Sotomayor’s mask of objectivity — VOICES for REASON

“Sotomayor Emphasizes Objectivity”—that was the headline in a recent Washington Post. It was a line worthy of the satirical newspaper known as The Onion, which deals routinely in turning the tables for humor’s sake, inverting truth and fiction. And the newly objective Sonia Sotomayor is a pure work of fiction.

During her hearings, Sotomayor said all the right things. She told the committee that her judicial philosophy is “fidelity to the law.” She told Senator Jon Kyl that the “job of the judge is to apply the law” and “it’s not the heart that compels conclusions in cases.” She told  him: “We apply law to facts. We don’t apply feelings to facts….” And she passed off her famous “wise Latina” remark as a “rhetorical flourish” meant to inspire other minorities, not to express her philosophy of judging.

Based on this performance, Sotomayor is virtually certain to be confirmed for the Supreme Court. On Tuesday, the Judiciary Committee voted 13-6 to submit her nomination to the full Senate. But how are the senators supposed to square her recent professions of judicial objectivity with her public paeans to the opposite view?

When Sotomayor claimed that a Latina judge will usually make better decisions than a white male, she was not just dispensing a “rhetorical riff” in the emotional heat of the moment. On the contrary, that claim was the thematic centerpiece of her 2001 speech, “A Latina Judge’s Voice.” You have to read the whole speech. It’s all of a piece. Anyone can be forgiven a “rhetorical flourish” which, taken out of context, conveys a view contrary to one’s well-considered opinions. But that’s not what happened in that speech (later authorized by her to be reprinted as a law review article). The speech/article is a complex, extended meditation on “how wonderful and magical it is to have a Latina soul,” and the inevitable relativism that sex, race, and upbringing impose on the task of judging cases in court.

As Senator Kyl observed, the speech did not convey that prejudices based on race, gender, and upbringing must be fought and surmounted by careful, rational identification and extirpation. On the contrary, Kyl told her “you seem to be celebrating it.” And indeed, that’s the only objective interpretation of her speech/article.

At the hearing, she responded defiantly by saying: look at my written decisions and tell me where the prejudice is. But that’s no defense—it’s just a confession that she can’t get away with what she’s preaching, so long as objectivity retains any status as a judicial ideal. It’s as if a teacher who advocates for biblical creationism in the public schools were to say, “I’m no danger to the separation of church and state—just show me when I’ve ever taught the Bible in class before now.”

Sotomayor should not be allowed to get away with claiming that her stated ideas are just so much hot air, having no real-world significance. Consider, for example, the following statements from her speech: “Personal experiences affect the facts that judges choose to see,” and “‘there is no objective stance but only a series of perspectives.’” If those words mean anything, what do they permit? At a minimum, they permit trial judges to rationalize a choice to select which facts to consider, and which to ignore, based on his or her personal “perspective.” Which facts? Well, you might never know, because the decision to consider or ignore facts will be made in the privacy of the judge’s mind. This is subjectivism—the idea that one’s emotional reactions are a sufficient basis for making intellectual decisions. No appellate court, not even the Supreme Court, can be expected to catch and correct such subjective corruption of the fact-finding process.

And that’s just for starters. As the most prominent current advocate of non-objective judging, Sotomayor will be able to influence the entire judiciary in this direction, using the prestige of her new position on the nation’s highest court. Will her accession send the Court immediately into a downward spiral of blatant subjectivity? No, of course not. These things take time. She will be one among nine justices. She will be watched closely. But while her every word is parsed for subliminal racism, judges throughout the land will be able to cite a Supreme Court justice in their defense if they happen to get caught “choosing what facts to see” based on their race, gender, or upbringing.

In in the long run, Sotomayor’s subjectivism can be expected to further undermine the already-discredited idea that the U.S. Constitution has objective meaning. (See my article on “Justice Holmes and the Empty Constitution.”) And that will spell disaster for the Supreme Court’s ability to protect individual rights.

Ask any parent. Which best reflects a child’s true beliefs: what he says to his friends when no one else is listening, or what he says to adults when they’ve called him on the carpet? When Sonia Sotomayor was chatting among friends (in speeches and articles), she revealed the soul of a thoroughgoing subjectivist. But now her “parents,” the members of the United States Senate, seem willing to accept her lip service to objectivity at face value. Unfortunately, it is the American people who will suffer for the Senate’s lack of intellectual discipline.

There is still an opportunity for the Senate to do the right thing: Sonia Sotomayor should be denied confirmation to the post of associate justice of the United States Supreme Court.

Image: Wikimedia Commons