The Susan Sotamayor confirmation is bringing with it some interesting commentary. While most of the pablum surrounding Sotamayor’s scutinized comments—that her Puerto Rican heritage prepares her for this position—are about racism (or reverse racicsm, whatever that is), there have been some comments on the nature of reality and the human experience. In our plural society, there is kerfuffle over two competing ideals (as I see it):
There exists immutable rules pulled from the eternal ether against which our frail human intellects must seek alignment with laws, policies and ourselves (and I mean all of them, not just life, liberty and property the pursuit of happiness).
Experience is reality and the public sphere (and its laws and policies) is the ongoing (and unending) attempt to find commonalities between all of us based upon a tiny set of values so basic that they can be declared universal (life, liberty and property the pursuit of happiness).
The following is from an editorial by Stanley Fish in the NY Times entitled _ What kind of judges do we want? (_emphasis mine):
If Sotomayor is being prescriptive, if she is saying, “I will actively (as opposed to involuntarily) consult the influences that have shaped me at every point of decision,” she is announcing a method of judging that invites Sessions’s criticism.
But if she is being descriptive, if she is saying only that no one can completely divest herself of the experiences life has delivered or function as an actor without a history, she is announcing no method at all. She is merely acknowledging a truth (as she sees it) about the human condition: the influences Sessions laments are unavoidable, which means that no one can be faulted for viewing things from one or another of the limited perspectives to which we are all (differently) confined.
In fact – and this is what Sotomayor means when she talks about reaching a better conclusion than a white man who hasn’t lived her life – rather than distorting reality, perspectives illuminate it or at least that part of it they make manifest. It follows that no one perspective suffices to capture all aspects of reality and that, therefore, the presence in the interpretive arena of multiple perspectives is a good thing. In a given instance, the “Latina Judge” might reach a better decision not because she was better in some absolute, racial sense, but because she was better acquainted than her brethren with some aspects of the situation they were considering. (As many have observed in the context of the issue of gender differences, among the current justices, only Ruth Bader Ginsburg knows what it’s like to be a 13-year-old girl and might, by virtue of that knowledge, be better able to asses the impact on such a girl of a strip-search.)