12 July 2009

politicking, round 2

A while back, I wrote a post about Judge Sotomayor, which got a comment, which I ignored, because I have absolutely no desire to join the world of political blogs, and I figured the comment probably came from someone who happened across my blog while googling for posts about the judge. I write this blog first for myself, second for family and friends, and third for other people with connections to Africa. I don't need a wider audience. Just today, though, I figured out that the comment came from my cousin (hi, C!), who I didn't even know read my blog. Well, then. Cousins get responses where random commenters would not.

It's unfortunate that the word "empathy" got thrown around so much with regard to this nomination. I actually used the word in the opposite way - not referring to Judge Sotomayor, as most people did, but to the old white men who currently make up 7/9s of the Supreme Court. I said that these men "will never have anything more than empathy for people who experience daily discrimination," whereas a person of color has had the experience of racism. Experience, I said, leads to the making of better decisions.

C., I hope you don't mind if I quote part of your comment here. It said, "Last I heard the purpose of a judge was to determine the legality of an action, not if he or she "feels" the pain of the person who is being accused of a crime. Hopefuly, a person could be tall or short, gay or straight, right or left handed, purple or orange... but if he or she knows the law, then should be able to interpret (without bias) if someone did or did not break the law."

I absolutely agree with you that the job of a judge is not to feel anyone's pain. If a judge tried to feel the pain of every person who came through their courtroom, they would quickly be overwhelmed. It is not enough, however, for a judge to know the law. Judges make nuanced decisions not just about which law applies (it's more complicated than it seems, often), but about how the law applies in various situations. That is where experience is helpful. It is not about bias, but the simple fact that a Latina woman will see, and emphasize, different aspects of the situation than a white man, based on her experiences of the world as a Latina woman. By virtue of the fact that their entire lives have been spent enjoying the privilege of being white and male in our society, there are things that white men simply will never see in a situation (unless perhaps they have spent a significant amount of time working on learning about feminism and anti-racism).

I think Justice Ginsburg made some excellent points about this in her interview with the New York Times (available here). For example, in the recent Redding case involving the strip-search of a 13-year old girl, Justice Ginsburg pointed out that the experience of being strip-searched will very likely be different for a boy than a girl. Male judges, I hardly need to point out, have never been a girl. They may empathize, as I said in my first post, but they will never understand.

White straight male judges often do not even see the problem presented in a case, or believe that it is a problem if they do, because it doesn't hurt them or people like them. If everyone could be like them, the opinions sometimes seem to say, there would be no problem. But the fact is that not all people are like them. It is dangerous to have a Supreme Court made up primarily of people who do not see the problem and are not willing to have it pointed out to them. This is why diversity (of race, gender, sexuality, etc.) on the Supreme Court is vastly important. We need people who see the problem, so they can decide what to do about it. This doesn't mean that the Court will universally decide for one group or another, but that they can make fair judgments about the issue before them.

It is never as simple as just interpreting the law. It would be great if laws were all clear and constitutional, but they just aren't. They are the work of human beings. Interpretation of the law is a hard job, and biases will inevitably enter into it.

We often make the mistake, in this country, of assuming that the biases of white straight men are the norm, and that anyone whose biases are different than those are "biased." Every person has biases. Biases are not the same as experience, but they can form from a person's experience. The question is not "Is this person biased?" but "Is this person aware of her or his biases and able to determine when the biases are helpful and when hurtful?" White men, because they are the "norm," may assume that they have no biases, which is dangerous (has anyone read a Scalia opinion lately?). Far better to recognize one's biases and deliberately lay them aside when necessary. I admire the fact that Judge Sotomayor is aware of her biases. I have never heard the white male members of the Supreme Court exhibit the same self-awareness.

Finally, for a Supreme Court justice, just interpreting the law is not an option. Lower courts do that, based on the criteria that have been laid out by the courts above them, but the Supreme Court is an independent branch of government, equal to the Presidential and Legislative branches. The Supreme Court decides which laws are constitutional, and therefore may throw out laws that the other branches have made or limit the situations in which they may make laws. The Constitution is specific in a few places, vague in a few places, and leaves out most of what we wish it would tell us. The Supreme Court does not make laws, but it does determine when laws are unconstitutional, and what standards should be used to apply laws. It cannot just "determine when someone broke the law." Its responsibility is far higher and greater than that.

And in my experience, whether you agree with what the Supreme Court does depends more on your politics than it does on the constitutionality of the law.

C., I know that you and I will never agree on the politics. I'm not trying to persuade you here, certainly not politically, but merely telling you why I wrote what I did in the first post. I respect your opinions, even when they are very different from mine. I know that we both formed our opinions about politics based on a desire to see this country at its best.

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