Justice Sotomayor and the Jews
Reports have it that a popular inscription of late on coffee mugs and t-shirts is “wise Latina woman.”
The reference, of course, is to U.S. Supreme Court Justice Sonia Sotomayor’s contention in a 2001 lecture 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.” The comment was much discussed during the hearings that preceded Justice Sotomayor’s confirmation. While purchasers of the shirts and mugs are likely only taking ethnic pride in the Justice, who is of Puerto Rican ancestry, the comment is worth pondering. It may even hold a thought of particular value to Jews.
The idea of a judge’s personal experience influencing – enhancing or degrading – his or her judgment is intriguing. To be sure, a victim of a violent crime might not make the best judge in the case of someone accused of the same sort of crime, or an acceptable juror. That is why there are judicial recusals and jury disqualifications.
But the question of whether our general objectivity is necessarily skewed by who we are is less obviously clear. All of us, after all, are different, not only in our experiences and influences but in our essential psychologies. Must we divorce ourselves from all that in order to evaluate anything objectively?
Obviously not. The Torah, and for that matter secular jurisprudence, allows for flesh-and-blood people, with lives and experiences, to be judges. And, for that matter, all of us are required daily to make judgments in our personal lives.
At the same time, though, judges – and all of us – must consciously endeavor to be sensitive to the possibility of bias in any particular case. The illustrious Rabbi Yishmael, a sage of the Tannaic era, had a sharecropper who, as part of his obligation to the landowner-sage, would bring him a basket of fruit from the rabbi’s land every Friday. The Talmud (Ketuvot, 105b) recounts how, one week, the worker brought the fruit to him on a Thursday.
When Rabbi Yishmael asked why, the worker explained that he was party to a court case before the rabbi that day and thought that he may as well bring the fruit then too. Rabbi Yishmael immediately recused himself from the sharecropper’s case.
Although the account’s lesson is about the subtlety with which bribery can operate, personal bias too is a form of bribe. Rabbi E.E. Dessler notes that just as a scientist cannot draw meaningful conclusions from an experiment unless his measuring instruments are true, so are we constrained from making objective judgments when our psychological instruments are off kilter. Such imbalance can take the form of inherent character flaws or prejudice, racial or otherwise. And it, no less than a monetary bribe, “blinds,” as the Torah words it, “the eyes of the wise” (Deuteronomy, 16:19).
What Judge Sotomayor seemed to say in 2001 was that her perspective – as a woman, a Hispanic, a “wise” person – makes her a better judge. It, of course, does not. While none of those attributes need undermine objectivity, neither do any of them ensure it.
To her credit, the then-nominee backed away from the implication of her earlier statement, saying that “judges can’t rely on what’s in their heart. They don’t determine the law… The job of a judge is to apply the law… [not to] apply feelings to facts.”
Which brings us to the Jews. Or, better, to Judaism.
The Jewish faith is a system of both beliefs and laws, and, like all laws, Judaism’s are meant to be applied objectively. To be sure, there are instances where certain empathetic concerns can yield leniencies. In a kashrut case, for example, if hewing to the normative approach in particular situations will result in a great financial loss, it may be proper to adopt a more lenient one. Or, if a married man goes missing and is suspected to have died, certain evidentiary rules are waived for testimony about the man’s death, so that his wife may remarry. But those leniencies exist within the law, and when they can be invoked is itself the subject of law and precedent. Where there is no such recourse, empathy is insufficient to supplant the law. We are admonished to “not favor the poor man in his dispute” (Exodus, 23:3). The job of a judge, as Judge Sotomayor rightly concluded, is to apply law, not feelings.
It is common these Jewish days to read of how this or that group or individual is promoting a new, more “sensitive,” “contemporary” or “caring” approach to halacha.
And all too many Jews, falling into the conceptual trap from which Judge Sotomayor laudably extricated herself, imagine that empathy and compassion can only enhance the application of a system of law, not erode it.
It’s an enticing place to go, sending out a siren-song for the sensitive. But it’s sensitivity to truth, in the end, that matters.
That’s the case with man-made laws; all the more so, Divine ones.
© 2009 AM ECHAD RESOURCES
[Rabbi Shafran is director of public affairs for Agudath Israel of America.]
All Am Echad Resources essays are offered without charge for personal use and sharing, and for publication with permission, provided the above copyright notice is appended.
1. This article said “To her credit, the then-nominee backed away from the implication of her earlier statement, saying that ‘judges can’t rely on what’s in their heart. They don’t determine the law… The job of a judge is to apply the law… [not to] apply feelings to facts.’”
How can we be so sure that her bobbing and weaving before the Senate committee members at her confirmation hearing was anything other than an blatant attempt to curry their favor? Evidence that her core beliefs about the law or herself have really changed has yet to be found. Let’s see what she says and does as a Supreme Court Justice.
2. Rabbi Shafran is correct that subjectivity is unhelpful when the practical halachah needs to be determined. This applies all the more when a case is being heard by a Beis Din (rabbinic court) in our own legal system.
Shevet Mussar, Chapter 32, paragraph 9:
Every nation and race believes that
nobody equals them in wisdom or greatness.
