Do not all judges only have a perspective?

Just reading an article from a few days ago in The New York Times about Judge Sotomayor’s views about judging that while made in 2001, which are now relevant because of her potential as a Sumpreme Court nominee and also as a way to discuss (or perhaps malign) President Obama‘s desire for a justice with “empathy.”

Well, she really could have said it better than this:

‘Whether born from experience or inherent physiological or cultural differences,’ she said, for jurists who are women and nonwhite, ‘our gender and national origins may and will make a difference in our judging.’

This, unfortunately makes it sound as if experience and identity only come to bear for women or non-white judges.  What is more accurate is that identity and experiences of oppression and privilege will necessarily come to bear on any judicial decision-making.  It is not just the dispriviledged for whom their dispriviledge shapes their perspective; privilege itself also shapes one’s perspective.

When we neglect this sociological truth, dominant identity positions (white, or hetersexual, or male) and privilege itself become invisible.  Dominant positions are take as neutral and natural “experience” and everyone else has “other” experiences that color it as different from some sort dominant plain-ole “experience,” which is really white (or male or heterosexual) experience.

Because what happens is, well, what has happened: conservatives decrying injecting one’s experience or identity into legal decisions–as if that really isn’t what happens in all judging–except that the makeup of the court (white, male) has been the same as the dominant American identity in our culture (dominant in sociology meaning power, not numbers), and therefore better reflects the status quo–the identity position from which legal decisions have been made since the U.S’s inception.

Now of course I am not saying that any identity position is monolithic–all women, all Latinos/as, all queer folk do not think the same, the same way that all men or all white folk do not.  And this is not to say that those who have been priviledged cannot develop a sense of empathy fo those who have.

But to say that one’s experience–whether one is part of a privileged or disprivileges social group (and sometimes some of both)–will can have no effect on judicial decisions ignores another statement Judge Sotomayor made, quoting another justice: “’there is no objective stance but only a series of perspectives.’”

The claim to neutrality perspective that conservatives claim their white or male justices have is itself, indeed, only a perspective.

(Cross-posted to The Reaction)

Published in: on May 16, 2009 at 12:21 pm  Comments (1)  

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