Wednesday, May 27, 2009

Expanding Our Idea of What Reason Is

Yesterday when President Obama announced Sonia Sotomayor as his choice for replacing Supreme Court Justice David Souter, I was glad, finally, to hear that he was doing something I could really get behind.**** Naturally, then, that choice immediately came in for a barrage of nasty, even hateful attacks. Today, feminist theorist Linda Martín Alcoff has a piece on Common Dreams, Sotomayor's Reasoning, that addresses criticism of the nominee's forthright declaration that gender and ethnicity "may and will make a difference in our judging." As Alcoff notes, "Such views are widely held, but not widely expressed or defended. The difference with Judge Sotomayor is simply that she has put the view out there." Alcoff, by the way, addresses criticisms from both the right and the left, noting that many on the left are confused about identity and see any open articulation of it as susceptible to rigid stereotypical spinning. "Meanwhile," she notes,

people on the street know better. They know that identity is a rough guide to experience, and that experience affects how we see things, what we notice, how we gauge the plausibility of a story, or the credibility of a speaker. It also affects what background understanding we have at our disposal, such as what life is like for children in diverse families, or among those who live paycheck to paycheck, or without paychecks. And it affects what baseline information we happen to know without having to do any research, such as knowledge about the sterilization abuse inflicted by the United States on Puerto Rican women or the history of treaty violations with American Indian tribes.

Reasoning involves judgment calls, not deductive logic. The judgment of relevance, coherence, and plausibility can be more or less rational, but they are never axiomatic.

Alcoff refers back to the inability of the Senate Judiciary Committee to hear and understand Anita Hill's testimony during Clarence Thomas's confirmation hearing.

Judge Sotomayor has simply stated upfront what most of us know full well: identity affects experience, and experience makes a difference in our judgment. It is never absolute or foolproof: Clarence Thomas's own background did not lead him to the left, thus showing that no identities are flat or monochromatic. We each have to interpret on our own what our identities mean, and in what way our experience is, or is not, relevant to a given situation. Acknowledging the relevance of identity does not replace reason with politics; it simply expands our idea of what reason is, and makes it more reasonable.

Glenn Greenwald's Justice Samuel Alito on Empathy and Judging (originally appearing at, considers the double-standard Judge Sotomayor faces, in comparison with the reception given Samuel Alito's nomination to the Supreme Court. His piece begins:

As is true for any Supreme Court nominee, there are many legitimate questions to raise about Sonia Sotomayor, but the smear attacks on her as some sort of "identity politics" poster child -- which are still being justified largely if not entirely by the Jeffrey Rosen/TNR gossipy hit piece on her -- are nothing short of disgusting. As Anonymous Liberal put it: "Apparently, the only way to avoid 'identity politics' is to pick white men for every job." Both Adam Serwer and Daniel Larison note the glaring, obvious hypocrisy in simultaneously insisting that "empathy" has no place in the law while protesting Sotomayor's decision in Ricci on the completely law-free ground that what happened to the white firefighters is so "unfair." And Matt Yglesias writes that he is "really truly deeply and personally pissed off my the tenor of a lot of the commentary on Sonia Sotomayor" and, in a separate post, notes the wildly different treatment between Sotomayor and Sam Alito despite very similar records.

Do check out both of these pieces.

PS I hope to be doing some WisCon reporting soon.

****ETA Looks like I spoke too soon. I really can't get behind anyone who isn't clearly going to be supporting abortion rights-- as it now appears may be the case with Sonia Sotomayor.*****

*****ETA Although I probably did speak too soon, it looks as though my misgivings on abortion rights are misplaced. See Nancy's comment below.


Josh said...

I'm not totally behind Sotomayor, given her opinions on workplace privacy and on the FOIA. I can see her being way too deferential to the executive and insufficiently supportive of labor. Seems to me there were one or two more liberal options on Obama's shortlist.

Timmi Duchamp said...

