Everyday Ethics

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.

About the Author

Elijah Weber is a graduate student at Bowling Green State University. He holds a Master's degree in philosophy from Colorado State University, and Bachelor’s degrees in sociology and philosophy from Chapman Univerity. He currently lives in Ann Arbor, Michigan with his wife Laura, his son Brandon, age two and a half, and two cats, both of whom are mentally deranged.