Senate confirmation hearings for Supreme Court Justices have been consistently absurd for quite some time now, but Sonia Sotomayor’s hearings have been of special note. Sotomayor repeatedly tells us that she strives to be an unbiased judge (which she undoubtedly does) and her opponents repeatedly counter that her life experiences will inevitably inform her decision-making process (which they undoubtedly will), as though the one negates the other.This discourse does not allow anyone involved to be honest about what is at stake. Yes, all judges must strive to be impartial, but all judges are also human beings, and all human beings are biased. So Sotomayor will never prove that she is an entirely impartial person (because no one is) and her opponents will never prove that she has to be an entirely impartial person (because, again, no one is).

And more to the point, nominees to the Supreme Court are selected for their biases as well as for their intelligence and professional experience. If judges were actually expected to be impartial, then it wouldn’t matter which party, or which president, nominated which Justice. Ronald Reagan famously reasoned that Sandra Day O’Conner would vote to outlaw abortion because of her personal bias against it. Just as famously, this plan backfired.

Jeff Sessions tells us of his “fear” that judges will employ an “empathy standard” rather than being faithful to the rule of law.  He then asks us to empathize with the New Haven firefighters whose promotion exams were thrown out. He also argues the following:

President Obama says that when “constitutional text will not be directly on point,” the critical ingredient for a judge is the “depth and breadth of one’s empathy,” as well as “their broader vision of what America should be.” But when a judge shows empathy toward one party in a courtroom, do they not show prejudice against the other?

Here Sessions makes the interesting assumption that an empathetic judge cannot show empathy to both litigants. Empathy, it seems, is synonymous with bias and prejudice–but only when a judge is the one being empathetic. The rest of us need to exercise some serious empathy. I mean, just look at those poor firefighters. Doesn’t reverse discrimination, or even anything that superficially resembles it, break your heart?

Why is Sotomayor’s particular bias considered so dangerous? Here I defer to Stephen Colbert, who was made the point better than anyone:

(Embedded video is currently broken, so here’s a link).


  1. The question isn’t whether a judge is biased (as you note, they will always be biased somehow). Likewise, I agree that the whole confirmation hearing is political theater with all sides talking out of both sides of their mouths.

    The question is which biases should reign. Having a bias toward interpreting the Constitution textually is certainly preferable to interpreting the Constitution on the “I’m a wise latina” rationale. The Supreme Court justices who voted for the Dred Scott decision (holding that black people were not citizens of the United States) were also biased, but clearly their biases are unacceptable, right? We must judge between biases and determine which we’d rather have on a consistent basis.

  2. I completely agree that we must prefer one bias over another. The bias against States’ Rights that informed the Brown v. Board of Education decision was clearly preferable to the bias against racial equality that informed the Scott v. Emerson and Scott v. Sanford decisions.

    But how is that latter, racist bias in any way analogous to Sonia Sotomayor’s “wise Latina” comment? What Sotomayor said, if I am not mistaken, was, “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.” I fail to see how that sentiment precludes “interpreting the Constitution textually,” or in what sense it is “unacceptable.”

    1. Judge Sotomayor has plainly said that she will use foreign law to interpret American law. Given that those foreign nations were not consulted when creating our constitution, it is clear that she will not constrain herself to the text and meaning of the constitution. The fact that she believes her race and gender will lead her to “better” decisions means that she thinks her race and gender are relevant to the true interpretation of the law. Neither her race nor gender, nor Justice Alito’s race or gender, are relevant. The intentional use of her race and gender experiences in “constructing” an interpretation of the written law, as she has promised to do, is unacceptable. Just as it is when conservative judges do it.

      Here’s a better explanation:

  3. The foreign law issue is largely separate, so let’s deal with that one first. I believe that you are referring to this quotation, which I have taken from your blog:

    “Ideas [from foreign law] have no boundaries, ideas are what set our creative juices flowing, they permit us to think. And to suggest to anyone that you could outlaw the use of foreign or international law . . . would be asking American judges to . . . close their minds to good ideas. . . . But ideas are ideas, and whatever their source—whether they come from foreign law or international law, or a trial judge in Alabama, or a circuit court in California or any other place—if the idea has validity, if it persuades you, . . . then you are going to adopt its reasoning.”

    All she’s saying (as far as I can tell from that ellipsis-heavy rendition) is that judges have a responsibility to consider ideas from international law. She does not seem to be saying that international law trumps national law or legal precedent. To say that good ideas are good ideas “whatever their source” seems entirely reasonable to me.

    Regarding the racial bias issue: I fully agree that race and gender should ideally be irrelevant to a judge’s decision making process, but that is quite simply never going to happen. Although it is the responsibility of all people, and especially of judges, to curb their biases as much as possible, those biases will invariably remain. It would be absurd to suggest that Samuel Alito’s race and gender have no effect on his decisions, and it would be equally absurd to expect that they would not.

    The point that Stephen Colbert so brilliantly makes in the linked clip is this: Samuel Alito’s biases (those of a white man) are familiar, normalized, and perhaps even invisible in American governance. Sonia Sotomayor’s biases (those of a Latina woman) are conspicuous and novel in the ratified world of the Supreme Court.

    If Sonia Sotomayor has indeed “promised” to construct legal opinions based solely (or even primarily) upon race or gender, then I would like to see the quotation in which she did so. She certainly did no such thing in her “wise Latina” comment. And is anyone even arguing that she has done so with her judicial record?

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