one bundle of value commitments may seem bizarre or oppressive to another person differently situated or with a different set of commitments. We aren't equipped with the tools to resolve these disputes by brute intellectual force: our choices are between simply entrenching the dominant view and calling it True, or honestly engaging with and grappling with alternatives, with an eye towards mutual agreement and a commitment to mutual respect. From within this paradigm, it is beyond obvious that a multiplicity of perspectives is of benefit to the judicial branch. This has been recognized by theorists left (Jack Balkin, Cass Sunstein) and right (Richard Posner).

If we are serious in upholding a value of inclusion and mutual respect, we must be prepared to hear alternative perspectives which may clash -- sometimes dramatically -- with what we take to be settled or obvious interpretations (of law, of policy, of social organization, of anything). Otherwise, as Jack Balkin puts it, "we may confuse our conception of what is reasonable with Reason itself." It is, of course, more comforting to cloister ourselves into homogeneous bubbles and then shake our fist at those who wish to introduce "bias" into the system. But that is not consistent with a commitment to law, ethics, or equality.

* See Iris Marion Young, Inclusion and Democracy (Oxford: Oxford UP 2000), Ch. 4.