DADocrat Post: Sotomayor, Empathy, and Objectivity

As someone whose professional specialty is (in theory) the philosophy of law, listening to the news from the Sotomayor confirmation hearings so far has been a bit frustrating – not just the lines of questioning, mind you, but Judge Sotomayor's answers as well.  Among the many things on which Sotomayor has been questioned are her infamous “wise Latina” comments.  The judge herself has responded by backing away from the comments, saying that they were a poorly-executed rhetorical flourish.  What is frustrating is that she is doing this when her claim that there are cases in which a wise Latina might make better judgments than a white man is not only almost certainly true, but represents a much more sophisticated understanding of “objectivity” than that on display in the hearings. 

The charge against Sotomayor is that, if she thinks there are cases in which a Latina would make a better legal judgment than a white man (let's assume they are otherwise equally wise), she must be an identity-politics warrior who believes that latinas are morally and/or intellectually superior to white men (and she probably thinks that Che Guevara should replace Shakespeare in high school English classrooms, too).  But this is an unwarranted inference.  A Latina might make a better judgment because she can see the issue from a different perspective than a white man – which helps her objectivity, rather than competing with it.

How?  Keep in mind that we are all, even judges and philosophers, imperfect human beings who are to some extent victims of our prejudices, assumptions, intellectual limitations, etc.  We can (and often should) aspire to objectivity and impartiality, but we never quite get there.

Part of how we can try to transcend our particular perspective for a more objective one is to do our best to rid ourselves of well-understood intellectual defects, such as ignorance, self-interest, or certain kinds of strong emotion.  This is why judges are expected to be highly educated and to recuse themselves from cases in which they have personal stakes, and why here in the US we give Supreme Court justices lifetime appointments that shield them from political punishment and reward.

But another important way in which reasonable people try to overcome their partial perspective is to seek out others who have different perspectives.  This is part of why we have nine Supreme Court justices instead of just looking for one fantastically intelligent philosopher-king (not that I would turn down  the job).  A Latina in a room full of white men will likely help to show another side of the issue that they might have missed, regardless of how scrupulous they were about their own personal attempts at objectivity.

The issue of partial perspectives also demonstrates why it is a mistake to contrast empathy and objectivity.  Some people seem to have the view that understanding the law is just a matter of reading some somewhat dense writing on a page.  But the law is not just words on a page – it is a complex social structure, and understanding it requires not just understanding the words, but how those words impact people out in the world.  This is not just some liberal-hippie wooly-headedness, but an important part of every theory of legal interpretation.  Even the staunchest Positivist must appeal to social practices to explain why what is written in the Constitution is law, while what is written in the Restatement of the Foreign Relations Law of the United States or Harry Potter and the Half-Blood Prince isn't. And even Scalia argues that we need to supplement the black-letter law by trying to figure out how real people would have understood the law when it was written.

Empathy is a facility of imaginatively inhabiting another person's perspective, and so can help us understand the law, objectively.  Understanding how the law impacts a particular person, what it means for her life, is to learn something about the law itself that may be relevant to a judgment.  Part of that may be intellectual, but part of it may also need to be empathetic, since the way people relate to the institutions of law is not always purely intellectual.  For a scholar of international law, interpretation of Chapter VII of the UN Charter is an interesting exercise in balancing the concepts of human rights and state sovereignty – for Congolese villager, it may be a question of whether that person with a gun and a blue helmet is going to protect you from your attackers or watch helplessly as you get beaten and raped. 

To sum up this argument with an analogy: If I refused to come around to the back of a house to see the other side because I was trying instead to see “the house itself,” you would think I was crazy (or a philosopher).  Expanding our understanding to encompass different perspectives is simply how we humans do objectivity.

Everything I've said so far is a decent argument for having a least one wise Latina sitting on the bench with the white men (and woman).  But it does not yet redeem the claim that a Latina might herself make a better decision than a white man – just that they would have different prejudices and blind spots.

It is impossible to go further without touching the third rail of American racial politics.  Everyone has a different perspective, but adding a Latina to the discussion is not the same, in the 21st century USA, as adding another white man with a slightly different perspective.  Much as we might aspire to get “beyond” identity politics, it would be disingenuous at best to deny that Latinos and Latinas have systematically different life experiences than whites.  Sotomayor's particular perspective may be no better or worse than Roberts', but we should not pretend that the differences would have nothing to do with their different racial and socioeconomic backgrounds.

