Everyday Ethics

As a full-time graduate student who is also a parent of a young child, I often find myself with limited windows of time to complete everything that I want to get done.  Surely many of us in the world of academic philosophy, or other academic disciplines, have had the experience of sitting down at our computer, with the intent of getting some “real work” done, and then finding ourselves wrapped up in answering emails, reading our favorite academic blog posts, searching academic databases for new journal articles on our area of interest, not to mention the less professionally respectable activities of browsing Facebook, shopping online, etc.  Before we know it, the workday is over, and we’ve accomplished only a fraction of what we had in mind.  With this experience becoming increasingly common for me, and thus increasingly frustrating, and with a dissertation looming overhead, I decided that I needed a plan.  What I lacked, I thought, was structure, a system for using my time efficiently and effectively.

When it came time to select a time-management system, I decided to start at the website of my old friend, Jason Clegg.  Jason and I have known each other since middle school, and over time he’s developed into something of an expert on efficiency and effective time-management.  Recently, he’d written about a system that he uses, the Pomodoro Technique.  He described it in detail on his blog, and it sounded pretty easy.  More importantly, this guy gets a lot of stuff done in short amounts of time, so he must be doing something right.  I decided that if it’s good enough for him, it’s good enough for me, and I’ve been trying to implement some version of this system for a couple of weeks.

The purpose of this journal is to share with you some of my experiences with adapting the Pomodoro Technique to the needs of an academic professional.  As I move forward, I’ll share with you some of what I’ve learned.  Hopefully, my experience will help you to decide whether this system can work for you.  Already, I can share a couple of things I’ve realized about using this system in the academic world:

1.  Get a kitchen timer that doesn’t do anything else.

One thing Jason highly recommends is that you time your intensive work segments with a simple, kitchen timer.  Not realizing how important this actually was, I figured “I’ll just use my watch, that’ll be fine.”  Oh no, my friends, the watch (or the laptop clock, or the phone) are no good.  The main problem with alternative timing methods is that these devices don’t ring when you’re done, so it’s easy to get absorbed in something, and blow right through your 25-minute interval.  At one point, I hit 50 minutes on one thing without even realizing it.  This is a problem, since part of the philosophy behind this system is to work in short, highly focused bursts.  You really need that “Ding!” at the end of 25 minutes to remind you to stop, especially if you are like me and you tend to get absorbed in your writing.  The next step for me, without question, is to purchase a kitchen timer specifically for my Pomodoro system.  I’ll keep you posted on the difference this step makes for me.

2.  You should time your breaks, and get up from your desk to take them.

The Pomodoro System is described in terms of 25-minute intervals of intense, focused work, followed by brief, 5 minute breaks that involve getting up and away from the computer.  I cannot stress enough how important both of those things are.  It’s way too easy to start a break by logging into your email, or some other insidious time-waster, and before you know it, it’s been 8 minutes, and you still haven’t even left your desk.  When that timer goes off, get up, and be back in 5 minutes.  I’ve considered playing with the breaks a bit, and giving myself 7 or 8 minutes instead, so one thing I’ll be reporting about in the future is whether the longer breaks are helping, or hampering my efforts.  So far, however, Jason is right.  Your break must be brief, and it must include getting up from your desk.

3.  There are times when the Pomodoro Technique seems disruptive.

One reason that I’ve decided to blog about the Pomodoro Technique as a tool for academic time-management is that it seems to be a technique that is better suited to office and business environments.  Not every academic task can be easily completed in only 25 minutes.  Sometimes I need to sit at my desk for an hour straight, and really dig in to something I’m writing.  And yet this system demands that at the 25 minute mark, I stand up, and take a break.  In the coming weeks, I’ll experiment with both sticking to the Pomodoro technique for these types of projects, and abandoning it in favor of longer work intervals.  I’ll also experiment with a “bundling” technique, where multiple 25 minute intervals are grouped together, and the 5 minute breaks that they require are similarly bundled when these longer sessions end.  Maybe this will work, maybe not.  There’s only one way to find out, and I’ll let you know how it goes.

If you’re like me, an academic who has a lot of irons in the fire, and a limited amount of time to hammer them out, stay tuned as I explore the effectiveness of the Pomodoro Technique for academic time-management.  With any luck, we can both learn to be a little more efficient as a result.

