The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.
Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
Here to me is the question: Are we at root rational creatures, or emotional creatures? We have covered ground which tells us about the importance of reason (the influence of the enlightenment in America), and the degree to which reasonableness is a criteria in legal decision making (reasonable doubt, etc...) but the Federalist Papers are full of observations about human nature, how people actually behave versus how we might want them to behave. Aquinas argued that reason was the voice of God in man. To say this suggests that our infallibilities as humans do not negate our ability to hear that voice clearly. I think the founders would have argued that we cannot hear that voice, and if we could, we would not act on it.
#10 tells us the we are prone to form violent factions and vex and oppress each other. #51 reminds us that we are not angels, and that the entire enterprise of governmental formation is meant to correct for this deficiency. I'm betraying a point of view here, but isn't Sotomayor reminding us indirectly of this observation that is at the heart of the American Constitutional system?
We may wish for judges to decide objectively, but will they in fact do so? And if not, should we compensate for this, as we compensate for the ambitions we will naturally expect exhibited by individuals who control the three departments of government? Why shouldn't we expect that judges will be influenced by their backgrounds? Isn't it inevitable? Why shouldn't we compensate for it by ensuring that individuals from various backgrounds sit on the same court so that the totality of the various points of view about justice can check and balance each other?
I always thought the success of the American governing system was that the founders had no illusions about human fallibility, and designed a system to compensate for it. The danger, as I see it, is that opponents of Sotomayor seem to imply that the current occupants on the court are truly objective and free from the biased influence of their backgrounds. This is a dangerous notion. If we disregard the evidence that backgrounds matter, then we risk having a court composed of individuals from one background (that's the point about having all white males there) and justice will inevitably be biased in the direction of their shared background, and that becomes defined as the objective, just outcome. It will hardly be that.
