Is Judge Sotomayor's Tolerance of Bias Shocking?

Tibor R. Machan

Just after President Obama selected her as his nominee for the seat opened on the U. S. Supreme Court by the retirement of Justice David Suiter, some statements came to light that seemed to call into question Judge Sotomayor's loyalty to judicial impartiality.
As reported all over the media, the judge made the point once, in 2001 speaking at the University of California at Berkeley, that the ethnicity and sex of a judge "may and will make a difference in our judging." No, she didn't say it should or it is a good thing that it will but that it will, in fact, make a difference. She had also said, that "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."

Of course, such an attitude about making decisions on the U. S. Supreme Court--or, indeed, on any court of law--is objectionable or would be if someone where to champion being seriously swayed that way in applying the law of the land. Yet, is it objectionable if one states that one's sex or ethnicity is going to make a difference?

Many people in the fields studying human judgment hold this view. Recently a guest speaker at Chapman University's research center in experimental economics, Dr. Gerd Gigerenzer, gave a talk titled "Homo Heuristicus: Why Biased Minds Make Better Inferences" in which he argued that not only is bias inescapable but it's a good thing from the point of view of epistemological efficiency. In plain terms this means that human beings are better off when quite often they rely on their biases as they judge the world and their fellows around them. Part of why this may be so is that it's impossible to know all the relevant information pertaining to an issue; so relying on certain habits of mind formed by one's past experiences--which gave one a bias or prejudice, though not necessarily an irrational one--is unavoidable and valuable. It is a mistake to believe, this thesis suggests, that anyone can be totally impartial when making significant judgments about the world.

So when Judge Sotomayor tells us, in the spirit of full disclosure and based on what contemporary psychology and epistemology teach, that someone with extensive experience of a culture and the people in it is probably more likely to reach more reliable--"better"--conclusions than someone who is utterly unfamiliar with these, she is saying something pretty simple and true. Yes, it may sound to some like excusing some kind of ethnic bias but it need by no means amount to that. And in the case of Judge Sotomayor, who in the very same talk she gave at UC Berkeley Law School--used to be called Boalt Hall--also insisted that every effort should be made to leave one's personal (including political) preferences outside the court room, making mention of what appears on any fair reading a simple attestation of a fact should not be taken as a grievous professional fault.

A scholar I respect a great deal compared the admission of bias on the part of Judge Sotomayor to such an admission by other professionals whose skill is vital to the performance of their tasks. This scholar noted that if Judge Sotomayor were a brain surgeon or some other medical specialist, there would be no mention of empathy as any sort of professional qualification.

Yet even in the field of medicine we are often concerned with "bedside manners"--which boils down to what are called people skills--on the part of healthcare professionals. I can personally testify that when a doctor who is working to improve one's health treats a patient with total indifference, as if the patient were some kind of inanimate object rolling by on a conveyor belt instead of a human being with concerns and fears and such, this is not welcome and I can only assume that in the evaluation of such a professional it would make a difference--though by no means substitute for professional, skill, competence, or excellence.

I am no expert on who is or is not qualified to sit on the U. S. Supreme Court but I suspect that some of the reservations I have encountered in the media--voiced by various conservative commentators and even legal theorists--is something of a reach. I would be much happier if the dispute about Judge Sotomayor focused on her legal proficiency and not on her perhaps not to well expressed concern about showing a deep understanding of those standing before judges across the legal landscape.