On Monday, January 23rd, the Supreme Court unanimously ruled that attaching a GPS device to a suspect’s car counts as a search, and therefore requires a warrant (Read the majority opinion here).  As a consequence of this ruling, the conviction of Antoine Jones, for drug trafficking, was overturned.  The primary rationale for this ruling was found in the Fourth Amendment, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Because Jones’s vehicle counts as property, it is protected against searches and seizures, including the attachment of a GPS device.

Here’s my concern.  Clearly, we don’t want government officials to be able to secure convictions by whatever means will make this possible.  The whole point of the Bill of Rights is to give citizens some protections against government intrusion into their personal lives.  But here’s the thing:  Antoine Jones really was guilty of drug trafficking, and now he’s going to go free.  Let’s set aside, for the moment, the question of whether drug use is morally bad, or whether it should be illegal.  For now, drug trafficking is illegal, and I think a case can be made that even if we ought not punish drug users, we ought to penalize drug trafficking and distribution.  Am I the only one who is bothered by the fact that a guilty man went free on the basis of a right to his personal property?

Let’s consider this case counter-factually.  Suppose Jones was not guilty of these charges, and the GPS tracking device revealed that he was not involved in any drug trafficking operations.  As a result, the investigating agency removes the device, without his knowledge, and no one ever finds out that the device was attached.  Jones suffers no loss of any sort, and he is not harmed in any way by this activity.  Why is this a problem?  Rights are supposed to protect people from harm, and the only reason Jones was harmed by a violation of his property rights is because he was engaged in illegal activity.  My suggestion is just that in cases where an individual is harmed by a rights violation only because he is doing something that is illegal or morally wrong, we might consider trading the rights violation for the prevention of the greater harm.  This sounds highly plausible when we also factor in the fact that the rights violation causes no harm to the individual in cases where he is not guilty.  In the absence of wrongdoing, the individual never knows his rights have been violated at all.

There are many responses one could give to my concern, but I’ll leave those replies to all of you, to be given as comments.  The point here is just that in all of our grandstanding and fist-pounding about rights, we should also consider the consequences of protecting those rights universally, and perhaps pursue more nuanced approaches that allow for the protection of individual rights without facilitating criminal activity that leads to massive social harms.  Protecting individual rights need not entail letting criminals go free, and when it does, perhaps we should consider sacrificing some of those rights for the sake of the greater goods that result.

SOPA, the Stop Online Piracy Act, is currently making its way around Washington, D.C., and the negative response of the online community is resounding through its marbled halls.  There are lots of places on the web where you might find explanations of what SOPA is about (here’s one), as well as why you should or shouldn’t support it (Here’s one of those, too, thanks to Brian Leiter for sharing it).  What I want to do here is just briefly consider three arguments that are floating around in the blogosphere, and evaluate their soundness.  By that, I mean that I will apply some basic philosophical analysis, to determine whether any of these are “good” arguments.  I won’t try to convince you of what to think about SOPA (and PIPA for that matter).  But I will try to help clarify what issues and principles these arguments turn on, so that you know where to look to find more information, and make a decision for yourself.

Argument #1

“SOPA is the sort of thing China would support!!!”

The argument here seems to be something like the following:

1.  If China would support a piece of legislation, we ought not support it.

2.  China would support SOPA.

3.  Therefore, we ought not support SOPA.

Let’s suppose the second premise is true.  Maybe it is, maybe not.  The point is, even if we grant this second premise, why would we think the first premise is true?  Surely there are pieces of legislation China would support that are not objectionable.  We participate in many international organizations of which China is also a member, and we’ve probably agreed about something during all that time together.  This first premise is falsified by a single piece of legislation that China would support, which we think we should also support.  I’ll leave it to you to explore whether there is such a piece of legislation, but I imagine it won’t take long to find one.

Argument #2

“SOPA is intended to stop online piracy, but there’s nothing wrong with online piracy, so we shouldn’t support SOPA.”

This position is much less popular than the first, in part because it involves supporting an activity that seems morally questionable, at best.  But let’s think about what an argument for this view would look like.

