Wednesday, May 27, 2009

The Better Conclusion

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." -- Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

Kent comments:

There has already been much comment on this, but I will add mine nonetheless.

There seem to be two primary routes to take in this debate.  Route one (which this judge clearly rejects – check out her comments elsewhere) would be to hold up impartiality as a goal for good judicial decisions.  If we take this route, we can still admit that it is a goal not always achieved.  Failing to achieve it would be just that – failure.  A judicial decision that strayed far enough from this goal would be a bad decision.  We would expect judges to attempt to preempt this problem when they recognized its possibility in themselves to recluse themselves from case.  This would also be one reason for having appellate courts – so that decisions flawed by partiality (among other things) could be overturned.

That, at least, is one route.  But there is another.  Let’s call route two ‘Judge Sonia’s Route.’  (I like the parallel with ‘Judge Judy.’)

According to this approach, some kinds of people – based on inclusion in certain classes – are likely to make better decisions than others.  Judge Sonia claims that Latina females are likely to reach a ‘better’ conclusion that white males.  There are many bumps in this road.

For one thing, even if we grant the class superiority analysis that some races and sexes are inherently likely to reach better conclusions than others, why should we think that Latina females are superior in this regard?  I am here to say that white males are much more likely to reach better conclusions that Latina females.

Now I am sure that Judge Sonia would say that I am simply wrong about this.  But I will reply that, of course she is wrong because of my stated principle that white males are more likely to reach better conclusions that Latina females.  I am a white male, Judge Sonia is a Latina female, so of course she will offer her inferior conclusion, and fail to recognize my superior conclusion.

Judge Sonia could avoid my little trap here by claiming that she has analyzed the matter, compared the prejudices and experiences of Latina females and white males, and has discovered for all sorts of good reasons that Latina females come to better conclusions than white males.

But to know that this is true Judge Sonia must be able to step away her group membership and make an impartial and unbiased decision.  However, this clearly puts Judge Sonia back on route one – the route she rejects.

And if it is possible to step away, to any significant extent, from your group membership and offer what is at least a generally impartial conclusion, shouldn’t Judge Sonia be doing just that in her judicial decisions and urging her fellow jurists to do the same?


Trey Orndorff said...

There is an even more wrong here than just this. To assume that 'identity', as a part of ethnicity etc., creates views of understanding unattainable from other identities is to preclude truth (or should I say Truth). Her argument assumes that maleness (or whiteness or blackness) is an irreducible trait beyond which an individual (if such a thing could exist) cannot bring understanding. Such a view is dangerous for its theoretical implications, and would almost certainly indicate a view of Constitutional interpretation which precludes an understandable document.

WDC said...

Why would a Latina woman be better qualified to answer questions about a document that was written by white men?

I want two things from our Supreme Court members:

1. I want them to focus on making decisions based on what the Constitution says. What it actually says about the topic they are considering at any given time.

2. I want them to fear that they will be overthrown by the citizens, along with the other two branches of the Federal Government, if they fail to follow number 1.