Shevet Mussar was written in 1722 by
Rabbi Eliyahu ben Avraham Shlomoh HaKohen Itamari
of Izmir (Turkey), but since then, people have not changed!
The reason the halacha repeatedly warned judges against being biased is because it’s such an easy thing to be. There are all manners of justifications one can come up with.
What Judge Sotomayer’s attitude shows is that one can even be a racist (Latins are smarter than plain white folk) and a sexist (women are wiser than men) and be applauded for it.
Bob Miller, Rabbi Avi Shafran is a spokesperson for a significant Jewish organization. Of course he is going to give Justice Sotomayor the benefit of the doubt. The last thing he wants is to needlessly alienate people.
A judge’s personal experience is not only a possible source of bias, it can also help the judge understand something in a gut way that otherwise would be an abstaction. One who is color blind can never truly understand the beauty of a sunset in the same way as one who can see all the differnet shades. One who has know humiliation or fear, or for that matter joy or love, can better evaluate what those feelings mean in another than can one who ahs never felt those emotions. A wise Latino women (I have no idea whether or not Sotomayor is wise) can perhaps understand some things that a white Wasp (or Jewish) male can’t really grasp. Perhaps that is why to be on the Jewish Sanhedrin one had ot have children. To paraphrase J. Sontmayer, a wise parent with the richness of his experiences would more often than not reach a better conclusion than someone who hasn’t lived that life.
Justice Ginsburg was approved unimously by the Senate. Before Borke, we did not put nominees through the ringer this way. The confirmation process is a sign of the decline of menchlichkeit, also known as comity in the Senate. The President had a perfect right to appoint her and she was eminently qualified. The whole process was demeaning and insulting to her and it is a pity that some Senators were forced by the NRA to oopose someone whom they knew to be qualified. There is a lot of hatred in our political system, a lot of rage against President Obama and an unwillingness ot let democractic institutions work. There is room for decent discussion,but the nomination of Justice Sotomayor was another example of the decline of our political culture. She will have the rest of her life to demonstrate whether she is a decent human being worthy of this position.
I consider myself to be a political conservative, and so I oppose Sonia Sotomayor’s political ideology. But I am not sure that this is reason enough to vote against her nomination as a Supreme Court Justice. Nor do I think that her ethnic comments are reason for dismissal, either. After all, most of us here have tremendous pride in our own Jewishness; I see nothing wrong with Sonia Sotomayor feeling a similar affinity with her own people.
What would concern me about her, though, are two things. One would be her history of legislating from the bench. Has she done this? From a purely legalistic point of view, perhaps the worst aspect of the Roe v Wade decision legalizing abortion across the country, was that those Justices who decided that way, created a new Federal law that had not existed before. Justices keep their position for life; for them to legislate from the bench, means a few judges’ wishes take precedence over the will of the people. It is pure tyranny.
The other thing that concerns me about Sonia Sotomayor, is the fact that she never had children. If I recall correctly, in Jewish law, one is not permitted to serve as a judge, unless one is married with children. Apparently, there is a certain aspect of compassion, that can only be developed if one has children. It is a type of compassion so important, that Jewish law mandated that judges must have children.
While the U.S. Supreme Court is not a Jewish court, it would serve this country’s courts well, to learn from the eternal wisdom of our Torah sages.
L. Oberstein: She will have the rest of her life to demonstrate whether she is a decent human being worthy of this position.
Ori: True. Of course, once she’s in this position there’s no way to get her out except for impeachment, so it makes sense to do some due diligence.
There is a lot of rage against President Obama. There was also a lot of rage against President Bush. The two might be related.
Perhaps you are referring to the mishneh in horiyot:
תלמוד בבלי מסכת הוריות דף ד עמוד ב
מתני’. הורו ב”ד, וידע אחד מהן שטעו ואמר להן, טועין אתם, או שלא היה מופלא של ב”ד שם, או שהיה אחד מהן גר או ממזר או נתין, או זקן שלא ראוי לבנים – ה”ז פטור, שנאמ’ כאן עדה ונאמר להלן עדה, מה עדה האמורה להלן – כולן ראוין להוראה, אף עדה האמורה כאן – עד שיהיו כולן ראוין להוראה.
which would exclude the elderly from psak (hmmmm)!
“Before Borke, we did not put nominees through the ringer this way.” Actually, Abe Fortas went through the wringer just as badly in 1968. And while we’re at it, don’t forget Louis Brandeis, whose confirmation process was the most stormy in US history. And there have been others as well.
With regard to Justice Sotomeyer’s comment about a “wise Latina woman,” it isn’t that different from numerous comments Justice Frankfurter used to make about how his status as an immigrant from Austria made him better able to appreciate American liberties than others.
To Mr. Reisman: the statements aren’t quite analogous. Justice Frankfurter was in effect putting down his past to glorify what America had to offer. Justice Sotomeyer is proclaiming moral superiority based on wisdom that her past inculcated in her.
I’m not saying this to blast Justice Sotomeyer at all, I really didn’t have much quibble with that comment, just trying to explain why some people do feel threatened.