1.  We should support SOPA only if it would prevent morally bad outcomes.

2.  Online piracy is not a morally bad outcome.

3.  Therefore, we should not support SOPA.

Again, let’s grant the first premise, just for the sake of discussion.  You can look at the text of the act itself to see whether the prevention of morally bad outcomes is a reason that’s given in support of it.  But what about that second premise again?  Is it true that online piracy isn’t a morally bad outcome?  It’s certainly not a legally permissible practice, but not everything that’s illegal is morally bad.  What an advocate of online piracy who adopts this argument must do is explain why there’s nothing morally bad about online piracy.  This seems a dubious task.  Intellectual property is still property, and taking a person’s property is a form of theft under most circumstances.  Even if famous musicians and actors are still making a ton of money, as some piracy advocates point out, it doesn’t follow that these individuals aren’t wronged by having their property rights infringed upon.  The burden of proof, for this line of argument against SOPA, is on the pro-piracy constituent to explain why online piracy is morally permissible.  The prospects of making this case stick, I think, are not particularly good.

Argument #3

“There are less liberty-restricting ways to stop online piracy than SOPA.  So we ought to reject SOPA in favor of another bill that isn’t as restrictive.”

This argument already has some advantages over the other two.  First, it accepts a premise of the SOPA supporters:  Online piracy is bad, and we ought to try to prevent it.  However, it also appeals to a highly plausible principle about restrictions on liberty.  The argument here is something like the following:

1.  If we are going to restrict individual liberty, for the sake of preventing some bad outcome, we ought to do so in the least restrictive way that will still prevent the target harm.

2.  SOPA is not the least restrictive way to prevent online piracy.

3.  Therefore, we ought not support SOPA.

The first premise is, I think, hard to dispute, but I’ll leave it to commenters and respondents to try and do so.  The second premise is subject to debate, though there are a great number of people, such as the folks at Wikipedia and Google, who seem to think it’s true.  Since I don’t know much about online piracy, I’m inclined to believe the experts in that field.  And if the premises here are true, we have a sound argument for not supporting SOPA.

What’s the moral of the story?  First, it’s that even if online piracy is a morally bad outcome that we ought to try to prevent, SOPA probably isn’t the best way to do it.  By remembering that restrictions on freedom are themselves a harm, we are reminded that the prevention of bad outcomes ought not be accomplished by adopting policies with far worse consequences.

Thanks for reading, and I’m looking forward to your comments.

Hello,

There has, once again, been a significant gap between my last posting and this one.  Despite my best efforts, I grossly underestimated the time requirements associated with parenting, being a PhD student, and being an acceptable spouse.  Now that I’ve finally completed my PhD coursework, I hope to commit more time to Everyday Ethics.  That said, I want to note a few changes to the site, most of them methodological.

1.  In order to expedite the process of getting things up to speed, I have approved all of the comments that were awaiting moderation. This means that the occasional advertisement for penis-enlargements or cut-rate antibiotics from Canada may appear.  My apologies for this.  As I come across them, I will remove them.  Feel free to contact me to notify me of any objectionable material that you encounter.  Also, I will not be responding to any past comments, as part of my effort to “cut my loses” regarding past time lost, and move forward from here.

2.  Everyday Ethics has traditionally been a short-article-based forum.  This has been a contributing factor to the challenges I’ve faced in maintaining the site.  That said, I will begin posting short blurbs, in addition to longer articles, in an effort to maintain a regular flow of content. Expect at least two postings per week, though I will try to do more as I am able.

3.  Feel free to email me with information about philosophy, whether it be a conference, a good article that you’ve read, a question that you have, or anything else that may be of interest to the philosophical community (by which I mean anyone who thinks about philosophical issues, rather than just academic philosophers.  My goal is to create a forum for conversation about the intersection between philosophical ethics and everyday life.

That said, I hope you will enjoy the upcoming changes, and I look forward to hearing from you on the comment boards.

Cheers,

Eli Weber

Founder, Everyday-ethics.org

The recent revelation that Tiger Woods has been engaging in not one, but numerous extramarital affairs has cast a dark shadow on a sports figure that has otherwise enjoyed messianic status.  Tiger Woods is easily the greatest golfer of his generation, and possibly the best that has ever played.  He is also an iconic figure with whom numerous businesses have opted to align themselves.  Tiger Woods moves merchandise, from golf gear to shaving gel. 

Not surprisingly, several of Tiger’s sponsors have now opted to abandon their alliance with him, citing his moral indiscretions as sufficient justification for this decision.  But is this the right thing to do?  Does the fact that Tiger Woods is not the high-quality person that we took him to be somehow negate the fact that he is an excellent golfer?  Are we guilty of a category mistake if we suggest that Tiger’s sponsorships, or his opportunities to play golf, should be taken away because of his ridiculous behavior?

