Judge Sotomayor, Republican Inquisitors, and the Fallacy of Immaculate Perception
"You who are immaculate, you pure perceivers.... Behind a god's mask you hide from yourselves, in your 'purity.'" -- Friedrich Nietzsche
Nietzsche is widely regarded as the originator of the philosophical stance known as "perspectivism," which claims that one's perceptions and judgments are never pure or immaculate, because they are always colored by the perspective one brings to the acts of perceiving and judging. Perspectivism was further developed in the philosophy of understanding, called "philosophical hermeneutics," elaborated by Hans-Georg Gadamer. Axiomatic for Gadamer was the claim that all understanding involves interpretation. Interpretation, in turn, can only be from a perspective embedded in the historical matrix of the interpreter's own traditions, the fabric of preconceptions that Gadamer called "prejudice." Such interpretive prejudices cannot be eliminated; finite human beings cannot attain a God's-eye view of anyone or anything. What one can do -- and what judges must do -- is reflect upon one's preconceptions and prejudices so that they do not unconsciously determine one's decisions and actions. It is precisely this self-reflective attitude that Judge Sotomayor has exhibited in her response to her Republican inquisitors:
I was talking about ... the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that it's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and not have feelings. We have to recognize those feelings and put them aside.... I think the system is strengthened when judges don't presume they're impartial, but when judges test themselves to identify when their emotions are driving a result, or their experiences are driving a result, and the law is not.... In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result.
Clearly, Judge Sotomayor's thoughtful, self-reflective perspectivism has little to do with any personal agenda or legal relativism. When Republicans like Senator Jon Kyl accuse her of advocating personal interpretation of the law and of "relativism run amok," they arrogate themselves to the position of immaculate perceivers, blindly enacting their own ideological prejudices in the name of impartiality.
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When Sotomayor was asked about a paper she had written that political contributions amounted to a bribe, and asked directly if she thought they are a "bribe", Sotomayor answered "no". She does not even have the backbone to stand behind her own convictions. Yes, she wanted the job and is willing to say anything to get it. That doesn't sound like "a wise latina who has better judgement than a whole gaggle of white males".
The problem I have with Judge Sotomayor is that she gave into the Republican misinformation project that judges don't make law and that judges don't use their experiences in their decisions. Look closely at what Sotomayor said here, "In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result." Why is it that "in every case" where she identified a sympathy the person she had sympathy for was on the losing end? That question was never asked. The problem with Sotomayor is that she is too conservative of a judge and she buys the Republican propaganda that judges shouldn't let their personal experience affect their decisions. Of course every single Republican let's THEIR feelings affect THEIR decisions so why is it that only the liberal side are not supposed to be empathetic?
Every judge rules with their feelings: feelings about who is the credible witness, about what is equity and fairness, about what is a fair sentence or penalty, about whether the person or party who is trying to use the law to their own advantage deserves that advantage or has "unclean hands" and should not gain an advantage by the law, etc. The greatest Supreme Court justice, Earl Warren said "I am certain that my lifetime experiences, even some of the earliest ones, have had an effect on the decisions I have rendered...." Those are the decisions we need more of.
History's great philosophers are turning over in their graves knowing what sorts of morons make up the GOP.
"When Republicans like Senator Jon Kyl accuse her of advocating personal interpretation of the law and of "relativism run amok," they arrogate themselves to the position of immaculate perceivers, blindly enacting their own ideological prejudices in the name of impartiality."
they certainly arrogate themselves, that's not news. watched maddow lately? heard about the"family" at C street? all par for the course. question is when will we stop electing these people as our "representatives"?
Does Judge Sotomayor accept that the Bill of Rights, the first ten amendments to the Constitution of the United States, can and must be enforced on behalf of the people by either the States, the most desirable case, or if the States refuse to do so, by the Federal government against the States on behalf of the people. This means all ten amendments, not just some of them.
OH PLEASE !!! did you really think that this was an 'inquisition'?? The US Senate doing what it is supposed to do...question a nominee to try to determine their qualifications.
Perhaps you are too young to remember Judge Thomas before the committee when Anita Hill , after deep hypnosis, was able to recover all of her repressed memories.
Surely you are far to young to remember Judge Bork before the committee.During those hearings, Sen Kennedy not only lead the inquisition, he also organized the crucifixion
Now THAT was an inquisition..
No, it wasn't an inquisition. It was a pitiful display by clueless, racist white men who asked stupid, pointless questions and loved to hear themselves hold forth. They certainly weren't listening to any responses.
amen!
I second that empthy!
This is by far the most succinct and powerful commentary on what occurred this week. Others, like Rev. Wallis, are in the park; however, this one is a homerun, cutting right to a deep problem in many Senators'--many Americans'--thinking. This problem of hypocritical, crude "superiority of perception" is, as the article alludes, rooted in an almost proud anti-historical, relativistic view of the world. (Take that, Senator Kyl!) This view holds that context doesn't matter. Actually, the disposition is something like this: "Context doesn't matter . . . unless it's my context." Thanks so much Mr. Stolorow!
Great article and great quote by Nietzsche.
The weeks leading up to the hearings and the hearings themselves have provided beautiful examples of Gadamerian prejudice. Accusations that she is a racist required those accusers to focus on one line about the "wise Latina" and take that line out of context, to decontextualize it, and repeat it ad nauseum. Of course in doing that, they revealed their own prejudice: they see the world through their (in this case, largely white male) eyes. Interestingly, they don't know that that is a form of prejudice. They just think that it is normal, the right, correct view.
