Because of a mistake made by George W. Bush in 2005 the GOP is now forced to accept a Supreme Court nominee with a very questionable record.
For Republicans in the Senate, the Supreme Court nomination of Sonia Sotomayor is a lesson in the law of unintended consequences and another unfortunate legacy of the mistakes of the Bush administration.…
Article comments
26 - Cindy
Clav,
I agree the point I made was not actually stated in the quote. For me, though, it was implied. I think I just understood her, even with that limited quote, based on the similarity in our viewpoints. This is born out by the context of the speech, in which she illuminates further. And, which I may never have read had Baronius not suggested it. I'm so glad he did.
27 - Dave Nalle
Cindy, the fundamental problem here is that some of us don't want a "voice of the marginalized" on the bench. We don't want SC justices advocating for any special interest groups. We want them to treat everyone equally under the law, not apply the law to give some special preference, regardless of the reasons.
Dave
28 - roger nowosielski
Perhaps that's the crux of the matter, Dave. There definitely is the need for a "voice of the marginalized" in order to effect any reform (or we'd always be stuck with the status quo), if only as input to inform the highest law in the land. But that law must be able to reflect and balance all voices.
29 - roger nowosielski
I think the problem is analogous to that of awarding compensation/reparations for sins past. While the idea of reparations makes sense to a point, the question is - for how long must a society do that without sliding into discrimination in reverse?
30 - Cindy
Dave,
Cindy, the fundamental problem here is that some of us don't want a "voice of the marginalized" on the bench.
Then there is only the voice of the dominant. The 'white dominant male' so to speak. But the voice is there. It is unavoidable.
We don't want SC justices advocating for any special interest groups.
They have always been advocating for a special interest group--that of the dominant culture. Look at what I quoted above about there only being a favorable ruling on female gender issue since 1972.
We want them to treat everyone equally under the law, not apply the law to give some special preference, regardless of the reasons.
This is partly fine, we should try to see objectively. But partly it misses the point that people cannot crawl out of their own skin. The very things we will see or not see, depend on our history.
She is very clear and very correct in saying that we bring our own eyes to the matter based on what our history is. It's simply the way it is Dave. To think otherwise is to avoid the problem of reality in favor of pretending something else is possible.
31 - roger nowosielski
"We bring our own eyes to the matter based on what our history."
A good quote. I would like to add that would should try to escape the limits of our particularistic histories in order to be able to think universally - for the humanity at large.
32 - roger nowosielski
"escape the limits"
"transcend the limits" is better.
33 - Baronius
I have to go farther than Dave. It is not just that some of us don't want a voice for the marginalized on the Court; the whole idea is anathema to the traditional understanding of the judiciary.
Analogy time: have you ever noticed actors doing accents? If you're familiar with the way an accent is supposed to sound, you're going to hear a difference. Some actors will underdo an accent; some will oversell it. (There's nothing funnier than an actor overdoing an Irish accent.)
In the same way, a judge strives for neutrality. He may overcorrect and grant latitude to a child molester. He may undercorrect and sentence people too harshly. Any judge is going to try to counter his biases in an effort to attain the goal of following the law. He may fail one way or the other, which would make him a bad judge, but he tries for the proper goal. The system works by approximating neutrality.
Cindy, you're calling for an abandonment of the goal of neutrality. I can't see a reason why "free range" judges would necessarily favor the disadvantaged.
34 - Clavos
If Cindy is correct that SCOTUS Justices have always been biased for the "dominant [majority]," and this was bad, then the focus should be to eliminate bias, not exacerbate it by choosing still more biased judges.
Two wrongs don't make a right.
35 - roger nowosielski
Except that justice and neutrality are not necessarily and always the same, Baronius. And as I said, we do have a mechanism in SCOTUS for dissenting opinions - sometimes the most astute of the bunch.
Plus, Cindy may balk at what you esteem as "the traditional understanding of the judiciary."
36 - roger nowosielski
I don't think Cindy can claim that outright - especially in light of the many monumental decisions which set the new tone - Brown vs. Board of Education, Roe vs Wade, etc.
37 - Baronius
Roger, neutrality and justice are not the same thing. But the creators of the law are tasked with making the law approximate justice, and the judges are supposed to apply the law neutrally. That's the traditional understanding of the judiciary.
38 - Cindy
I would like to add that would should try to transcend the limits of our particularistic histories in order to be able to think universally - for the humanity at large.
Ah Roger. There it is in one sentence--the whole point of anarchism.
39 - roger nowosielski
Cindy,
Then we don't have any disagreement except for one (though you wouldn't regard it as) minor point. First and foremost, it's a goal we as individuals should set for ourselves; and only then, keep your fingers crossed, can we hope to change society.
40 - roger nowosielski
Baronius, #37;
Point well taken in that "neutrality" and or "impartiality" figure in and are important elements of the justice concept. But I wouldn't presume to effect the reduction. Plato's and Socratic dialogues certainly go beyond. Plato's "Laws" alone is a 300-some page book, and one can devote their entire lifetime to studying it.
41 - Baronius
Well, sure, no one would presume to effect the reduction. Such reduction-effect-presuming would be...ok, I have no idea what that means.
42 - roger nowosielski
One example of reduction: justice = neutrality.
43 - Cindy
Bar, Clav,
I think you are both missing my point.
First of all, Sotomayor is striving for neutrality. It's clear from her speech. She both states she is and also says that the history of judges who hail from marginalized groups won't be reflected in any particular decision. Just that we should expect over time that these perspectives will have an effect. She is speaking as an answer to some of her predecessors who said that differences in gender, etc. will not and should not have an effect.