There are two ethical questions at work here.  The first question is whether one should be punished in their professional life for actions in their personal life.  The second is whether it is morally justified to break a contract because of immoral behavior.  I will here argue that the answer to the first question is no, while the answer to the second question depends on the nature of the contract.

Some individuals, rightly appalled by Tiger’s actions, have suggested that the PGA should punish him, perhaps by suspending him from future tournaments.  There are two reasons for rejecting this suggestion.  There is a strong precedent against doing so, and such a response threatens to unacceptably blur the line between the public and the private sphere.

Many famous people have committed egregious actions that irreparably damage their public image.  Kobe Bryant’s recent Colorado rape trial is a prime example of this.  But no one suggested that Kobe not be allowed to play basketball.  Magic Johnson contracted HIV through extramarital sex, but he was treated with warmth and benevolence rather than scorn.  Michael Jordan had a notorious gambling problem, but he is hailed as the greatest player of all time.  Why should Tiger be treated differently?

There is a more general concern with abandoning this precedent.  Golf is Tiger Woods’s job.  There is no expectation, or requirement of employment stating that one must be a good person in order to be a good golfer.  We tend to think that whether one ought to be retained in a particular job position depends on whether they are qualified for the job, rather than whether they are a generally decent person.  Suggesting that Tiger, Kobe, Magic, or Jordan should not be allowed to pursue their profession in virtue of their personal indiscretions would amount to a unique kind of discrimination.  From the standpoint of employment qualifications, one’s sexual behavior is usually an irrelevant consideration.

This brings us to the second consideration concerning punishment in one’s professional life based on actions in one’s personal life.  We tend to think that there is an important separation between one’s public life and one’s private affairs.  When one is a celebrity like Tiger Woods, this line is blurred considerably, and one might claim that the loss of this distinction is the price one pays for fame.  However, this imposes an arbitrary constraint on a person’s individual freedoms.  If one has a right to the maintenance of a public and a private sphere, the fact that a person is famous is not obviously a reason for violating this right.

The second ethical question raised by the Tiger Woods affair scandal concerns whether it is ethical to break a professional contract based on a person’s actions in their personal life.  This is a complicated question, and I will limit the discussion to one pertinent facet of it.  If Tiger Woods was hired as an endorser because of his public image and persona, and not merely because he is a good golfer, his sponsors are justified in abandoning their professional relationship for his personal actions.

Consider the nature of the contract in question.  Companies have hired Tiger because they believe an association with him will help them to sell their products.  Tiger’s role in the contract is presumably to maintain himself as a positive force for this purpose.  If Tiger has agreed to this type of relationship, anything he does that hinders his effectiveness as a marketing tool would be a violation of the contract.  While we have reason not to punish Tiger professionally, as a golfer, for what he has done in his personal life, we also have reason to punish him professionally, as an endorser, for the same actions.

Virtue ethics is somewhat helpful in understanding this distinction.  Tiger’s extramarital affairs do not make him a bad golfer, but they do make him a bad endorser.  Different standards are at work when we evaluate Tiger the golfer and when we evaluate Tiger the endorser, and only in the latter case does his personal conduct make a relevant difference. 

We have thus reached an interesting conclusion.  First, standards of personal conduct are only relevant to one’s professional life if the nature of one’s profession dictates as much.  This leaves us with a mixed evaluation of Tiger Woods.  It seems we can endorse his lost endorsements, but not any punishment from the PGA, for his extramarital affairs. 

It also helps us to understand how other celebrity scandals have been perceived.  While Magic, Kobe, and Jordan are still good basketball players even though they are not particularly good people, someone like Bill Clinton harms his credibility as President in virtue of inappropriate personal conduct, because appropriate personal conduct is part of the President’s job description (or so it would seem).  Our own mixed reaction to Tiger suggests that he is somewhat unique, a mixture of celebrity and quasi-statesman that we want to hold to a higher standard of conduct, despite having no good reason to do so. 

First and foremost, thanks to all of you who have waited patiently while I have put this website on hold in order to deal with some personal matters.  In the past month I have become a parent, moved from Colorado to Ohio, and started a PhD program.  Needless to say, I’ve been busy.  But as life begins to settle down, it’s time to get back to the business of everyday ethics.  After all, it’s not as though ethical questions just disappeared while I’ve been away.