Very true. But I'm thinking there's a hope she'll grow into the job, the way Justices useta do in the Olden Days. (& of course you didn't really expect Obama to back someone more liberal, didja ya? Considering what we've seen so far?)

Timmi Duchamp said...

Well Josh, it looks like I'm going to have to eat my words. Abortion rights, for me, is a deal-breaker.

Josh said...

You're talking about the Center for Reproductive Law ruling? Like I said, deference to the executive.

Nancy Jane Moore said...

For a measured look at Sotomayor's ruling in the Center for Reproductive Law, take a look at this statement from the Center for Reproductive Rights, the plaintiff in the case. While they encourage the Senate to question Sotomayor on her commitment to women's rights, including abortion, they also point out that, in writing the decision, Sotomayor deferred to legal precedent. That's not the same as deferring to the executive (I agree with Josh that courts have been way too willing to do that of late), and while I might prefer judges who toss out precedent on issues like the global gag rule, I suspect Roe v. Wade and other progressive cases may be safer in the hands of a justice who respects what her predecessors decided.
Of course, an appeals court judge is supposed to follow precedent and the Supreme Court is the only federal court that has real authority to overturn itself.
Which is all to say that I wouldn't use the Center for Reproductive Rights ruling to assume Sotomayor opposed abortion rights, though I would use it to assume that she is a careful, precedent-following judge. Maybe too careful, but given what we've had lately, a little respect for precedent would please me.

Josh said...

Nancy: Two issues. a) We don't know that Center for Reproductive Law is what Timmi's talking about, as she did not answer my question or include any links in her comment and footnote. Because i) The case in question had already been mentioned in the blogosphere when Timmi first wrote her post and ii) I have not seen anyone else on the feminist blogs I frequent question Sotomayor's commitment to abortion rights, I'd say we don't know what motivated Timmi's latest statement. But since there's no link, we can assume it's a datum she encountered not on the internet but via the broadcast media. b) My "deference to the executive" claim was based on SCOTUSblog's "the government 'is free to favor the anti-abortion position over the pro-choice position' with public funds," which I took to imply that Sotomayor in her opinion referenced a "freedom" that the executive has, just like its "freedom" to deny FOIA requests. I'm with you, however, on respect for precedent being on balance a good thing: Sotomayor's Ricci decision, among others, shows her to be a very by-the-book jurist ("activist judge," in the ass-backwards rhetoric of the Right); and that's a rare virtue.

Timmi Duchamp said...

Sorry about my lack of specificity. I composed a must-do list on the plane coming home from WisCon & have been on the run ever since. (It'll be a miracle if I get through it before I have to leave for Sycamore Hill.)

& yes, Josh, I was actually referring to her ruling on the Center for Reproductive Law suit. Haven't had much time to do a reasonable amount of reading, but it does seem that her ruling on that may not have had anything to do with her take on Roe. Given my harried state generally, I probably shouldn't have posted anything on the nomination at all.

Nancy Jane Moore said...

I'm glad you did post, Timmi, because it made me think about this a little more. I assumed Timmi was referring to the Center for Reproductive Rights ruling because it's the only thing I've seen that raises the question of her ideas on the subject. I haven't read the opinion -- it was all I could do when I got back from WisCon to read legal stuff I had to read for my day job -- so I'm not sure if the deference to the executive language Josh quotes is also something that comes from Second Circuit precedent, or represents more of her own view. I'll try to do a bit more reading on the subject.

Respect for precedent is an important quality in any judge or justice. However, it shouldn't be blind respect; tossing out bad precedent is one way we change law. And supreme courts -- both the US and the state ones -- are the place where such changes are supposed to be made. (See the recent unanimous decision of the Iowa Supreme Court on same sex marriage -- yes, it follows precedent, but not in a way that any casual observer would expect.) But of late, most of those refusing to follow precedent are activists on the right who want to toss the decisions that expanded our rights. On the other hand, a lot of the precedent in place -- especially on issues like respect for the executive -- has been built up by conservative judges. So it's a tricky area.

Kurt said...