When several of them noted that her demeanor and answers in the hearings didn't jibe with their view of her from her speeches, I understand that to mean: "I turned you into a crazy racist by taking your one phrase "wise Latina" and repeating it out of context in an endless loop, but I can't maintain that picture of you when you sit in front of me speaking calmly and clearly and when you explain the context of the phrase." They think she has changed, but it is more likely that they have to reevaluate the "limits of their horizons" ie question their preconceptions to make room for the real person sitting in front of them.
I believe that Judge Sotomayor's "temperament" and rational, unemotional and non-activist responses to personally-charged questions speak volumes to her strict discipline and ability to separate her personal and thought-provoking concepts from her ability to rule by law. The Republican'ts found her contradictory and to that, I say: EXACTLY!
We watched a woman leave her personal beliefs at the door and proceed with indifference and lack of personal bias. In the end, Sotoymayor proved how able she is to serve on the USSC simply by showing her ability to do so. The Republican'ts who are baffled simply don't get that she proved, without a doubt, that she will serve on the court exactly the way they want her to -- without personal bias.
Jennifer
The “Republican Inquisitors” know they can't stop her confirmation.
They're trying to accumulate video clips of themselves defending the GOP faith against minority intrusion. You can bet they will play those clips during the next election cycle for their ever diminishing low-information-voter base.
Unfortunately, Judge Sotomayor's judicial record and testimony clearly demonstrate a hostile view of the Second Amendment and the fundamental right of self-defense guaranteed under the U.S. Constitution.
It is only by ignoring history that any judge can say that the Second Amendment is not a fundamental right and does not apply to the states. The one part of the Bill of Rights that Congress clearly intended to apply to all Americans in passing the Fourteenth Amendment was the Second Amendment. History and congressional debate are clear on this point.
Yet Judge Sotomayor seems to believe that the Second Amendment is limited only to the residents of federal enclaves such as Washington, D.C. and does not protect all Americans living in every corner of this nation. In her Maloney opinion and during the confirmation hearings, she deliberately misread Supreme Court precedent to support her incorrect view.
In last year's historic Heller decision, the Supreme Court ruled that the Second Amendment guarantees the individual's right to own firearms and recognizes the inherent right of self-defense. In addition, the Court required lower courts to apply the Twentieth Century cases it has used to incorporate a majority of the Bill of Rights to the States. Yet in her Maloney opinion, Judge Sotomayor dismissed that requirement, mistakenly relying instead on Nineteenth Century jurisprudence to hold that the Second Amendment does not apply to the States.
It seems to me that you would argue that Laws on the books to restrict individuals to carry firearms on School grounds and Airplanes should be overturned. The second amendment, in your view is opposed to this, no? The case you speak of, Sotomayor doesn't say that the Second Amendment doesn't apply to the states in all cases. Just the case at hand. The specific facts of each case is what the judgment is based on, and you can't broaden and expand the meaning out as far as you are trying to do. We currently have laws on the books that restrict the rights of firearm owners in vary specific areas and situations, as I made example of above, and I think just about everyone would agree that those instances are legally warranted, and justifiable. You try to stretch the outcome of this case to cover more ground than it actually does, and incorrectly interpret the finding. She is not against the Second Amendment.
I am just so sick of everything boiling down gun ownership. Besides, your are the one who is misreading Heller not her. The Court in Heller specifically restricted its decision to deal with D.C. Judge Posner, a respected conservative, ruled the same way on 7th Court of Appeals. It is ironic that those who accuse her for being an "activist judge" really wanted her to be an activist judge in Maloney,overturning "Nineteenth century" precedents, which the Supreme Court in Heller did not overturn.
There is no fundamental right to use a gun for self defense. The Second Amendment has been misinterpreted by conservative judicial activism turning the purpose clause of the Second Amendment into mere surplusage as a "prefatory clause." No other amendment has such a so-called prefatoy clause. The conservatives just decided by their judicial activism to render moot a whole clause of the Constitution. What a crock of lies these conservatives sell.
The 2nd Amend has two clauses, the first purpose clause and the second operative clause. The operative clause "the right to keep and bear arms" is an individual right, but that individual right is circumscribed by the purposive clause of a well regulated militia being necessary for the security of the state. The 2nd Amendment only guaranteed the individual right to keep and bear arms for the purpose of maintaining a well regulated militia. It doesn't mean that only a person currently in a militia may bear arms but that any individual who keeps and bears arms is subject to bing called up for service in the militia. So the right to keep and bear arms may be prohibitied to anyone who is not eligible for militia service such as due to age, mental incapacity or felony criminal record. That is the correct reading of the 2nd Amend that makes the District of Columbia law unconstitutional, not the concervative's judicial activism that erases the first clause of the 2nd amendment entirely.
does Scalia put aside his homophobic bias when he makes judgement? I bet not. Despite incessant speeches proclaiming it, he never recuses himself. Is he biased? Should he be impeached? How about asking those questions.
Roberts believes in unfetter free enterprise. Does he put that aside when he makes rulings? I bet not. I bet not. Despite incessant speeches proclaiming it, he never recuses himself. Is he biased? Should he be impeached? How about asking those questions.
The real bias is applying the "rule" to Sotomayor. At least it appears that she tries. Does Scalia try? Let's ask him. does Robert try? lets ask him.
Or did Alito put aside his pro-Italian-immigrant bias when he ruled on the Ricci case? (As Glen Greenwald asked.)
Conservatives view right wing biases as acceptable because, unlike women and members of other ethnic groups, white men are by nature impartial; except, of course, if those white men happen to be liberals.
or as my father used to say, 'when [fill in the blank] has his pants on, the whole world is dressed."
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