In fact, a very interesting ethical problem emerged last week in the form of a landmark judgment against Pfizer, the world’s largest pharmaceutical company.  For the fourth time this decade, Pfizer was found guilty of encouraging the off-label prescribing of one of its products, in this case the arthritis pain medication Bextra.

While off-label prescribing is a common medical practice, it’s illegal for pharmaceutical companies to encourage it, market products for it, or educate doctors about it.  Pfizer did all of these things, mostly in the form of all-expenses paid educational conferences at lavish resorts with attractive amenities, all paid for by the company.  The judgment against Pfizer was massive:  $2.3 billion, plus ten years of government oversight regarding their marketing procedures.

One U.S. attorney cited a problematic group norm as part of the explanation for Pfizer’s continuous violations.  Pfizer, according to this attorney, is plagued by a pervasive belief that penalties are a part of doing business.  In other words, the financial payoffs of marketing off-label uses are worth the threat of punishment.  Pfizer’s employees seemingly subscribe to a kind of group relativism.  According to their group norms, Pfizer’s risks, to themselves and others, are justified by the profits that these risks produce.

I must give credit to my students at Bowling Green for pointing out that Pfizer’s group relativism doesn’t necessarily commit us to the view that their risk-taking is morally justified when it produces profit, even if we adopt group relativism ourselves.  For one thing, Pfizer’s risks affect people that don’t subscribe to Pfizer’s social norms.  Even if Pfizer thinks their actions are morally acceptable, that doesn’t mean the non-Pfizerites of greater society can’t disagree.

Further, as my students pointed out, the norm that says profit justifies harm isn’t the only norm that Pfizer subscribes to.  As a for-profit company, Pfizer has a duty to meet the needs of their shareholders, namely providing them with reasonable financial dividends.  At some point, Pfizer’s propensity for collecting hefty fines will interfere with this duty.

What does this tell us about group relativism?  One of the criticisms of group relativism is that it doesn’t allow for criticisms of a group’s moral rules by people who are not members of that group.  Pfizer’s norms are theirs, our norms are ours.  But my students have demonstrated that it is possible to criticize another group’s norms without rejecting group relativism as a theory.  None of the criticisms my students raised rely on any appeal to an objective moral theory, or even a theory other than group relativism.

This also tells us a few things about everyday ethics.  First, even individuals with minimal training are capable of sophisticated philosophical analysis, provided they think critically about relevant concepts.  Further, this example demonstrates the usefulness of using everyday examples as a vehicle for investigating and evaluating ethical theories.  By applying theories to real cases, we can better understand what those theories are and are not committed to.

In a recent article published in The American, farmer Blake Hurst attempts to make a positive case for industrial agriculture.  Hurst makes two key points, both of which reflect questionable assumptions that come to light in the face of philosophical analysis.  Hurst also provides us with an excellent opportunity to demonstrate the practical applicability of philosophical tools to real world, everyday problems.

Hurst’s first point is that farmers who use industrial techniques do so not because they are sadists, but because they are trying to maximize profits.  For example, sow stalls are utilized not to torture pigs, but to protect piglets from being harmed by their own mothers.  A live pig is worth more than a dead one, as Hurst puts it.  Farmers aren’t trying to hurt their animals; they are simply trying to make a living.

There are two assumptions at work here, the revelation of which serves to undermine Hurst’s point.  First, Hurst assumes that critics of industrial farming think it is sadistic.  But the critics are not as ill informed as Hurst assumes.  The issue is not whether or not industrial farming is sadistic, but whether it is inappropriately painful for the animals.  Further, Hurst assumes that the economic benefits of industrial techniques justify the harm that these methods cause.

Hurst’s second point is that only industrialized agriculture is capable of “feeding the world.”  Again, several assumptions are at work.  First, Hurst assumes that we ought to be trying to feed the world, whatever the costs of doing so might be.  Second, he fails to consider the negative correlations between industrialized farming and human hunger.  Industrialization breeds agricultural monism.  In other words, it’s tough to grow a variety of crops using industrial techniques, but humans can’t survive by eating nothing but soybeans, rice, and wheat all the time.

