Thursday, August 06, 2009

The Myth of Impartiality

By now you've probably heard all about Sonia Sotomayor, who the Senate confirmed today to the US Supreme Court. I should probably preface what follows with the note that I haven't gone looking into her legal record, I don't know how she would vote on hypothetical cases. I simply don't have the time to get into it. But I'm happy for her. I'm happy for a number of reasons:

1) Anytime a bunch of people talk smack about you, it's hard not to root for them anyway.
2) When you hear about her bio, it's just one more reason to root for her.
3) A Supreme court filled with white men, no matter how brilliant they are, is lacking something.

And that last point is what a lot of people are complaining about - she's Latino, and she's proud of it, and she doesn't pretend she's not. Stephen Colbert did a Brilliant Job with this awhile back, and ever since then it's been in the back of my mind. Many Conservative pundits were complaining that Sotomayor would let the fact that she's a Latino woman affect the way she rules on cases. They complained she couldn't be impartial, and for that reason, she wouldn't be a good judge. But the problem with this line of thinking is, impartiality is a myth!

The image of justice is a blindfolded woman, because it evokes the idea that she doesn't take into account context, just the facts. Justice is blind. That maybe the case, but those who seek to judge are not. Juries prejudge, which is why we eliminate jurors. Lawyers prejudge, which is why they decline taking cases, or get fees up front. And when we make decisions, we take into account everything we know. But when you have a group of like-minded people making judgments, they're simply not taking into account what they don't know. What a bunch of white men don't know is what a Latino woman went through, what she saw, what she experienced. And that's valuable. That's why she needs to be on the supreme court.

We create laws out of our experiences, and we change laws out of our experiences, we shouldn't pretend that when it comes to interpreting those laws that those same experiences have no place. We're lying if we buy into the myth that any one of us is completely able to act and think impartially. If postmodernity has taught us anything, it's that there is no way for us humans to act or think completely outside of our experiences. We are bound to them, and so we should accept them. Having Sotomayor serve on the Supreme Court gets a little closer to balancing the scales of experience so that maybe, just maybe, the myth of impartiality will not distort the justice that they seek to serve...


DDerus said...

Let's be fair. It is not a group of white men. Their is Clarence Thomas who is African American and Ruth Bader Ginsberg who is a woman. Their is also Sandra Day o'Connor who is still alive but retired. They are also not all like minded. Including Sotomyor the Court is about 6-5 conservative v. liberal.

Finally, I would love some concrete examples of how you think her unique experience will lead to a better rounded court.

Beloved Spear said...

What hornswoggles me is that most of the folks crying for objective justice claim to be Christians. By any Biblical standard, there is no justice without empathy. Ain't just Jesus, neither. If Solomon hadn't allowed empathy to guide his decisions, he'd have been meting out a whole bunch of halved-babies.

We are a strange, strange society.

Don said...

DDerus - when the nations' men:women ratio is 50:50 and a court of 9 (currently serving) has only 1 woman and only 1 of 9 is not Caucasian, I don't think I'm entirely unfair to refer to it as a group of white men. Truth is, Liberal & Conservative is a red herring. Who knows how someone will vote on a given case when they get on the court. Just because you or I describe them as "Liberal" or "Conservative" - doesn't mean much. What I can say, is she is a woman, and she's Latino. That I know for sure.

As for concrete examples, it's not exactly possible to create them ex nihilo. But her unique story, as an outsider in this nation (us white people don't have that same perspective) - gives her a perspective the rest (save Thomas) has. That's valuable. It's the same reason when I create a committee, I invite men & women, young & old to join because I want different perspectives - it's in those perspectives that we can come to a consensus that fits more than a small sampling.

Spear - Unfortunately for many Christians, the concept of objectivity is the final thread being held onto - if we don't have access to objective truth, how can we proclaim the gospel? We've missed the boat on faith - and it goes back, sadly, to the moment we became the majority (Constantine) and I think we chose the wrong side.