Well, I guess it’s predictable that any SCOTUS nominee put forth by President Obama would raise the hackles of conservatives, and many of them have already started raising questions about Sonia Sotomayor. We’ll see how this all plays out, but I just want to comment on one conservative complaint that seems particularly philosophical.
While many are raising this issue, Michelle Malkin has summarized it quite clearly (and with the predictable negative slant)-
Sotomayor also referred to the cardinal duty of judges to be impartial as a mere “aspiration because it denies the fact that we are by our experiences making different choices than others.” And she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.”
There are at least two ways of interpreting Sotomayor’s remarks here, and it would be interesting to ask her which interpretation she has in mind. The first, which is clearly how Malkin is interpreting them, is that judges shouldn’t be too concerned if their own personal experiences and cultural backgrounds bias their decisions, because imparitiality or objectivity is merely aspirational. On this interpretation, Sotomayor is implying that there are “multiple truths”, and that the best we can hope for when it comes to institutions like courts is balance and diversity of opinion. If this is indeed what Sotomayor means, it is troubling, because it suggests a sort of post-modern dismissal of the concept of objectivity. When one scratches under the surface of the post-modernist view, it becomes clear that such a concept of truth is expendable, for on this view ‘multiple truths’ reduces to ‘multiple (strongly held) beliefs’.
The second way of interpreting Sotomayor’s remarks, however, suggests that she is just stating the obvious. On this view, objectivity, or what Thomas Nagel calls “the view from nowhere”, is aspirational, but not because there are “multiple truths”. Rather, it is aspirational because each person who seeks objectivity or impartiality necessarily does so from their own subjective viewpoint. For this reason, although objectivity may be an ideal of rationality (at least in judicial contexts), we should always keep in mind that it might be exceedingly hard to reach. And even if one does manage to reach it, one can never be certain that one has. What does seem clear, however, is that keeping such points in mind can help us to make our decisions more objective and impartial, because we are likely to be more on guard against our biases. My guess – or at least my hope – is that Sotomayor actually means something more along these lines, but I don’t expect the conservatives to even note the possibility of this interpretation.