Sotomayor Confirmation: ‘Splaining Bias and Other Tidbits of Gender and Ethnicity

Are You Biased?

Yesterday, Sonia Sotomayor faced down predictably pointed questions from white male Republican senators who seemed to be worried their hegemony might be on the wane. She was asked repeatedly about what biases she might bring to judging in light of her comment that a “wise Latina” might just make better decisions because of her gender and ethnicity. I wasn’t especially impressed by her answers that apologized for her words, because frankly, I agree with her original contention that we all benefit from our experiences, and I think that the experience of discrimination often makes one especially committed to liberty and justice for all.

Peter Winn, now a professor of history at Tufts University who taught Sonia Sotomayor at Princeton, had this to say in a Washington Post commentary about the pervasiveness of bias in general and Sotomayor’s biases  specifically:

I must take responsibility for her mention of a “bias.” I taught Sonia that people often have strong opinions on issues that they care enough about to research, but what is critical is that they recognize those biases and set them aside. That is what Sonia did in her senior thesis. I still think it is a best practice for a student — or a judge.

What’s the Power of Perspective?

Do you suppose those, largely male, largely white, people who have for many years held most power positions in American society never had any biases? If that’s what you think, it is probably because their biases have so infused the culture that they are called “the norm.” Barbara Cohn Schlachet, a psychologist/psychoanalyst, wrote about the influence of gender and ethnicity in how we perceive the world around us in her Women’s Media Center analysis:

When I was in psychoanalytic training, a colleague mentioned to me a female patient who, he said, frequently saw men exposing themselves to her on the subway. I commented that “flashers” were not uncommon on the subway, to which he scoffed, “I’ve never seen a flasher on the subway!” My curiosity was piqued. I asked male and female friends and colleagues whether they’d seen subway flashers; not surprisingly, none of the men and all of the women had.

I bring this anecdote up to illustrate the fact that what we see is determined by who we are; that the world is perceived differently, though not necessarily incorrectly, by our own experience of it. This is particularly relevant right now, when questions about whether Supreme Court Justice nominee Sonia Sotomayor will let her gender and ethnicity inform her thinking on the bench. According to much scientific and philosophical thought and theory, it would be impossible for her, or, for that matter, anyone else, not to.

In The Structure of Scientific Revolutions (1962), Thomas Kuhn posits that every society has an underlying paradigm that pervades every aspect of a culture—its science, aesthetics, politics, social structure, literature, even its forms of aberrancy. Scientists try to fit nature or data into the boxes that the paradigm supplies. Even in the hard sciences, which almost define our notion of objectivity, what we study and discover is determined by what we see, and what we see is dependent on our paradigm. Our paradigm prepares us for what we are going to see, what areas are to be investigated and how we will interpret what we find upon investigation.

Judge Sotomayor must, by virtue of her experience as a woman and as a Latina, bring a different, though not necessarily a more “empathic” or “emotional” perspective to her judicial work. This is no more the case than it would be for, say, Justice Alito, who comes from the experience of a white, Catholic male of Italian background. Judge Sotomayor is the product of a different paradigm, and would be expected to see aspects of an issue that the majority of the court might not see. This does not mean that she would necessarily be voting in favor of women or minorities; simply that she might add another voice to be considered, in the same way that I did in discussion with my male colleague, who didn’t “see” flashers on the subway, not because he was sexist, but because being “flashed” was not part of his experience.

There has been much speculation about whether or how Sotomayor’s gender, ethnicity, and religion might affect her position on reproductive rights. Though shorthand is usually “abortion” and “Roe v Wade”, really we are talking about the right to make childbearing choices, including birth control, abortion, childbirth, adoption, and overall moral agency over one’s own body and life. That’s why I was concerned enough about her less than forthcoming answers on this topic to tweet this question earlier today”

@heartfeldt So if #sotomayor wasn’t asked about abortion, didn’t Obama break his campaign promise to appoint only judges who affirm repro rts?