More importantly, and more controversially, a Latina is, other things equal, more likely to be able to correct for her perspective and thus see things objectively, than a white man.  Part of why we are all victims of our prejudices is that it is very easy to see our own way of looking at things as the way of looking at things – prejudgment is hardest to correct for when you do not even realize it is there (and this is why sincerity in the quest for objectivity is no assurance of success).  This sort of seduction is especially dangerous, in our society, for affluent white men because our perspective is the dominant one.  Not only must a white man who aspires to objectivity struggle against common human psychological frailties, he must contend with an ambient culture that tells him in both subtle and overt ways, that he is the norm from which all other views are deviations. 

Ignoring race, gender, and class may seem like “objectivity,” but they are also luxuries of the person for whom race, gender, and class have never been obstacles – and never part of how he or she encountered the law.  No one asked John Roberts about how his whiteness or maleness affect his judging, even though no one would object if he said that his familiarity with the classics of English literature, his top-notch legal education, or an upbringing in a stable household where he could focus on his studies and was encouraged to pursue a career in law made him a better judge.  It would be a cruel joke to act as if, in our current society, his having those things had nothing at all to do with the fact that he is a white man.  Yet, we often do just that.

On the other hand, Sotomayor is surely aware of the fact that “Latina” is associated with a particular social perspective in the US, and also of the basics of how white men see things – since the white male perspective is all around her, in that same ambient culture.  As a result, she at least potentially has more to go on in trying to piece together what the law itself, objectively, is like.  The average wise Latina has an advantage over the average wise white man because she can see things he has trouble seeing, while being well-acquainted with his perspective as well.

Finally, we should not ignore the principle that, in situations of imperfect understanding, it may be part of the effort to approximate objectivity to pay special attention to the perspectives of those who are most likely to be harmed if we fail to overcome our own biases (hence, “innocent until proven guilty”).  Latinos/Latinas, blacks, and the poor are disproportionately on the receiving end of the law's power in the United States.  A Latina may well be better able to understand that situation.  Such understanding would not be a failure of objectivity – it is the view that the law is just what is written in law books and not the operation of the courts, the legislatures, and the police that is willfully partial.

Of course, if Sotomayor were saying that we should replace the biases of white men with the biases of Latinas, rather than use a different perspective as leverage towards objectivity, that would be nothing to celebrate.  And of course, no one in that hearing room is interested in having a subtle discussion of race and objectivity in the law – the Republican senators are there to get Sotomayor to say something stupid and she is there to say nothing stupid.  But the politics of the US judiciary have been dominated by facile notions of what it is to be “objective” or to “apply the law” for too long, to our detriment.  If we keep pretending that anyone who suggests that white men might be limited in their perspective is an enemy of objectivity, we are likely to maintain a legal system that does not live up to its ideal as the expression of a mutual social contract, but instead continues to be used – not with malice, but out of limited understanding – as a tool for exercising the power of the state to the disadvantage of wise Latinas while wise white men wring their hands, wondering why the jails fill up with the people they are trying to help. 

Daniel H. Levine is an assistant professor at the University of Maryland School of Public Policy and an Assistant Research Scholar with the Institute for Philosophy and Public Policy.  He has recently published a page-turner of a report on African Civilian Police Capacity for International Peacekeeping Operations for the Henry L. Stimson Center, and has more obscure reflections on the nature of law in “Rule of Law, Power Distribution, and the Problem of Faction in Conflict Interventions,” forthcoming in The Rule of Law in Comparative Perspective (Springer, 2009).   Dr. Levine lives in Baltimore with his lovely wife, MOMocrat Melissa Schober, their even lovelier daughter Ruth, two obnoxious cats, and a bunch of books on war.  He is an affluent white male.

Comments

[Lawyer Mama]

LOVE this post.

"Ignoring race, gender, and class may seem like “objectivity,” but they are also luxuries of the person for whom race, gender, and class have never been obstacles – and never part of how he or she encountered the law."

Exactly. It is awfully dangerous when those of us from certain backgrounds refuse to see that being white or being a man gives certain unseen privileges. You've set out exactly why racial diversity is so important in all areas of society, not just the Supreme Court.

I really wish more people could see this diversity as a good thing. It *is* a good thing. Taking it outside of the Supreme Court, it's been my experience that if I'm sitting in a board room, or a conference room, or in the room with the school PTA and I'm brainstorming about profits, legal theories for our latest litigation or even fundraising, more diversity will usually lead to more diversity in ideas.

Melissa chose wisely. (-;

[runescape gold]

I must be watching different coverage - Help point out the "hate"..... Once one gets past the prejudice then only those that are behind will speak of and with it and harbor the hate.