Tuesday, June 2, 2009

What Would Puerto Rican on the Bench Do for Us?

Most of the criticism I've seen aimed at Sonia Sotomayor has struck me as simple, petty, childish, and baffling. Arguments that she's not smart enough or frugal enough don't interest me much past a headline. But one criticism is worthy of attention. That is the claim that she's a racist for making the following statement:
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Well let me first say that I don't see how this statement places one race above another as more deserving, powerful, moral, or wise. Let's not overlook the importance of "I would hope" in that sentence.

Of course not everybody cares about that little detail. And some fine readers encounter this statement quickly judge it
1) a bad definition of wisdom, 2) evidence that she's lacking a certain degree of wisdom, and, 3) racist.

In his predictable rant, Casey does rightly ask for a "richness of experience [hierarchy] list."

Tho, I'm almost certain that no matter what that list looks like he'll reject it as flawed and insignificant. And he writes
Soon we will return to epistemology, and the question will be: can you transcend your racial determiners when it comes to knowing reality? I will side with those who say 'Yes, you can.'

See what he did there? Casey's a cheeky bastard.

The first question I would have for Casey is if he read the entire lecture from which Sotomayor's statement was taken. Here is my reaction to Casey's three judgments above.

I'm not sure what he believes Sotomayor's definition of wisdom is, and so I can't defend what he attacks. But I actually appreciate her discussion of wisdom, brief as it is. Her lecture spends a good amount of time addressing the progress towards a judicial branch that more accurately represents the American identity. The progress is recent and still moves slowly, and as I read her statements, it is in comparison to the history of wisdom on the bench and in office that she believes a Latina would offer an improvement to the white males that have a legacy of disproportionally delaying and blocking the appointments of women and minorities to serve on the highest courts. She says:

In at least the last five years the majority of nominated judges the Senate delayed more than one year before confirming or never confirming were women or minorities.

That record can be defended I'm sure. But if it is the result of ignoring or rejecting the value of equal consideration, just like Sotomayor, I too would hope that a wise Latina would do a better job of treating all groups with the same respect.

Her wisdom is increasingly clear to me as I read her work. If the "certain wisdom" that she lacks is merely that specific wisdom with which Casey can agree without reservation, then I'm sure he would agree that it's not much of a criticism. In fact, she addresses this very issue in her lecture, agreeing with Yale professor, Steven Carter's argument "that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought."

Most importantly on this point, she quotes Martha Minnow, who argues that there is "no escape from choice in judging."

I suspect this is what Casey sees as a racist view. Perhaps he sees it as resigned prejudice. What he believes we can somehow transcend, Sotomayor (and I) see as the reality of a life's experience. Sotomayor, in her lecture, refers to such transcendence as an "aspiration", but she's not sure it's possible to achieve. What Casey hopes we can disguise, and what she and I are comfortable with, is that diversity of conclusions. Because each judgment is a choice, we cannot escape the influence of experience. And should we? Is it the role of the courts to offer opinions that are held not by people, but by some unknown Platonic judge? But even if that impartial ideal is to be sought, Sotomayor's "hope" is a fair one: that a wise Latina would introduce an improvement that is needed.

"Let us not forget," she writes immediately after the quote that Casey calls racist,

that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.

I hope the future is an improvement too. And with the progressively representative bench I also hope that the experiences of minorities are increasingly helpful.

And I'll leave the final words on this point to Sotomayor, whose wisdom I believe is exceedingly clear in the following remarks:

I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.
There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.


Casey said...

I came across a word in my dissertation research that I find helpful: raciological. It appeared in Paul Gilroy's 2000 book, Against Race: Imagining Political Culture Beyond the Color Line. Gilroy's work is effectively an academicization of Bob Marley's famous lines "Until the philosophy which holds one race superior and another inferior is finally and permanently discredited and abandonded -- everywhere is war."

So "raciological" thinking is just thinking that accepts racial categories. Of course, most academics try to carve out a nuanced position nowadays -- something like this: "I accept that 'race' is entirely a construct; nevertheless, it is a construct which has impacted real life in real ways. We must acknowledge that fact while striving to level the playing field."

Of course, I understand the deeply interested rhetorical situation here: you--who with Sotomayor continue to insist on seeing raciologically--see me as a "white" person, and as a result, you hear my argument as a white argument. Consequently, you have a reason to doubt my objectivity, and to discount what I say as another in a long historical string of sophisticated power-plays by white Americans.

I can't say I blame you. Still, even without hope of converting you to my way of thinking, and even at the risk of being labeled a racist myself (not by you, perhaps, but if we were to have this conversation slightly more publically--), I will continue to insist that Justice must (and can) transcend notions of identity -- if it does not, it is no Justice at all but only a kind of consensus view.

The run-of-the-mill "postmodern" view has been that "Justice" (and "Wisdom") have never been anything but words applied -- usually post hoc -- to consensus views in the hopes of sanctifying the consensus. Famous examples from myth (Buddha) and history (Asoka) where princes and kings gave up everything that was theirs for the sake of pursuing Justice serve as effective evidence that great and noble people can transcend their personal interests for the sake of an abstract ideal. I think these should be the people we seek to put on our high court. And I do not think that race or gender can contribute to (or detract from) the likelihood that a person achieves this perspective.