Here’s the resulting exchange from my Facebook page:

  • oh the scuttle on this is so disheartening. we’re being urged not to worry. there is supposed to be some sort of “knowing without saying” that we’re supposed to swallow, instead of an outright position statement.
  • does that make YOU feel comfortable? …and statements that roe is “settled law” don’t really mean anything, because it’s settled until it’s reinterpreted or further limited, etc etc.
  • Once she gets confirmed…roe vs wade will not be touched…
  • Roe is necessary, but no longer sufficient. If she merely upholds precedent, then she will be upholding many restrictions on reproductive rights that previous courts have let stand while upholding Roe’s underlying principle of a right to privacy.
  • I am not comfortable at all. Especially since the Obama administration has coached her comments. Rather than taking the issue head on, they are trying to avoid it. Red flag to me.
  • well, Obama has just appointed a surgeon general who got a commendation from pope benedict for her work. catholic websites celebrate her appointment… there’s a pattern developing there, hot on the heels of Collins (of creationist fame) appointment as head of the NIH.
  • Which this administration is doing with gay rights too. Maybe I was expecting too much but I had such (clearly unrealistic) hopes with this administration. It makes me feel foolish. I not only voted for him but I did it excitedly and while staunchly defending him. Sotomayer better be playing to her audience and end up being pro choice!

McClatchy’s recap of this exchange between Sotomayor and Senator Cornyn (R-TX) is an example of what we were talking about–cause for concern or just political theater?

The first exchange over abortion came as Cornyn noted that the White House reportedly was offering vague assurances to abortion rights groups in May that Sotomayor would be sympathetic to their views.

How would they know that? Cornyn wondered.

Sotomayor said she didn’t know.

“I was asked no question by anyone, including the president, about my views on any specific legal issue,” she said.

Cornyn said he wondered what the basis was for such White House whispers.

“You just have to look at my record to know that in the cases that I addressed on all issues, I follow the law,” Sotomayor said.

Cornyn had other evidence, citing statements from George Pavia, a former Sotomayor law colleague, that he could “guarantee” she’d be for abortion rights. On what basis could he say that? Cornyn asked.

“I have no idea,” Sotomayor said, “since I know for a fact I never spoke to him about my views on abortion or, frankly, my views on any social issue. . . . I have no idea why he’s drawing that conclusion.”

In her 17 years as a federal district and appellate judge, Sotomayor rarely got involved in abortion cases. She did rule on President George W. Bush’s “Mexico City policy,” which barred public funds to organizations that promote abortion in other countries. President Barack Obama reversed the policy in January.

Sotomayor sided with Bush, ruling against the abortion rights groups, in her 2002 decision. Her ruling relied largely on legal precedent, however, and didn’t deal with the abortion issue.

Sen. Tom Coburn, R-Okla., tried to pin down Sotomayor, but she wouldn’t bite.

Asked to described “settled law” on abortion, she said she abided by current law, and she recited recent court rulings.

What about late-term abortion, Coburn asked, if a 38-week-old fetus has a terrible disease?

“I can’t answer that question in the abstract,” Sotomayor said.

How about the impact of technology on current precedent? Technology, Coburn said, has made it easier to detect life since the landmark 1973 Roe v. Wade ruling, which opened the way for legal abortion in many cases.

“All I can say to you is what the court’s done and the standard the court has applied,” she said. As Coburn pressed, Sotomayor wouldn’t offer any personal views. “We don’t make policy choices in the court. We look at the case before us,” she said.

Gnash teeth. Wondering whether she remembers how we got George W. Bush as president, ended school segregation, and enabled women to vote–not to mention attend the law school of their choice. Stay tuned…questioning is about to begin again.

GLORIA FELDT is the New York Times bestselling author of several books including No Excuses: 9 Ways Women Can Change How We Think About Power, a sought-after speaker and frequent contributor to major news outlets, and the Co-Founder and President of Take The LeadPeople has called her “the voice of experience,” and among the many honors she has been given, Vanity Fair called her one of America’s “Top 200 Women Legends, Leaders, and Trailblazers,” and Glamour chose her as a “Woman of the Year.”

As co-founder and president of Take The Lead, a leading women’s leadership nonprofit, her mission is to achieve gender parity by 2025 through innovative training programs, workshops, a groundbreaking 50 Women Can Change The World immersive, online courses, a free weekly newsletter, and events including a monthly Virtual Happy Hour program and a Take The Lead Day symposium that reached over 400,000 women globally in 2017.

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