While I usually write about regional issues here, today’s national issues are so crucially important that I’ll devote substantial space to the views of Judge Sonia Sotomayor, nominated for the Supreme Court.
First recall what President Obama offered in 2007 as a guideline for his nominee: “We need somebody who’s got the heart to recognize — the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old. And that’s the criteria by which I’m going to be selecting my judges.”
Richard Epstein replies:
Rather than targeting his favorite groups, Obama should follow the most time-honored image of justice: the blind goddess, Iustitia, carrying the scales of justice.
Iustitia is not blind to the general principles of human nature. Rather her conception of blindness follows Aristotle’s articulation of corrective justice in his Nicomachean ethics. In looking at a dispute between an injurer and an injured party, or between a creditor and debtor, the judge ignores personal features of the litigant that bear no relationship to the merits of the case.
In other words, it shouldn’t matter whether you’re rich or poor, black or white, or whatever: if you commit a crime, you deserve the same punishment as everybody else. If you are involved in a civil dispute, you deserve to have your rights protected. A judge’s job is not to “empathize” with one party over the other, but to achieve justice, regardless of the individual characteristics of the parties.
‘Gender and National Origins’
Before delving into some of Sotomayor’s judicial opinions, we might look in more detail at her 2001 Berkeley speech, as reproduced by the New York Times.
Sotomayor delivered the Judge Mario G. Olmos lecture; she praised Olmos for “promoting equality and justice for all people.” (I don’t know what views Olmos actually endorsed.) Notice the “and:” equality and justice are two distinct goals. Sotomayor is not advocating equality under the law, the sort of impartiality that Iustitia represents. She is advocating equality as a goal above and beyond justice. But equality in the egalitarian sense and justice are contradictory goals.
One who has not earned wealth does not deserve a portion of it equal to the one who has earned it. The criminal is not equal in stature to his victim, nor does he deserve equal treatment. A person who strives to improve his character is not the moral equal of one who does not.
For a frightening look at what egalitarianism means in practice, see the preview for the film 2081, or read the short story by Kurt Vonnegut on which it is based. (My only complaint with the story is that it emphasizes physical differences, when the important issue is the greatness of mind and character that people can achieve by their own effort.) Or read Aristophanes’s classic, “Assembly of Women.”
Sotomayor is skeptical that “we can and must function and live in a race and color-blind way.”
On a positive note, she says her parents taught her “to love America and value its lesson that great things could be achieved if one works hard for it.” This signals that Sotomayor is not dedicated to strict egalitarianism, yet a pragmatic, partial egalitarianism remains troublesome.
Sotomayor devotes considerable space to outlining the advancement of women and minorities in the judicial system. Her entire analysis focuses on numbers, not attributes. She urges “Latino and Latina organizations and community groups throughout the country… to continue their efforts of promoting women and men of all colors in their pursuit for equality in the judicial system.” In other words, racial equality — i.e., quotas — is for her a primary goal, not merely a coincidental consequence of promoting the most qualified people for the positions.
Sotomayor distinguishes her views from those of Judge Miriam Goldman Cedarbaum, which she summarizes:
Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based. … While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.
Sotomayor views this as a quaint and unrealistic ideal: “Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.”
To rephrase, Sotomayor thinks it is usually not possible for judges to fully “transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.”
She continues, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
Sotomayor is confusing physical distinctions with equality under the law. Equality before the law does not imply that we ignore all differences between different people. Good judges need not give equal consideration to both males and females as potential romantic partners, for instance. Yet, when it comes to applying the law, it is precisely the setting aside of legally irrelevant differences that is the key to justice.
Sotomayor then considers two possible causes of racially “different perspectives.” The first is a difference in “cultural experiences.” No problem there. But the second is the “postulate” that “we have basic differences in logic and reasoning.” In other words, Sotomayor seriously entertains the notion that logic is different for people of different skin colors.
And here Sotomayor entertains a blatantly racist doctrine. The notion that logic — and therefore the truth — is different depending on the color of your skin constitutes a vicious doctrine at odds with the view set out by the Declaration of Independence and echoed by Martin Luther King that all people are created equal in their essential humanity, which is their capacity to use their reasoning mind to discover the facts of reality.
Some people are better at reasoning than others, generally because they have worked harder at it, but reason is the most essentially human capacity that we all share, and in its fundamental functioning it is the same for everybody. It is in this sense that we are all created equal, and this is the foundation of our equality under the law (rather than in abilities or in wealth).
