Conservatives are in a tizzy over the prospect that Judge Sonia Sotomayor may allow her race, sex, or background to affect her judgment if confirmed to the Supreme Court. The back and forth between Sotomayor and GOP Senator Jeff Sessions of Alabama was a case in point. Sotomayor, Sessions gleefully pointed out, once said she could "accept that there may be sympathies, prejudices, and opinions that legitimately can influence a judge's decision."
To which Sen. Sessions asked, "Do you think there's any circumstance in which a judge should allow their prejudices to impact their decision-making?"
Sotomayor said no: "What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome. Life experiences have to influence you. We're not robots who listen to evidence and don't have feelings. We have to recognize those feelings and put them aside."
Sessions' concern was whether Sotomayor believed she could ever fully put aside her own feelings in order to apply the law impartially. "Aren't you saying there that you expect your background and heritage to influence your decision-making?" he wanted to know. "How can that further faith in the impartiality of the system?"
Sotomayor's wise Latina response was, "I think the system is strengthened when judges don't assume they're impartial, but when judges test themselves to identify when their emotions are driving a result, or their experience are driving a result and the law is not."
Sessions was unmoved: "So you willingly accept that your sympathies, opinions and prejudices may influence your decision-making?" Sotomayor: "Well, as I have tried to explain, what I try to do is to ensure that they're not. If I ignore them and believe that I'm acting without them, without looking at them and testing that I'm not, then I could, unconsciously or otherwise, be led to be doing the exact thing I don't want to do, which is to let something other than the law command the result."
This is precisely the value of diversity: It can take people who are not living in the bubble of prosperous white male privilege to recognize how the markings of their identity may shape their actions. To ignore the real ways that our experiences, background, ambitions, and emotions affect us is a recipe for the destructive unconscious behavior -- discrimination, hypocrisy, dishonesty, infidelity -- that so many powerful white men engage in (especially, it seems, politicians). Too many of them live their lives in an emotional closet of which they know not.
The whole show between Sessions and Sotomayor was, of course, a trap. And it was tinged with the destructive cluelessness of white male privilege. The implication of Sessions' inquisition was that, as a white male with no distinguishing "heritage" to speak of, he and his ilk can make judgments totally free of feelings, belief, or experience, that they are not prone to ever make a judgment that could be clouded by who they are. A Latina woman, however, is a dangerous addition to the Court because her "difference" could shape her judgment.
In fairness, it was Sotomayor's comments on the topic, not her race and sex per se, that prompted the grilling. But the sloppy thinking behind the questions is clear: It's as though genteel white men are the primal mold of the fair and impartial human being, and any mark of racial, gender or class difference from that mold is a fall from the archetype. An "alternative" brain like this, it would seem, threatens to produce a "different" judgment, which, to fearful white men, means partial, incorrect, and not in their favor.
Sotomayor, of course, is absolutely right, and Sessions, as a lawyer, should know it. As the nominee points out, "there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences." The language of statute, and of legal concepts and precedents, is full of words that ask the people of each generation to apply the law in light of their time and place. This is why laws speak of a "reasonable person," a "rational basis," and a "compelling state interest" -- what is reasonable, rational or compelling to one person in one time and place will be totally different in another, and to someone else. And that's by design.
Does Sen. Sessions really think the group of white male judges who, in 1896, ruled that racial segregation was Constitutional, were free of bias? Does he think they made that reprehensible decision because they were just a few bad apples in an otherwise morally flawless era? Absurd. They were products of their time. And their sympathies, beliefs and prejudices shaped their decision then, just as happens now.
And does Sen. Sessions really think that Justice Antonin Scalia would have insisted that there is no fundamental right to homosexual sex, and that the ban on sodomy was "rationally related to a legitimate state interest" if that judge had been gay, known gays, or grown up in Cambridge or San Francisco? (Ok, the latter is no guarantee.) In an amazing story, Justice Lewis Powell, who cast the deciding vote in that notorious 1986 case upholding anti-gay sodomy bans, told a respected law clerk that he'd never known a gay person. The clerk was gay. Had he come out -- instantly re-shaping Powell's life experience -- history could have been very different. Indeed, some years later, Powell said he "may have made a mistake on that one."
At times, Sotomayor fell for Sessions' trap, saying she of course did not believe her own feelings ever shaped her judgment: "My record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case." Hogwash. As you wisely pointed out, Judge Sotomayor, experience shapes position, and the workings of the human mind are often unconscious; thus the "record" would never show how your personal sympathies affected a case. The point, as you started to say, is to accept that different positions can result from different experience, to try to keep your emotions in check when you interpret the law, but to recognize that no one can ever fully shed his or her passions as a judge or a human being.
Keep telling the truth, Judge Sotomayor, and throw that truth back in the faces of your white male inquisitors: Tell them their whiteness and maleness do not exempt them from the beliefs, emotions, and, yes, prejudices (Lord knows, prejudices) we all bear, this blend of messy ingredients that, for better and for worse, constitute the human condition.