The wagons are beginning to circle around Sonia Sotomayor, and it looks like the weapons, too, have been chosen. Those will be the case Ricci v. DeStefano, currently before the Supreme Court, and Judge Sotomayor's statement about how she hoped a Latino female would be able to come to a wiser judgment than a white male.
Pundits have been all over about it, from left, from right, from speechwriters, and from Court-watchers. What hasn't so much been discussed is the very interesting, and very important issue that her statement raises for our entire political system, and that is: can, and should, judges render objectively impartial verdicts? To say it another way: is it even possible for judges to put their personal beliefs aside when making decisions?
Effectively, Judge Sotomayor says 'no' to those questions. But she then commits the cardinal sin: she says that partiality is a good thing.
Now, many on the left are running in circles and trying to act as though it has all been 'taken out of context'. However, if anything, the most discussed sentence doesn't do the entire message of the speech justice. Her words are a direct response to Sandra Day O'Connor's statement that she believed a wise old woman and a wise old man would reach the same, impartial decision. That, if anything, is a statement that there is an absolute objective standard to be reached and that one with enough wisdom and experience will be able to reach it. The statement certainly doesn't make a subjective claim to the value of that decision (whether it is good or bad), but makes clear that a (one, a single, only one) decision will be reached. Judge Sotomayor's comment says (paraphrasing and editorializing) "No, I'm sorry, but that is not possible and not desirable. There are certain voices that are not heard in your standard of 'objectivity.' A Latina should be able to speak to that, challenging your definition, which will be better for the law." She is saying that subjectivity is a natural part of a judge's role and that it should be celebrated.
That is a major difference form the past. For years, even Democratic appointees have harped on about the limited role of judges in our system and the importance of the rule of law. Chief Justice Roberts is famous (to those who actually pay any attention to confirmation hearings) for his analogy of the Court to an umpire in baseball. The notion of judicial restraint and its fundamental precept of objectivity has always received airtime. Never has a potential justice said that subjectivity ('empathy' is the President's favorite word for it) is desirable. Usually, it is brought up as something that exists and will certainly inform the decisions of judges because we are human. Rarely has it been celebrated.
As the hearings move on, we'll see if this is brought up. It's a bit too philosophical for senators to debate the nature of objectivity, so I'll guess there will just be a lot of grandstanding instead. It would be a good question, though, to raise.
Do you, Judge Sotomayor, believe that there is an objective, impartial decision that exists for each case? Do you believe that it is possible for judges to find that? Do you think it is worthwhile for them to try?