I find it interesting that the main Republican complaint against Supreme Court nominee Sonia Sotomayor is that she seems inclined to use subjective standards in reaching judicial decisions. Much ire seems to surround her comment that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life”.
But what is so wrong with this comment in the first place? It is preposterous to imagine that a judge’s background and life experiences have no influence on his or her decisions. Do we really believe Scalia and Thomas are mechanically applying the rule book and not bringing their own beliefs or ideological preconceptions to the table? Hardly. But when the pseudo-conservatives hammer away at “activist” judges, what they really do not like is activism in the wrong direction. They are perfectly content with activism when it suits them. As Sheldon Whitehouse noted, “For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights”. And they were cheered for doing by many who rail against “judicial activism”.
There is of course nothing wrong with this. As one who holds the natural law as superior and antecedent to the positive law, I would fault all who appeal to positivist absolutism, to a false sense of objectivity. But even those who veer in the positivist direction must be aware that value judgement plays an essential role. But what kind of judgment? All tasked with care of the common good (including judges) need empathy, solidarity with the least among us. It is certainly the case that a Latina woman from an underprivileged background will see the world through a different lens than a privileged white male. Of course, subjectivity depends very much on the individual (we see little empathy for the little man from Clarence Thomas), but it is surely possibly to make some general arguments.
Consider John Roberts. Legal expert Jeffrey Toobin made a very telling comment. He noted that “”in every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff”. Now, we can pretend that he was mechanically applying the law in each case, but that is not very credible. Do judges get a pass from the requirements of social justice, solidarity, the preferential option for the poor? Nothing in Catholic social teaching suggests so.
I have no problem with criticising a judge or a nominee for his or her approach to abortion, or to any other aspect of the moral law, which includes social justice — as the recent encyclical points out, there is no artificial divide in Catholic social teaching. Just don’t pretend to be doing so on the basis of some contrived positivist objectivism.
Finally, there are some who claim that Sotomayor’s comment is somehow racist. Again, this is not credible. As Eugene Robinson put it, this is based on the false assumption that “whiteness and maleness are not themselves facets of a distinct identity”. In other words, “being white and male is seen instead as a neutral condition, the natural order of things…any “identity” …has to be judged against this supposedly “objective” standard”. This is why nobody batted an eye when Samuel Alito appealed to his background as the son of Italian immigrants as affecting his rulings, and yet are inclined to over-react when Sotomayor takes this in another direction entirely.
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