If only we could have a return to civility in our political discourse. Senator Kennedy was respected by Republican Senators and they often found common ground. Too much of what passes for discussion today is nothing but invective and demonstrates a profound distrust of the other side. In fact, for many Jewish Orthodoxy bloggers, there is no other side. Senator kennedy, President Obama and every other Democrat is the “sitra achra” the “dark side’ of the force and has to be put down.
I have been hounded for months now by someone who writes me emails demanding that I publicly recant, so here goes :”I committed big errors through my inacurate analyses and I do regret my behavior.” (quoted from Saeed Hajjarian who is on trial in Iran at present.)
It’s ironic how Senator Kennedy is being touted as an example of finding common political ground by the same person who laments the demeaning judicial confirmation process that began with Justice Bork. It was Senator Kennedy who so stridently and unfairly attacked and “Borked” the Justice, a much smarter and morally superior man than he ever was.
I also recall how in 1991, Kennedy launched another nasty political attack by leading the Senate investigation of the “1980 October Surprise” conspiracy theory in an attempt to discredit then President Bush during his reelection campaign, because the “People had a right to know”. Every so-called “expert” was invited to attack the President and in the end, no wrong-doing was found.
The “Lion of the Senate” often exhibited behaviors more fitting to a much less regal animal. Before we moan about the breakdown of comity and attempt to blame one side of the political aisle, let’s take off the rose-colored glasses and remember a little recent history!
I have no personal stake in defending Sentor Kennedy. I did hear that he had a 100% pro Israel record with AIPAC. I also saw the outpouring of affection for him by the people of Massachusetts who elected him again and again despite his well known personal failings. Part of what is wrong with public life is the blatant hypocrisy demanded of our elected leaders. They have to pretend to be moral icons and defenders of family values when ,in reality, many are far from it. Perhaps we should demand less hypocisy and more integrity. No one accused Kennedy of being bribed , he spoke what he honestly believed and forged real friendships with Republicans. Today, it is much harder due to the interest groups which give the vast sums neeeded for campaigns but demand fealty to a narrow agenda with little if any room for compromise. That is a major flaw in our system of government.
Regarding Borke, you know more than I do. My feeling is that he was not adequately defended by the party that nominated him, they let him swing in the wind. He also was oblivious to the effect his honest answers would have on the committee. He must have been very much an absolutist who didn’t understand practical politics. That is why nobody answers questions any more at these hearings, that is a result of Borke.
Yes, he was a solid, reliable friend of Israel, despite his father’s documented rabid anti-semitism. However, it’s not hypocrisy to hold a Senator to minimum standards so that he not allow an innocent girl to drown in his car, not treat young women as objects and not spend so much of his life inebriated. Yeah, I know, he had a difficult upbringing and we shouldn’t judge him.
As for his comments on Justice Bork, here’s what the paragon of Senatorial morality had to say when leading the charge against him:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”
How does one reconcile his supposed care for the downtrodden with the awful way he could treat those below his station in life? I guess like others of his political persuasion, he loved the masses and hated the people.
Was Ted Kennedy really that pro-Israel? I never knew that. I know his socialist agenda was bad for America, plus he had no moral right to escape what he did to Mary Jo Kopechne. Still, the pro-Israel part does intrigue me.
Raymond, rather than ignore your remarks , I will give them a respectful response. How do you know that “socialism” is bad. Which government program would you abolish? Social Security, Aid For dependent Children, HUD, WIC, Food Stamps, Medicare and Medicaid, how about child welfare laws. Should we really allow children to work 12 hours a day in sweat shops with locked doors to prevent their escaping in case of a fire. If the agenda of anything you don’t like is socialism, then you would have to turn back the clock to before President Roosevelt (Teddy). Everything good about this country has been decried as socialism. The world liberal has been made into a curse. Perhaps you also side with those who voted against civil rights for minorities and voting rights. Maybe we should return to the robber baron age before labor unions and minimum wage. in the current health care debate, the forces of big business are at work lieing to the American people. If you think socialized medicine is bad, what do you think HMO medicine is, a bunch of bureaucrats denying medical care to make a buck for the bosses, why is that better than government workers who don’t stand to gain from denying care. Ask doctors how messed up our medical system is, how much money is wasted and how many people are denied care because of the profit motive of insurance companies. Government is not the enemy and democracy will triumph inthe end.
Kennedy was actually pro-Israel, despite the fact that most liberals have been increasingly anti-Israel since 1967 when Israel stopped being viewed as the underdog. Perhaps he believed it was the only way to avoid the “family curse” that left his siblings dead before their time.
L. Oberstein: Everything good about this country has been decried as socialism.
Ori: You may disagree with me on the second amendment, but I assume you like the first as much as I do. When was it decried as socialism? Or the abolition of slavery? Or any of the myriad charities that help people without the authority to tax? Or the medical research by pharmaceuticals that costs an arm and a leg, but that saves people’s arms and legs?
I’m not sure if this is a good place to argue about government run health care. Moderators, would that be OK, or too far off topic?
[Editor – Ori is correct]