As the Sotomayor hearings proceed, I thought I would turn again to the issues raised by the Judge's oft-cited "wise Latina" speech and similar remarks suggesting that there may be a connection between judicial decision making and the judge's ethnicity and background.
One common approach is to wonder whether this is "racist." Shortly after the nomination was announced, I did a segment with Joy Cardin on Wisconsin Republican Radio. She seemed perplexed that I refused to assume the "racism" position, playing a clip of Tom Tancredo making that charge as if it to tell me that I wasn't a team player.
But I think it is unfair to say that she was making a claim for some form of racial superiority.
Another common approach is to say that she was simply suggesting that judges need to be aware of the biases that arise from their backgrounds so that they can check them and that a panel consisting of persons with different backgrounds will be more likely to, collectively, identify and deal with these biases.
I think that Judge Sotomayor almost certainly believes this and I agree that there is a great deal of truth in it, although I may be less likely to believe that gender or ethnicity implies common histories and assumptions.
The reason that the debate has not - and should not - end with the second approach is that it is - literally - not what she said, both in the La Raza article and on other occasions.
Although it seems reasonable to explore these statements during the hearings, I am not confident that it will be done by the Senators in an incisive way or that Judge Sotomayor will depart from her talking points. What's happened so far this morning confirms that.
I would suggest a third meaning - or group of meanings. Judge Sotomayor may have been saying something like a juridical version of the concept of the epistemological privilege of the poor advanced by liberation theologians. The idea is that the oppressed have a special insight into the nature of and reasons for their oppression. John Yoder, for example, writes that if you see things from below, you will see them as God does.
Of course, Judge Sotomayor was making no theological claim, but she may have been saying that, given her understanding of the nature of our society, the perspective "from below" may be more accurate.
A "thinner" variation of this view might be something like John Hart Ely's argument for a juridical hermeneutic that concerns itself with protection of those who may be less able to protect themselves in the political process.
For a variety of reasons, I disagree with both variations on this view, but I am not unsympathetic with its underlying rationale and don't think it's fair to call it racist. Perhaps it is not at all what Judge Sotomayor had in mind. Still, I think that the extent to which a judge believes and is informed by the assumptions that inform it and its implications for judicial decision making is fair game.
Cross posted at Marquette University Faculty Blog
5 comments:
Judge Sotomayor may have been saying something like a juridical version of the concept of the epistemological privilege of the poor advanced by liberation theologians. The idea is that the oppressed have a special insight into the nature of and reasons for their oppression. John Yoder, for example, writes that if you see things from below, you will see them as God does.
This is just a form of standpoint epistemology, and in its modern versions it mostly originates with Marx.
You're right to say it is not racist. It's basically an empirical claim about social and cultural position, which at most tracks race contingently. To put it in illustrative Marxist terms: the servant who lives in the servants' quarters but works in the masters' house is likely to have a greater knowledge of the workings of both contexts than do the masters, whose privilege consists partly in their not having to bother with how the servants live.
People growing up in a subculture, but immersed in the dominant culture by media, may similarly have a greater total knowledge of both cultures/realities/ways of life than will someone who both lives in and is immersed in the dominant culture. To the extent that knowledge and understanding of the world are relevant to being a good judge, it is hardly outrageous, and absolutely not racist, to conjecture that one would thereby have an advantage in making all manner of judgements, inlcuding legal ones.
This rather benign duo of ideas, that knowing more tends to make one a better judge, and that (ceteris paribus) having a wider range of cultural experiences tends to lead to knowing more, is pretty clearly what Sotomayor is advancing. She cites with approval the view that "there is a diversity of opinion because there is both a diversity of experiences and of thought"; and even the quote that has generated so much flapdoodle follows up this approach explicitly: "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." Of course the hacks trying to make hay with this quote see only the racial terms, and not the transparent emphasis on role of knowledge in facilitating good judgement.
What's "that life" that her hypothetical white male hasn't lived? A Latina life? No; she's already gone on at length about how there is no such single thing. It's quite clear that she means a life of experiences that span more than just one aspect of the "salad bowl" of American cultures -- the framework within which the entire speech occurs.
How big a difference the knowledge of culturally diverse experience makes is a factual matter; one may doubt that it makes much difference at all. But it's a reasonable conjecture on its face, and not racist in the least.
When you have to expend 500 words on "epistemology" to erase the plain meaning of the words, then you have not succeeded.
No matter how it's spun (and Sotomayor actually spun it differently than either of you did), it is not only racist, but sexist.
And I'll even concede that she may be correct in her assessment...
Clutch said "To put it in illustrative Marxist terms: the servant who lives in the servants' quarters but works in the masters' house is likely to have a greater knowledge of the workings of both contexts than do the masters..."
To put it in illustrative 'second time as farce' terms, it's Benson.
LOL. Nice observation. Benson and a lot of other class-inflected humor besides.
As an aside, though, I suppose that if I absolutely had to make policy and electoral decisions based on a TV show, Benson would beat the hell out of 24.
Oh -- and Slumdog Millionaire. That's the framework of the whole film.
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