Tuesday, May 26, 2009

All That We Are

NPR's The Diane Rehm Show today discussed the advantages of having a Hispanic woman (Sonia Sotomayor) on the Supreme Court. Because she'll be able to draw on a "wider palette" of experience, they say, she'll be a valuable asset and necessary resource.

Just because she had different experiences doesn't mean she has more, and certainly not ones more applicable to cases. Just because she'll be more empathic to women's issues or Hispanic culture doesn't mean she'll be more fair or that the court as a whole will be more fair. Yes, she can add something others can't, but in that endeavor aspects of a case can become more important than they should be. No net gain is obvious.

We are all merely the sum of our experiences so any fair judge would recognize that. This is what expert testimony is for. By expecting the justices to capture all that we are by their demographics alone, we hurt ourselves. Prioritizing gender or race (or sexual preference, or religion, or the presence of a disability, etc) requires us to narrow our field of search. It could well deny us someone far more accomplished, and fair, than whoever is left after we apply whatever parameters we happen to be prioritizing at the time.


Anonymous said...

I disagree. By having different experiences, the SCOTUS has a wider breadth of experiences to draw upon when making decisions. She will be able to ask questions that might not occur to the others and by doing so expose more of the case and the implications of the rulings.


David said...

I don't disagree that SCOTUS as a whole will have a wider realm of experiences, but you could say the same thing about having more expert testimony or having judges who are more open minded or thoughtful. The kicker is that if you have a white guy judge who's particularly humble and inquisitive, you'll end up with a larger breadth of knowledge than a Hispanic female judge who's no more humble or inquisitive than the next person. Granted, part of the prioritization of gender/race over mental agility comes from how easy it is to measure. But justices go through a lengthy confirmation process, plenty of opportunity to estimate that quality. Political correctness seems like a more likely motivation for court diversity. When you factor in the risk of bias in the opposite direction for the group in question (negating any benefit from additional experience); risk that the justice is, on average, less empathic to other groups; risk that the justice is less knowledgeable about other critical issues (narrowing the talent pool); and the opportunity cost of a judge of any race/gender/religion/etc but has a more open mind, prioritizing demographics has a very high cost.

Anonymous said...

What has changed is the physical appearance of the court. I remember when it was all white, all male. If this nominee is confirmed, the world view of the court will be altered, if only a bit. I think this is good.

Jason said...

Being open minded will only take us so far. In legal cases where they are judgment calls, practical experience should be preferable to open mindedness. Of course being open minded must be tempered with critical thinking.

There's something else you're forgetting. Not only must the court be fair and non-bias, it must APPEAR non-bias. Several years ago when the "under God" part of the Pledge of Allegiance was brought before SCOTUS, one of the justices recused himself. He did it because public statements me made would give the appearance of bias against the plaintiff.

Having a diverse court would not only widen the practical experiences (and thus better reflect the make up of the country) it will do a better job of convincing people their rulings come from the law and not their own personal bias.