Sotomayor’s faux racism and power asymmetries

Racism is a seriously malignant and often unacknowledged force in a society.  One might worry that a phrase like “faux racism” (i.e., not real racism) could diminish our sense of how bad racism is.  Still, there are times when we need to get a grip on the fact that a judgement ostensibly based on race is not really a matter of racism.

Racism is also extremely difficult to discuss; the following might seem obvious and even simple minded.  Or it might seem objectionable or in need of qualifications.  Let us know!

During the hearing yesterday, Senator Graham, in his southern accent, asked Sotomayor if she realized how much trouble he would be in if he  said he hoped that a wise white man would reach a better conclusion than a Latina judge.  I think the session closed on his question, and I don’t know what “don’t rock the boat” answer Sotomayor did or would give.  But the remark invites us to look at the difference between verbally analogous remarks.

There seem to me  to be two directions at  least we could take.  One is to bring in standpoint theory directly, as Jender did previously.  Originally, that theory’s proponents argued that oppressed minority positions can make truths perceivable that can’t really be discerned  by others.  We might now see it as saying that people outside a gender, race, class or national group may have insights, particularly about themselves, that the insiders are unlikely to know.  In this latter version, it seems pretty obviously true, and we’ve taken note of that very recently, with the help of Ruth Bader Ginsburg.

A second, related approach is to look more directly at the power asymmetries between, in this case, Latinas and white men in the relevant society, the United States.  White men, not Latinas, dominate in leadership positions in academia, industry, the law, medicine and the arts.  Universities generally teach the history of white men, their theories, the science they have developed and the arts they produce.

In this context, the statement that a wise white man would do better than a comparably placed Latina (e.g., both are judges or artists or whatever) is to say that there is no need to open up the places of privilege that white men so thoroughly dominate.  That position in effect underwrites severe injustices.

There is no such implication on Sotomayor’s part.   There surely are many arenas in which at least some white men can and do experience failures in justice, but the privileging of learned opinion is in general not one of them.  So what is her comment telling us? 

A Latina judge of Sotomayor’s standing will be very well versed in white culture; after all, she went to Princeton and Yale.  But white men are not well versed in the culture of Latinas.  Consequently, when a decision is made where a Latina’s culture has relevance, she may very well be in a position to make a better decision, particularly if she is wise.  She will be likely to have relevant experience that white men often don’t even know they are missing.   We get this conclusion from the obviously true version of standpoint theory.

You might think there’s still some overstatement – hyperbole – in Sotomayor comments about a wise Latina.  But it is in the cause of getting a place at the table and not a claim that a whole class of people don’t need to be  heard.  The context, with the asymmetries of power, make this clear.

Sotomayor and the media

OK, I know it is not a surprise to say that the media is employing sexist and racist stereotypes in its portrayal of Sotomayor and that those stereotypes place her in an infamous catch-22–  How dare she be smart and aggressive?  Wait, she’s a lawyer and a judge.

But,  if anyone is doing research or teaching about this topic,  here is site that does an excellent job documenting and linking to a long list of examples in the US media, and connecting them to legal scholarship about racism and sexism.

David Brooks has it almost right: Sotomayor again

David Brooks, who frequently appears as a representative of conservative views,  picks up on the idea that a judge needs empathy.  His argument is politically important and it is also balanced.  One conclusion he reaches about the need for a judge’s self-knowledge of her decision making has an almost tragic air about it, since it appears that Sotomayor’s articulations of her self-knowledge are being used against her.  (For the articulation, see this post and the discussions.)

Nonetheless, there’s a problem with the core of what he says.  Let’s look at it.

He starts with an important point:

The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

While the falsehood is useful generally, there’s a danger that it could be employed to derail Obama’s current nominee, Sonia Sotomayor.  So it’s important to see how it is false.  Here’s Brooks’ account:

It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.

People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

Unfortunately, as Brooks should know, given the background reading his recent articles indicate, this isn’t right.  One can spend hours grading logic tests; while emotions may be involved in one’s struggle to stay focused – or even just to stay at one’s desk – you don’t need emotions to decide for you what is and what is not permitted according to a rule of logic.  As Damasio in his Descartes Error points out, someone who is incapable of living a wise practical life because his emotions and reason do not work together can nonetheless do all sorts of calculating correctly.  It is creative and/or practical decisions that are, then, according to Damasio and other researchers, in need of the evaluing guide of the emotions. 

Why, then, is the law more like creative  or practical or moral decision making – at least when we understand the latter according to theorists that allow room for emotion – than logic?  There are no doubt a number of reasons for this; among other things, it is hard to halt the decision process if one doesn’t have a sense of a good outcome.   This may be part of what Brooks has in mind when he says:

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Another was explored explicitly in a post below:  All sorts of human concepts don’t have the precise definitions that allow a simple and dispassionate “yes or no” test for their application.  The comments on that post are well on their way to establishing we can’t even easily define “bachelor.”   Important legal terms like “cruel and unusual” have much  less chance of such definitions.

Brooks also maintains:

Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.

Lastly, Brooks emphasizes how important it is to be aware of the conflicting demands on one’s decisions and of the importance of knowing self-restraint.  These last two points could well make one quite sad, for we now have a Chief Justice who officially regards  himself as a totally disengaged observer, but whose decisions almost entirely side with powerful vested interests.  And we have a wonderful nominee whom many would like to derail in part because of her awareness that a judge cannot really be so disengaged.


We’ve had a series of posts on Sotomayor that readers might want to be aware of.

Sotomayor and Standpoint Theory

Here’s a quote from Sonia Sotomayor:

“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.”

The right-wing is of course up in arms, accusing her of racism. Me, I was busy thinking “WTF? She’s a standpoint theorist? Really? That’s fascinating!”

Further research into the context of her remarks shoots down the “she’s a racist” theory, but leaves intact the possibility that she’s a standpoint theorist, at least of the sort who holds that members of certain groups may have special insights into particular issues. (Though you don’t have to be a standpoint theorist to think that.)

Those words came as part of a discussion about the importance of judicial diversity in determining race and sex discrimination cases, but they have been widely reproduced out of context.