In addition, industrialized agriculture has made the conspicuous consumption of animal products ubiquitous at the global level.  Using traditional methods, there is no way the entire human population could eat the way Americans do.  Without industrial agriculture, Americans couldn’t do so either.  The problem is that globalization has made the American diet of mostly animal products the gold standard for nutritional preference across the globe.  Industrial agriculture masks the unsustainable nature of this way of eating.

In short, Hurst’s entire argument rests on a series of questionable and unsupported assumptions.  It is certainly possible to defend meat consumption, and even industrial agriculture, provided one is willing to address the pressing concerns we’ve mentioned here.  More importantly, philosophical analysis allows us to see an initially compelling argument in its true light.  By thinking critically about these sorts of everyday issues, we can begin to separate legitimate arguments from unsupported moral rhetoric.

The frequency of my postings has become somewhat lax as of late.  My wife just gave birth to our son, Brandon, on August 6th, and we have since had to move out of our apartment in Fort Collins.  We will be in transit to Bowling Green, Ohio, where I will be starting the PhD program in philosophy, until August 20th.  I will do my best to remain on schedule with postings, but may fall behind at times over the next several weeks.  My apologies, and I hope you all will bear with me until things settle down a bit.

Most people who are capable of critical thinking tend to revile the inefficiency and mindlessness of most bureaucratic institutions.  One source of this frustration stems from the blind allegiance to rule-following that bureaucracies tend to breed.  Many of us have had the unpleasant experience of being denied some reasonable request on the grounds that honoring it would be a violation of “our policy.”

Socially, this type of experience is frustrating.  Philosophically, it’s worth trying to get to the root of why this type of experience is so infuriating, and whether the results of our analysis might apply to any other areas of social discourse.  One explanation for the frustrating nature of bureaucracies is that they lead to a kind of rule-fetishism.  Our purpose here will be to articulate what rule-fetishism is, and why it is problematic for both social bureaucracies and moral judgments.

Rule-fetishism has three key features.  First, rule-fetishism requires that one zealously follow whatever rules apply to the context at hand, whether moral, social, political, or otherwise.  Second, rule-fetishism sees specific, contextual considerations as irrelevant to whether a rule applies.  Finally, rule-fetishism requires that one fail to understand why a rule applies as it does.  To be guilty of rule-fetishism, a person must zealously follow relevant rules, no matter the circumstances, and without understanding why the particular rule in question exists or applies in a given case.

Here’s an example of how this applies to bureaucratic decision-making procedures that I recently experienced.  I was trying to have a TB skin test read at the local hospital, which was not the location where I had the test administered.  When I arrived at the lab, I was told that no one in the hospital was permitted to read my test for me because it was not adminstered there.

This was a clear-cut case of bureaucratic rule-fetishism.  The hospital employees were committed to following the hospital’s policy, with no regard for relevant details, such as the fact that my doctor’s office was closed, that it was the last day my test could be read and still considered valid, and that my doctor had told me that I could have it read there.

In addition, when I questioned this policy, the hospital employees were unable to give me a legitimate reason for why they couldn’t read my test.  Any RN is qualified to read a TB test, it takes less than a minute to do so, and I was happy to pay for the service.  However, their policy is that only tests administered at their location can be read there, and they apparently saw no need to justify such a rule to anyone, including themselves.

Rule-fetishism is also problematic in the moral case, possibly even more than in the social.  It is an especially compelling concern for deontological normative theories, which claim that people have certain moral duties that apply in most, if not all cases.  Immanuel Kant’s prohibition against lying to the murderer at the front door is a great historical example of moral rule-fetishism.

In general, the concern is that if one follows moral rules zealously and absolutely, with no regard for why such rules apply, one runs the risk of making the wrong moral judgment without realizing it.  Most people think that if a murderer comes to your door and you are hiding their desired victim inside, it would be wrong to tell them that you are hiding this person, even if they asked and you were forced to lie in order to protect their potential victim.

Kant famously claimed that even in this case, it would be wrong to lie.  The prohibition against lying is to be zealously followed, and contextual considerations are irrelevant to whether the rule applies.  If one were also to follow this rule without understanding it, one would be guilty of rule-fetishism.

Not knowing why you ought to act in a particular way, but insisting that you must do so anyway is frustrating when it arises in our everyday social interactions.  But it is especially detrimental to our moral decision.  We will probably never be confronted with a murderer at our front door whose victim we are hiding, but we will undoubtedly be faced with numerous everyday moral situations where rule-fetishism might inhibit our ability to do the right thing.  It is not enough simply to follow the rules.  We must also understand why they exist, and when they do or do not apply.