If different people have a different logic and a different truth, then universal standards of justice are impossible. Justice becomes merely the system that one group sets up and enforces over other groups, which have inherently different conceptions of justice. This explains Sotomayor’s obsession with judicial racial quotas; the judicial system cannot be fair to different racial groups unless those racial groups share the authority.
Of course, often a lack of representation by some group in the legal system stems from entrenched bigotry against that group, and then the judicial makeup reflects that injustice. But the solution to this problem is to end the entrenched bigotry and promote people according to their individual merits in order to enforce the universal standards of justice. Sotomayor’s approach promises only to replace one racist approach with another.
Sotomayor’s views quickly collapse to personal subjectivism. If different races have different logics and different truths, then perhaps individuals within those groups also have different truths. Sotomayor continues that there is “not a feminist approach but many,” though all of them “are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation” and will never be fully “solidified.” Presumably the same analysis applies to race-based “logic.”
Sotomayor agrees with Professor Martha Minnow of Harvard, who said “there is no objective stance but only a series of perspectives.”
Sotomayor indeed praises the use of the judicial system to achieve egalitarian outcomes (with no noted consideration of individual rights), pointing out that “Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.” In other words, employers and employees must not be left free to agree to terms of labor; employers have no right to control their resources; the federal government must step in and decide what constitutes “equal” work, pay, and conditions.
Not only do different people have different “logics,” by Sotomayor’s account, they may have different inborn psychologies, too, leading to her most controversial lines:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. … 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.
As has been noted, the following variation of Sotomayor’s line would be roundly and correctly condemned as racist: “A wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.” Yet for some reason we are expected to give Sotomayor a pass, and indeed place her on the highest court in the land to decide fundamental law.
Sotomayor does grant that “others of different experiences or backgrounds are [capable] of understanding the values and needs of people from a different group.” The notion that varied experience in the courts is a good thing is defensible and not racist. The problem is that Sotomayor blends this view with the racist view that different people have inborn and inherently different logics (and therefore truths), as well as psychological dispositions. It is true that our experiences help make us who we are. Yet people of all experiences can come to understand the facts of a particular case and evaluate those facts by universal standards of justice. Thus, what truly matters is not diversity of experience, but the self-generated qualifications of the individuals under consideration.
Sotomayor does not fully commit herself to the racist, relativist view that she sometimes adopts. Instead, she mixes this view with the suppositions of universal justice. She promises “constant and complete vigilance in checking my assumptions, presumptions and perspectives.”
It is precisely this mixing of incompatible views that poses a problem. If Sotomayor consistently upheld the racist strains of her ideas, she would be dismissed by everyone and never would have progressed in the judicial system. The problem is that, by allowing herself room to judge based on race and gender, rather than on the universal standards of justice, she threatens to sometimes rewrite the law as she sees fit, based on her own prejudices.
Sotomayor recognizes that “there is always a danger embedded in relative morality.” We should take her seriously on this point and hesitate to send an avowed moral relativist to the Supreme Court.
Didden v. Village of Port Chester
How does Sotomayor’s judicial relativism play out in practice? Here I’ll mention three cases reviewed by others.
Richard Epstein takes issue with Sotomayor’s reasoning in Didden v. Village of Port Chester of 2006:
Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser’s] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.” …
Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo’s home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco.
United States v. Toner
Dave Kopel takes a look at Sotomayor’s language in a Second Amendment case. The details are more complex than I want to review here (see Kopel’s complete write-up), but the upshot is that Sotomayor held that “the right to possess a gun is clearly not a fundamental right.”
Kopel argues that this claim is without foundation, summarizing, “Judges Sotomayor, Pooler, and Katzman simply presumed–with no legal reasoning–that the right to arms is not a fundamental right.”
Thomas Sowell summarizes a third case:
Looked at in the context of Judge Sotomayor’s voting to dismiss the appeal of white firefighters who were denied the promotions they had earned by passing an exam, because not enough minorities passed that exam to create “diversity,” her words in Berkeley seem to match her actions on the judicial bench in the 2nd Circuit Court of Appeals all too well.
As is obvious from her own words and from her judicial decisions, Judge Sotomayor uses her race-based relativism as a pretext to promote her leftist agenda in court. We should expect her to continue that tactic if she rises to the Supreme Court.
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