Still -- a couple of concessions: I haven't read her whole article. I will. Second: although I do not find racial representation on a court of nine judges to be an important goal, I can understand the symbolism of it, and ultimately I won't object (though I will "poke fun," with John Stewart, who was asking for a one-tenth homosexual representation on the court... achieved by finding a judge who is homosexual 90% of the time). I have little doubt, even through this discussion, that Sotomayor is a profound thinker and a fair judge.

And finally I return to my question of epistemology with very simple evidence: I'm sure you'd agree that Noam Chomsky and Howard Zinn would make much more compassionate/sympathetic/"better" judges than Clarence Thomas, Alberto Gonzales, and Condi Rice. Philosophically, that data alone wins the argument. Nevertheless, we collectively stopped arguing by way of logos about a decade ago... and having recognized that, and decided to participate in this period in history, I'm happy to keep riding the pathos wave.

¡Viva Igualdad!

fenhopper said...

one major point first. it's not that white-male-ness has stopped judges from being as good as possible. it's that historically, those judges have not been as good as possible. and study has shown that identity has always corresponded to types of rulings. we are people. and so we make every decision as the person we are. we can't help it. we're not in control of that.

a major part of sotomayor's lecture addresses the issue of what happens when the court changes faces. and her point is -- we should see that we have enough data to see what happens. how can we talk about the effect of women and minorities if they are still such a small part of it?

so i think you're the one arguing towards an idealistic(pathetic) rather than practical(logical) system. you dismiss the value of consensus as a means towards justice, but then would you trust a single individual to serve as the lone supreme court justice? i think you value consensus more than your comment indicates.

and why are you not logically seeking to populate a court with individuals who in deliberation are going to most likely question and challenge and influence the arguments that have not been settled, and interpretations that have not been chosen but which will be picked and limited based on competing assumptions and premises?

we don't need a supreme court to be populated by any type of demographic. that's not the goal. there is no necessary pursuit of a symbol or the settling of a gut level need for balance. and stories about people who give up everything to pursue justice are good examples of the lengths of dedication -- but they have nothing to do with the actual achievement of justice.

i don't need anyone on the court to believe they have transcended identity. i want them to constantly consider it. and no one has said anything about people not being able to transcend their interests. what culture does is affect our assumptions. and if we don't recognize that our assumptions have been shaped then we're not even trying to transcend. we're settling into our first way of choosing.

you mention chomsky and zinn VS thomas scalia et al:

you're wrong. i don't think they would make better judges. i think scalia is a good judge. i think his philosophy of the role of the court is sound. and i agree with his view that the role of the court is not change but interpretation. even when the interpretation is constitutional but unjust. i think roberts is an impressive thinker and a formidable scholar. i believe they belong on the court.

and i suspect that chomsky would be more driven by an agenda than by the pursuit of understanding that he doesn't already have. i believe his empathy would be overly meted and craftily withheld based on his values.

but finally let me say this. you have accused me of seeing you as white and limiting you into that. perhaps. but only to the extent that i consider myself a white person too. and i think we are both speaking as representations of the white voice. and souter is a white voice. and as sotomayor reminds us in her lecture -- clarence thomas is a black voice who has made black arguments.

when i say that do you know what i think of him?

i only doubt your objectivity as much as i trust my own. and so your 'understanding' of my rhetorical situation and my view of you as a limited white person sounds more to me like the insistent accusation of someone feeling increasingly ignored. and that's why i insist on talking with you. because i wonder if i am ignoring you. i'm not sure i've heard what you're really trying to say when you claim that i will see your argument as fitting into a category that already exists and therefore 'discount' what you say.

if you think i see you as a part of the historical strand of white dominance, then i think you overestimate how powerful and nefarious you appear to me.

Casey said...

"...we are people. and so we make every decision as the person we are. we can't help it. we're not in control of that."

Well... then I guess I ought to be pulling for more white male judges. (?)

As for this part -- "sounds more to me like the insistent accusation of someone feeling increasingly ignored. and that's why i insist on talking with you. because i wonder if i am ignoring you." -- I think that's a fair assessment. I'd prefer to talk about it in a facebook message or something... I'll send you one.

fenhopper said...

it sounds like you're reading into that first quote a more specific limitation than i intended. deciding based on who we are doesn't mean choosing to prefer only those similar to us. nor does it mean making decisions that stereotypes say we will make. it means that i don't believe my decisions will get past being shaped by a logic that only i have created. it will be similar to many other systems, but no matter what analysis is imposed on it and what system the academics tell me it fits into, it's a decision made by this individual because i am only this individual.

i think you're right that at this point specifics are important enough to keep from the public.

c'mon. where's your alias?

Casey said...

I don't understand the last part of that last response...

"...specifics are important enough to keep from the public?" My alias?

You're too cryptic. Maybe it's because I'm currently listening to Rush Limbaugh that I can't understand.

I was thinking somewhere: what the hell would white-male culture be anyway? Bank of America and MacDonald's? I loathe that culture. So what does one do when he finds his own cultural identity shameful and ugly? Freeload off of other cultures? That's distasteful and too second-hand for me. Scavenge on the past? That's not "alive" enough for me. I just want to fit in!!!