Sotomayor the Subjectivist

In all human probability, by the end of the summer Judge Sonia Sotomayor of Second Circuit Court of Appeals will take the seat of Justice David Souter on the United States Supreme Court. On the grossest level, we have one liberal judge replacing another, and so the change is unlikely to affect the outcome of cases in any significant way.

Furthermore, Sotomayor undoubtedly has the kind of qualifications that nominees to the Supreme Court are generally expected to have—excellent legal education at the Yale Law School, experience as a prosecutor and in private practice at a fancy law firm, tenure as a district court judge, and experience as an appellate judge on an important circuit court. Although on the left wing of the ideological spectrum and not a star of the federal judiciary (Souter was no star either, incidentally), Sotomayor is without a doubt a competent jurist and up to the task of being an Associate Justice of the United States Supreme Court. Add in that, as everyone knows by now, she’s a Latina with a compelling personal story, and she was a natural pick for President Obama.

So what might it be useful to say about the Sotomayor nomination? One answer, I think, is that the nomination creates a teaching moment about different judicial philosophies, different understandings about the role of judges in a democratic society. The point needs making because, on this issue of judicial philosophy, liberals and conservatives tend to explain their respective positions using the same words with systematically different meanings.

Consider Judge Sotomayor’s Judge Mario G. Olmos Memorial Lecture on “A Latina Judge’s Voice” delivered at the University of California at Berkeley’s law school in 2001. Judge Sotomayor begins by saying 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.” So far, so good. The picture of judging we seem to have here is that judging is an activity with objective answers—answers that are the same for everyone—even if individual human beings, with their prejudices and other limitations, often fail to reach objectively correct answers in particular cases. If this is the view, then it’s perfectly sensible to want judges with a diversity of backgrounds and life experiences: What one judge may tend to overlook, another may have in clear focus, and so the latter may help the former reach the correct the answer. This is no deeper a point than saying that two heads are better than one.

Judge Sotomayer also says that she worries “whether achieving that goal [of transcending personal sympathies and prejudices] is possible in all or even most cases”—and this too seems all to the good. People with lots of power and a constitutional right to keep their jobs would do well, I think, to examine their motives carefully and try to keep a close eye on whether they are allowing extrinsic factors to affect their decisions.

If Judge Sotomayor had left the matter at that, she would sound utterly conventional—even conservative. In fact, however, Judge Sotomayor’s view is quite different from what the passages above naturally suggest. For, she continues, “I wonder whether by ignoring our differences as women or men of color we do a disservice both to law and society.” That should certainly bring you up short. If “judges must transcend their personal sympathies and prejudices,” how can it be a disservice to the law when judges “ignor[e] [their] differences as women or men of color”? Didn’t Judge Sotomayor just say that that was exactly what judges should do? But maybe all she meant was that, when one judge has experience or learning that others lack, whether because of his or her race or gender or whatever else, that judge should make that experience or learning available to other judges who lack it in order that they might all best reach the correct answer?

In fact, Judge Sotomayor meant something much more radical. “Because,” she writes, “I accept the proposition that . . . to judge is an exercise of power and because . . . there is no objective stance but only a series of perspectives—no neutrality, no escape from choice in judging, I further accept that our experiences as women and people of color affect our decisions” (omitting internal quotation marks). In fact, “The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” Say what? Let’s unpack that a bit.

First, contrary to what Judge Sotomayor’s earlier words may have suggested, she in fact believes that there are no objectively correct answers in (at least many) law cases (“there is no objective stance”). Second, since impartiality entails excluding irrelevant factors that would divert one from the objectively correct answer, impartiality presupposes objectively correct answers; hence, in the absence of objectively correct answers, impartiality loses its meaning. There is “no neutrality.” What becomes of the “aspiration to impartiality”? It is no longer an aspiration in the usual sense of the word—something good and possible, though perhaps difficult, to achieve. The “aspiration to impartiality” becomes an impossible dream. In other words, it would be nice, in some vague sense or other, if judges could be impartial, but this is, in fact, literally impossible—not because human beings are too imperfect to achieve impartiality, but because there are no objective answers to be impartial about in the first place.

So we have two quite different understandings of judging. In the first, the one Judge Sotomayor may have appeared to endorse, there are objectively correct answers in legal cases, even though it can often be difficult for judges to overcome their preferences and prejudices to find them. In the other, the view Judge Sotomayor really holds, there are no objectively correct answers in legal cases, and”although it might be nice if it were somehow otherwise”in fact, different people will, for various reasons, think different things are right and good (none of them being objectively correct). Inevitably, therefore, people’s views on questions of law will be determined by something other than the objective truth, for there is no objective truth on such questions. As Judge Sotomayor puts it, “Whether born from experience or inherent physiological or cultural differences, . . . our gender and national origins may and will make a difference in our judging.” Indeed, on her view it would be impossible that it be otherwise—not because we’re not good enough to overcome our backgrounds, but because there’s no objective truth at issue for us to reach.

She continues, “Justice O’Connor has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases . . . . I am not so sure I agree with the statement.” In fact, given what she had said above, Judge Sotomayor cannot possibly agree with the statement. More consistently, she concludes, “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 man who hasn’t lived that life.” Of course, at this point, since “there is no objective stance but only a series of perspectives,” Judge Sotomayor has no basis for saying that the wise Latina’s decisions are actually better than the white man’s; all she is entitled to say is that she thinks that they’re better, acknowledging that other people, with their own “experience or inherent physiological or cultural differences,” will reach different conclusions.

Now, as to which philosophy of judging is the correct one, I have very definite views (I think the subjectivist view of Judge Sotomayor is ultimately untenable as a matter of philosophy), but who’s right and who’s wrong on this question is not the important issue here. We’re certainly not going to settle that. What’s important about the Sotomayor nomination, rather, is that it presents an excellent opportunity for an intelligent and accomplished jurist who shares the subjectivist view to explain that philosophy of judging to the American people.

I’m willing to bet, however, that that never happens. When she comes before the Senate, I wager, Judge Sotomayor will say something quite different from what she said at Berkeley, something that sounds much more like the conventional, conservative judicial philosophy that posits objective answers and a duty to search for them impartially. Why? Because Sonia Sotomayor knows, as most people know, that what flies when addressing a bunch of law professors and law students at Berkeley won’t fly with the American people generally. And that tells you all you really need to know about the difference between the two philosophies of judging.

Robert T. Miller is associate professor at the Villanova University School of Law.