Thanks to Timmi for linking to Glen Greenwald’s article on Alito's "empathy" for poor immigrants, conditioned by his own experience as the son of immigrants who had suffered discrimination and abuse. (God forbid that his experience should affect his disembodied, axiomatic, purely Cartesian-rationalist judgments, though - we wouldn't want that, would we?) Rachel Maddow recently referred to that Salon article in a withering "three-strikes-you're-out" critique of the continuing right-wing assault on what they're cutely calling the "Obaminee" - continuing, that is, from before there even WAS a nominee. Recall that "empathy" was the primary charge that was being leveled, a priori, against ANY prospective nominee. (Not to mention empathy that is non-trivially grounded in one's own particular socio-historical experience! Too bad they didn't look at the Alito confirmation hearing transcripts first...)

Thanks also to everyone for the clarifications on Sotomayor's positions touching on reproductive rights. I find particularly interesting and insightful Nancy's discussion of the significance of precedent. Sorry to invoke Rachel M. again, but she did a nice job on this, too. (Did anyone see that? It must have been Friday's show.) She showed and then commented on a widely circulated clip in which Sotomayor admits the dirty secret that judges actually do in some sense make law from the bench. I'm no legal scholar. But let’s think about the Anglo-Saxon "common law" legal tradition to which we are heir (as opposed to the statutory Roman-law sort of set-up that the "strict-constructionists" probably wish we had). The precedents to which judges must appeal ARE in essence prior judicial decisions – themselves, to be sure, firmly grounded in precedent, but simultaneously taking cognizance of the evolving needs of society and the peculiarities of the particular case.

Now, it seems worthwhile to reflect a bit on the roles of reason and empathy within this sort of a legal system. One might be inclined to construe empathy as a secondary matter, exercising an optional “moderating influence” on reason. On this view, reason without empathy might still yield a solid judicial decision, though empathy without reason could not. But it would seem to me that a common-law tradition positively REQUIRES that empathy work constantly and intelligently in tandem with abstract reason. In other words: the very idea of applying EITHER in the absence of the other is fundamentally at odds with the nature of legal reasoning – at least in a system which, like this one, is by its nature designed to evolve in tandem with concrete, situationally embodied socio-historical experience. (Or am I missing something?)

Anyway, Maddow dug up a clip of (I think) Justice Scalia making essentially the same point as Sotomayor on the role of the bench in the continually evolving formulation of the law within our legal tradition. So much for the “judicial activist” charge, too. (I forget what strike three was – did anyone else see the show?)

Anonymous said...

Based on the comments here, I went to go read the Center for Repro Law case. I wouldn't judge Sotomayor based on that case.

I read it (between the lines) as the opinion of someone who was stuck with a case where the viable issues (standing, procedural stuff) had already been mostly decided by a previous court, and much more "on point" than your usual case is, who was trying to bend over to show she took the issues seriously but her hands were tied. And plaintiff as an advocacy group is tough to go out on a limb for, if it was even possible in that situation - I couldn't tell from the opinion.

But I'm pretty biased in a more 'conservative' direction on these issues- I'm a lawyer, and have been working for a neutral court-appointed party overseeing a federal settlement. I went to law school with leftist idealism, but after the era of big impact litigation (and most funding for those jobs) was gone and well into being reversed.

I'm admittedly jaded - I'd be happy to see decent jurists without a heavy rightwing agenda appointed to the S Ct., because that alone would be such a sea change... with expansion of its diversity a huge plus (and I can't take that for granted, having watched my profession's struggles for diversity.)

A judge who hadn't gone to one of the rightwing Article III judge bootcamps would be a real start, to my mind, and to have not been a Federalist Society member... Wow.

That career path is so limited and so directed, and the political reality has been so heinous for so long... And the point is to make it to the top, by the time you've gotten that far, not to blow that chance by making waves. I have trouble believing any viable nominee is gonna look like the 'perfect' progressive judicial candidate, at this juncture.

-Carrie D.