The point is. To strive for neutrality is a good thing. She says as much. What she is saying is that the perspective of the marginalized will ALSO be in play, along with the other perspectives and that will have an effect, because we cannot remove the history from the white males, we must add the history of all the others. All of them "ideally"* trying to achieve that neutral judgment.
*I say ideally because I truly believe they mostly don't but just either convince themselves they do or lie to the rest of us about it.
44 - roger nowosielski
Just as a good novelist, one should try to accommodate and consider every possible perspective. That's what universal consciousness is about.
45 - Cindy
Think of it this way. You've heard Dan(Miller) discuss the issue of torture and accountability from a legal perspective. There are many other lawyers who will agree with Dan. There are just as many who will not and will see other things.
All of them see things or fail to see things and then they interpret what they see or fail to weight in what they don't according to their own history.
Otherwise either the opinions would all be the same or they are all not even trying to be neutral. Does this make any sense?
46 - roger nowosielski
Good point: "we cannot remove the history from the white males." Consequently, we can only hope to expand their myopic and particularistic vision by making them realize there are other histories as well - all comprising as it were the inglorious history of humankind.
47 - roger nowosielski
Not to mention, they have vested interest in propagating the views they're comfortable with. Hence the natural resistance to considering alternative/diverging viewpoints. Although in the "torture" case, there was a violation of the professional ethic of making no mention of the diverging view points - one solid reason, IMO, why Bush's legal advisors are culpable at least on that one score.
48 - Cindy
Roger,
Regarding what you say in #36, I think I addressed that in comment #25. In my view and apparently in Sotomayor's--people can and do adopt the viewpoint of the 'other'. But it takes a great deal of intentional and dedicated effort. (Or the luck of accident.--my statement, not hers) It is not going to happen if they either don't care to or are incapable of it.
Brown v. Board of Ed. is discussed in Sotomayor's speech, in fact, its a case that is reflected where she gives credit to the 9 judges in #25.
49 - roger nowosielski
Not to mention, we're all rational animals - operating by the simple means-to-an-end schema, and the idea of purpose is overriding most of the times. Which is to say, we are given to manipulating facts and opinions, are very selective in what we pick and choose, so long as it suits our purposes. The purpose defines thought and makes thought into an instrument for attaining the purpose.
50 - roger nowosielski
"But it takes a great deal of intentional and dedicated effort."
Right. It rarely happens of its own accord, by some new and fresh spirit of benevolence or goodness on the part of anyone's heart. It's always the case that such advances have to be won tooth and nail. So the pressure must always be on.
51 - Cindy
#51
Roger,
Is that a philosophical point? Is there someone I can read to find out more about that?
Arihoodimes or someone! LOL (Sorry, my friend John says I sound like he expects Rush Limbaugh would if he were discussing philosophy.--I used to take my tests at school and I would get the ideas down right, but I'd have all the philosophers names with the wrong ideas.)
52 - roger nowosielski
Not really. I think is more in the realm of human/animal psychology - a purpose driven animal. George Herbert Mead might be one source - "Mind, Self and Society" (a must-read). I consider it more or less as a fundamental tenet spanning over the behavior of organic life form.
Come to think of it, I'd better look it up myself. I think it's self-evident, however.
53 - Cindy
48, 49, 51, 52
I think we have arrived at seeing eye-to eye on this. About #49, I'd like to add, not only a vested interest, but an overt cultural imperative.
For example, the idea that all people coming in to the country should put their own ways aside and learn our ways. Here is an example of that:
Mark Krikorian
(If you do notice the comment I made on the reply section, I'll just explain that I was trying to mirror the style of Commrade Physioprof.)
54 - roger nowosielski
Yes, I was right, Cindy. The paradigm comes from Mead. I guess it had stuck with me all those years.
55 - Cindy
Thanks. It sounded like psychology. I though maybe I would develop an interest in philosophy.
56 - roger nowosielski
#55,
"an overt cultural imperative ... for example, the idea that all people coming in to the country should put their own ways aside and learn"
Right, except that this view has long been challenged. I think even the idea of a "melting pot" did challenge it in some way (to the extend you weren't supposed to deny you ethnicity but bring it into the fold). And now the idea of multiculturalism is the last nail in the coffin, I hope.
So the voices on behalf of the cultural imperative are rarer and rarer, though not altogether extinct.
57 - Baronius
"...Otherwise either the opinions would all be the same or they are all not even trying to be neutral. Does this make any sense?"
That depends. I don't think most lawyers are trying to be neutral when they debate Bush's interrogation policy. I don't mean that as a slight. I don't think economists are neutral when they debate tax policy. It's the job of a judge, not a lawyer, to be neutral.
Also, I'm sure that a lot of us in the current public debate haven't reviewed all the facts, lawyers included. Presumably a judge would be presented with all relevent facts, if the counsels were doing their jobs.
But lastly - and this is the big point that I think you're ignoring - the judge's thinking on the matter is ultimately determined not by his race or status, but by his judicial philosophy. That's the means by which he weighs the meaning of the law, the relevence of prior rulings, and any issues of constitutionality. One can debate those things, and decisions will turn on that debate. If he weighs those things without bias, he's a good judge. If not, he's a bad one.
58 - roger nowosielski
They each have their virtues and proper domain.
59 - roger nowosielski
Neutrality isn't always a virtue - especially when you aim at presenting a strong argument.
But in an ideal or perfect world - there should be (in most cases) something like only one right and just decision - unless a person is a relativist.