This week finds Judge Sonia Sotomayor in the middle of the job interview of a lifetime. Every U.S. Senator has pretty much accepted the fact that- in sports lingo- Judge Sotomayor, ‘controls her own destiny’. That is to say that barring some monumentally stupid remark, she is a virtual lock for the job. However, the Senate Judiciary Committee will still put her through the paces.
Ordinarily, it would be a fairly uneventful proceeding for me. But there are a couple things of interest.
A few years ago, long before President Barack Obama tapped her to become the next Supreme Court Justice, Judge Sotomayor made some comments that are coming back to haunt her. In a now infamous 2001 speech, she stated, “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.
It was- in retrospect- a surprisingly unwise statement for a judge with higher aspirations to make and one she is now repeatedly being asked to account for. Yet Sotomayor’s statement is one we all hear every day: women presuppose that their opinions are superior to those of men. Men believe their judgment is superior to that of women. The young assert that their opinions and views are superior to those older than them. Conservatives believe their views are superior to those of liberals and independents. And so on.
But where the law is concerned, people like Judge Judy, Judge Alex, and Judge Joe Brown tell us that a judge is supposed to be impartial, free of bias and prejudice. Opponents of the Sotomayor nomination believe that President Obama’s pick will be unable to separate herself from her experiences and values in the interpretation and adherence to the rule of law.
I would agree. In fact, I would venture to say that this is true not just of Judge Sotomayor, but of all past, present and future Justices. And not just those on the Supreme Court, but those at all other levels of office as well.
To be blunt, I believe impartiality to be…well...a myth, one that runs contrary to our very nature. And I believe there are at least three reasons why.
The outside always comes in
The acquisition of our values, beliefs, and philosophies begins at an early age and we spend the rest of our lives either confirming or rejecting the values and opinions we are exposed to as children. They define and anchor our identity- who we’ve been, who we are now, and who we hope to become. Even when we are not aware of them, our values are quietly operating in the background, influencing who we choose to associate ourselves with, where we shop, what we buy, watch, listen to, read, crave and even fear.
We are- for the most part- proud of our values and experiences. And we should be. They comprise our heritage, shape our family traditions, and connect what has come before to the ever-present now.
There should be no doubt that such things influence our decisions, in ways we are still unable to fathom. To go against the grain of our values takes a conscious, occasionally monumental effort to overcome and frequently exposes us to stigmatization and various other sanctions. It is not impossible for us to go against our values, but because we are creatures of habit who don’t like to stray far from our areas of comfort, we don’t do it often. Not if we can help it.
This would explain why I have heard so many politicians, presidential candidates, and Supreme Court nominees trumpet and showcase their personal stories: it makes them more human. It celebrates the unique qualities and characteristics that have made them who they are. It wasn’t so long ago that we were all talking about how Wall Street needed to learn a few things from Main Street, and how Washington needed more Joe Six Packs and fewer elitists incapable of relating to the everyday American. Where did that sentiment go?
We value the consistent, even application of rules for everyone. Everyone except ourselves, that is.
We believe that there should be an inherent fairness and equanimity in our approach to everything and everyone, yet we make snap judgments about people based on appearance, accent, education, status, and income all the time. And when we it is shown that our judgments are wrong, we fight tooth and nail to justify why that experience or individual was merely an exception that might bend our general rule, but not break it.
Parents often say that they raise their children exactly the same, supervisors and managers say they supervise and manage their employees in an identical manner. Judges say they decide all their cases based on its merits as opposed to the emotional arguments presented. But I believe the honest truth of the matter is that we do not. We may attempt to, but there are subtle and not-so-subtle differences. We play favorites. We craft black sheep. Right now, there are countless sons and daughters in therapy or on their own seeking to deal with the fact that their father or mother didn’t love them as much as they did a younger or older brother or sister. Right now, there are numerous lawsuits clogging the system alleging that a boss made exceptions for everyone else except them. Clearly, something isn’t connecting between what we say and what we do.
It is this disconnect that allows someone like Republican Mark Sandford to demand the resignation of Democratic President Clinton for sexual improprieties with Monica Lewinsky, but to then ask for a pass when his own are discovered (or confessed…repeatedly). It astounds me how politicians of all kinds fail to recognize, let alone admit, the blatant hypocrisy in the application of two different standards for the exact same offense- one for the members of their own party and a separate one for their opposition.
The ‘Us vs. Them’ mentality
Judge Sotomayor got into trouble because she played the ‘better than’ game. I don’t believe it was the acknowledgement that her experiences were different that raised eyebrows so much as the supposition that her experiences were better than those of white males. But this, again, is something that we all do almost daily: we engage in the game of pretending that our values and experiences- and those like us- are superior to the values and experiences of our competitors or those different from ourselves. I call it the Lake Wobegon Effect: we are all above average. And because we are all above average, our views and experiences are automatically better than anyone else’s. Although this is a flawed mindset, it does make us feel special.
The retail industry has known for quite a while that we lead with our hearts and justify our actions later with our heads. For centuries, it has developed elaborate campaigns designed to appeal not to our sense of logic and reason, but to our sense of desire. It is why one out of every three commercials aired during a football game will feature alcohol, automobiles, or both. Yes, we will always buy things that add practical value to our lives, but it’s just so much more fun to buy things that make us feel good.
Don’t get me wrong. I believe impartiality to be a noble aspiration. And no, I don’t seriously believe that it is a myth. Not entirely. But the wink and nod our justice and various other systems and institutions pay to it now is an insult to anyone with even a modest understanding of legal or political history. And it only leads to continued bitterness, resentment, and cynicism. A change is due, if not overdue.
I also believe that there should also be an equally important place for empathy and compassion in our lives. I think our world would be markedly different if we were all more compassionate and empathetic. Leaders would think twice about declaring war if they had to experience firsthand what it felt like to send their son or daughter to war and lose them in battle. Companies would be less likely to let employees go or relocate overseas if their CEOs and top management had to live on the salaries their employees averaged. Politicians and policymakers would spend more time trying to understand and advocate for all their constituents if they had to live out the results of their decisions and legislation.
Maybe that’s the true myth- that we could ever achieve such a state of existence.
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