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27.5.09

Objectivist vs relativist arguments for judicial diversity

Now that President Obama has actually nominated Sonia Sotomayor to the Supreme Court, I'm reminded that I meant to comment on this David Schraub post riffing on Sotomayor's thoughts on the influence of experience on judging, and the importance of a diverse judiciary:

Courts are constantly forced to ask questions about the nature of justice and fairness, to make evaluative decisions, in short, to judge. The entirely body of common law is essentially one long game of "what makes sense?" Constitutional law is no different: What is "cruel" punishment? What process is "due"? What is the technical definition of "equal protection"?

These are not questions that come with objective answers; indeed, I would question quite strongly whether they are even candidates for objective truth. To be sure, we often claim they are -- we take the position held by who currently hold the crown gavel and proclaim it to be Divine Revelation Black Letter Law. But this claim to impartiality is a chimera -- it doesn't correspond to anything real. A rule that works from the perspective of one position in the social order or one bundle of value commitments may seem bizarre or oppressive to another person differently situated or with a different set of commitments. We aren't equipped with the tools to resolve these disputes by brute intellectual force: our choices are between simply entrenching the dominant view and calling it True, or honestly engaging with and grappling with alternatives, with an eye towards mutual agreement and a commitment to mutual respect. From within this paradigm, it is beyond obvious that a multiplicity of perspectives is of benefit to the judicial branch. This has been recognized by theorists left (Jack Balkin, Cass Sunstein) and right (Richard Posner).


I think Schraub/Sotomayor get the right conclusion, that the judiciary should have members from a great diversity of backgrounds. And I think they start from the right premise -- that people with different experience will see things differently, e.g. what kind of conduct is "reasonable" in a given context. But I would get from the former to the latter by a route that is in some ways the opposite to the route Schraub takes.

Schraub takes a relativist approach. Different people see things differently, and no perspective is necessarily more correct than any other. Therefore, all we can do is avoid privileging any one perspective by putting them all in the mix.

I would take an objectivist approach. The different perspectives aren't simply equally valid alternate takes. They reveal important information about situations. A Latina judge doesn't just say "X doesn't seem reasonable to me in situation Y" whereas a white male judge says the opposite. The Latina judge says "I can see that X isn't reasonable in situation Y because I can appreciate the importance of factor Z," whereas the white male judge overlooks or under-weights the importance of Z, because Z has never been a problem in his life. And in theory the reverse may happen, with the Latina judge not appreciating certain aspects of a situation that the white male overlooks (though the cultural dominance and normalization of white maleness in our society makes the latter situation rarer than the former). If the court can't appreciate how awful it is for a girl to have to take off her bra in front of school officials, its decision isn't just privileging the male perspective, it's failing to fully consider all the factors at work and thus getting the decision wrong. A diverse judiciary thus gets not just decisions that are fairer between different outlooks, but better decisions. The process is still highly fallible, but that doesn't mean there's no right answer to legal questions.

It's not totally clear to me from the linked excerpts how closely Sotomayor would endorse the middle part of Schraub's argument. She refers to wrestling with the dangers of "relative morality," and that "there can never be a universal definition of wise," which sound Schraubian. But she also says that "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life," which strikes me as a statement of some form of standpoint epistemology. Standpoint epistemology is an objectivist position, holding that people from certain social positions (specifically the oppressed) understand things better and therefore get the right answers when members of the dominant group accept convenient falsehoods -- more consistent with my perspective. (I don't have space here to explicate the various versions of standpoint epistemology or my particular take on it.)

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