It now appears that Sonia Sotomayor is going to be confirmed as the next Supreme Court Justice.  Two significant criticisms of Sotomayor’s performance during the confirmation hearings have emerged, both of which reflect opposing ideologies.  One criticism, from the political right, is that Sotomayor is a judicial activist who played the political game properly, but who remains a significant danger to the conservative agenda for precisely the reasons that initially caused the critical response to her nomination.

The other criticism, from some on the political left, is that Sotomayor lacked the strength of conviction to stand before the committee and speak to what she truly believed.  She really does think that race and gender are relevant to legal judgments, but for political reasons, she opted to play it safe and say what the committee wanted to hear.  The first criticism charges her with sneaky political maneuvering, the other with a lack of integrity.  Neither of these are a good thing for a Supreme Court justice to be guilty of, but she will probably be confirmed in spite of them.

Both of these criticisms are significant precisely because they point to a glaring problem in the way that we evaluate Supreme Court nominees.  Because they are appointed for life and are not held accountable for their rulings in any relevant way, there is a strong pressure to say whatever the political climate demands during a justice’s confirmation hearings.  In Sotomayor’s case, this meant preaching the gospel of judicial impartiality, whether or not she believes in it.

There is another criticism to be raised here, not only of Sotomayor, but also of the Senators who have pushed the issue of judicial impartiality.  Specifically, two concerns loom over this concept.  First, judicial impartiality, as these individuals have defined it, is impossible.  Second, it is necessarily a kind of partiality, making it a self-contradictory concept.

Let’s start with the first worry, that judicial impartiality isn’t possible.  This is a fairly simple claim.  If I am a wealthy white Southerner, I’m going to perceive the facts of a particular case through the eyes of a wealthy white Southerner.  That’s what I am, and it would be a serious mistake to think that social factors play no role in how one evaluates facts.

Consider an alternative example to make the point.  If I am scientifically minded, I take the fossil record to be a validation of the theory of evolution by natural selection.  If I am religiously minded and take the Bible to be a factual history of the creation of the world, I take the fossil record to be a test of my faith given by God, or perhaps an example of flood geology at work.  The same facts take on a markedly different interpretation when viewed through the lenses of wildly different life experiences.

Two further points should be made here.  First, to say that we interpret facts through social lenses is not to say that there are no facts of the matter, or that all interpretations are equally good.  But there is a serious question regarding how much we can extrapolate away from those social lenses and get at the objective facts, when they exist, whether such facts concern a scientific discovery or a court case.

The second concern is related to, but distinct from the first.  Let’s assume, for the sake of discussion, that judicial impartiality as defined is possible.  Why think it’s preferable, even if we could achieve it?  To disregard considerations of race, gender, or poverty in favor of facts that we take to be objective in a way that these factors are not is to make an evaluative, rather than an epistemological judgment.  We need a reason for weighing some facts as more important than others for our legal judgments.

In other words, why are facts about a person’s race, gender, or social class less relevant than facts about what a piece of legislation says?  The judicial impartiality being advocated is a kind of partiality, one that favors certain kinds of facts over others, and without a compelling reason for doing so.  If facts about a person’s race or gender were somehow less objective, or illusory in some relevant way, that would be one thing.  Because they are not, we have a kind of partiality disguised as judicial objectivity.

If this admittedly rough analysis is even moderately on track, the advocates of judicial impartiality have a serious problem.  Their standard of impartiality is akin to the infamous “view from nowhere” that is derided across philosophical circles.  Further, and more significantly, even if such a view were possible, it’s not clear what makes it impartial, not to mention desirable for making legal judgments.  Granting the possibility of this viewpoint does little to substantiate why it is the judicial perspective that we ought to favor.

It’s not surprising that Sonia Sotomayor chose to play the political game rather than take the risk of defending what I am fairly certain she actually does believe about the role of factors like race, gender, and social class in making good judicial decisions.  Her addition to the court will probably be a good thing precisely because she doesn’t hold to the confused concept of judicial impartiality with which she was criticized.  It is, however, unfortunate that the opportunity for philosophical growth and maturation regarding the absurdity of this concept was not taken advantage of by anyone who participated in her confirmation hearings.