Two Cracks to Slip Through

A venomous rant by Maureen Dowd shows us exactly how and why Judge Sonia Sotomayor's opponents haven't a prayer of stopping her from reaching the Supreme Court -- barring a "meltdown" on her part or a near-miraculous epiphany about the proper role of a Supreme Court justice on theirs.

Two popular misconceptions -- one about the proper, non-cognitive role of emotions and one about the proper role of a Supreme Court justice -- are shared by her proponents and opponents alike, shielding her from the criticism she deserves now.

First, we have the soul-body dichotomy, which manifests here as the notion that reason and emotions are opposites, and that our choice between them is either-or.

Despite the best efforts of Republicans to root out any sign that Sonia Sotomayor has emotions that color her views on the law, the Bronx Bomber kept a robotic mask in place.

A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

Don't get hung up on the sexist and racist slur against males of European descent. That's just a smear against Dowd's real targets -- people having Western values. She makes her smear by arbitarily equating them with various negative stereotypes of Republicans. (Why else would race and sex matter?) The important thing here is the glee that Dowd shows about how easily -- if we take her assessment at face value -- that Sotomayor is foiling the Republican attempts to call her out on a vice that Dowd herself admits she has. Sotomayor is succeeding simply by acting "robotic."

How robotic? Take a gander:

She even used a flat tone when talking about the "horrific tragedy" of 9/11, when she was living near the World Trade Center.

Even setting aside the mislabeling of this atrocity as a "tragedy," this is bizarre. Did this not anger and frighten Sonia Sotomayor, herself? Does Judge Sotomayor not care about the victims of those events? And is she not confident enough in the justice of the laws and founding principles of this nation to think that, within her prospective role as a Supreme Court justice, she would be doing her part -- whatever her decisions -- to ensure that America remains strong enough at least to live to fight another day?

The ease with which Sotomayor's ruse seems to be working can be explained by the acceptance on both sides of this debate of the soul-body dichotomy. Both see reason and emotion as opposites, with each side paying lip-service at different times to the idea that either reason is man's tool of cognition or that emotions are. This time, the conservatives are holding the banner of reason (although often upside down), while the left believes emotions are needed in applying or interpreting the law.

So the conservatives are parroting without grasping the content of charges like those made by ARI's Tom Bowden that Sotomayor is unqualified for this position due to her belief that objectivity and impartiality are impossible. They know enough to try to trip her up on the grounds that she will rule based ultimately on her emotions, but, failing to understand the true nature of emotions, don't see her iciness as the red flag that it is.

Emotions are not tools of cognition, but they do reflect one's values and motivate one's actions. A sitting judge must apply logic rigorously to all questions that come up, but this does not preclude anger at massive injustice or harm to the country one is sworn to protect. Reason and emotion can and -- when one's principles are objective -- will end up on the same side.

And that brings up the second point.

The soul-body dichotomy is just the start of the difficulties of Sotomayor's senatorial adversaries. The other "crack" our suddenly snake-like nominee is slithering through is that between originalism (which is widely mistaken for judicial objectivity) and "legislating from the bench" (a dangerously imprecise term for non-objectivity). Besides explaining this better than I could, Tara Smith succinctly shows why this is happening:

While each of these reasons may help to explain Originalism's appeal, none of them captures the heart of the issue. The deeper reason that Originalism will not die, I think, is that it has staked out the moral high ground, championing the objectivity of interpretation that is essential to the ideal of the rule of law. Anything other than fidelity to the written words, it seems, surrenders us to the rule of mere men (the individual justices on the bench).

Or so things would appear.

What I will suggest is that the very objectivity which explains Originalism's appeal is misunderstood by Originalists themselves. And part of the reason that criticisms have not inflicted more crippling damage is that the leading alternatives also suffer from confusions about appropriate standards of objectivity in the legal domain -- which many people sense, I think, and which sends them back to the apparently safer harbor of Originalism. [bold added]

Writing elsewhere, Smith notes a big problem with originalism:

The charge of "judicial activism" typically condemns proper activity on the part of judges along with improper activity. It has become dangerously commonplace to equate a judge's support for overturning a law with pernicious activism. Prevailing wisdom holds that we can identify "activists" simply by counting up the number of times a judge rules against existing laws or government practices. Notice that by that logic, the only way for a judge to avoid overstepping his authority is to engage in no activity--to simply rubberstamp whatever the legislature and other agencies of government serve up. What, by this reasoning, is the point of having a Supreme Court? Some laws should be struck down. ... Judges who so rule are acting responsibly and fulfilling their function. [bold added]

And she later explains what ought to be going on in hearings like this:

The salient question in assessing any nominee, then, is not whether a judge takes action, but the factors that guide his actions. To be qualified to sit on the Supreme Court, a person must, at minimum, understand three basic facts: First, that individual rights are broad principles defining the individual's freedom of action. The familiar rights of life, liberty, property and the pursuit of happiness subsume a vast array of particular exercises of this freedom, some explicitly named in the constitution (e.g., the freedom of speech) and some not (the right to travel). Second, he must understand that the government's sole function is to protect individuals' freedom of action. As Jefferson explained, it is "to secure these rights, [that] governments are instituted among men." Third, he must recognize that our government properly acts exclusively by permission. Articles I, II and III specify the powers of the three branches of government and the 10th Amendment expressly decrees that powers not delegated to the federal government are reserved by the states or by the people. The government, in other words, may do only what it is legally authorized to do. [bold added]

But for this to happen, someone in the Senate needs to understand what qualifies someone to sit on the Supreme Court. Until then, Dowd will get to crow about her inept heroine parrying even more inept blows:

The judge's full retreat from the notion that a different life experience is valuable was more than necessary and somewhat disappointing. But, as any clever job applicant knows, you must obscure as well as reveal, so she sidestepped the dreaded empathy questions -- even though that's why the president wants her.

"We apply law to facts," she told Kyl. "We don’t apply feelings to facts."

To an originalist, that reply is the sound of the oven timer going off. To someone interested in objective law who understands that the law must sometimes be interpreted in light of objective principles, that's the signal that some more time and a thermometer are needed for that goose.

During the rest of her column, Dowd wallows about in her smear of "white Republican men," making the point that many Republicans are, under the skin, also really just fellow emotionalists. (I agree with her there.) Her point in doing so is to is to make sure that reason never rears its head -- ugly to her -- as a serious threat to the left again. She wants us all to think -- no, to feel -- that objectivity is a mere figment. (I emphatically and confidently disagree with her about that.)

-- CAV

Updates

Today: (1) Corrected a typo. (2) Added hyperlink for "soul-body dichotomy." (3) Changed "ruling from the bench" to "legislating from the bench."