From last night’s All Things Considered, wherein Robert Siegel tried to kill me by interviewing Chuck Grassley on Sotomayor:
Grassley:…[U]nder our system of checks and balances system of government it’s very important that judges judge, in other words interpret law, and that legislators make law.
Siegel:But this is what Justice Samuel Alito said at his confirmation hearing, before the very committee–he said, and I quote, ‘When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender, and I do take that into account.’By your standard, that would be disqualifying.He should have said instead, ‘My background, my family counts for nothing.’
Grassley:Uh, that’s absolutely right, because I expect, a person who’s a judge to look at the four corners of the law, and make decisions based upon what that law says.Now, if it isn’t clear, then of course they got a right to go beyond just the words of the law, to court debate and to other courts and to the history behind the bill.But here’s, I think we’re–
Siegel:But you didn’t vote against Justice Alito’s confirmation.
Grassley:No, I didn’t.And uh, let’s put it this way–she was very positive, in saying today that fidelity for the law is going to be her benchmark.The extent to which she doesn’t distract from that over the next three days is going to help her standing with members of the committee, particularly Republican members of the committee.
Later, in an exchange about Stevens:
Siegel:Let me tell you something about Stevens.I want to ask you a question about that justice in particular and about this notion of empathy.His father, as you may know, was wrongly convicted of embezzlement when Stevens was a young man, and then he was vindicated.Wouldn’t an experience like that make a person who sits on the bench think differently about the fallibility of the criminal justice system than another judge might?Don’t our individual experiences in some way color the way we would answer a supposedly objective question?
Grassley:If I were Justice Stevens, I wouldn’t even have to use the example of my own father.All I’d have to do is use an example of when justice has not been given to an individual that deserves justice.And that happens in our society.And when there’s an injustice, that ought to be corrected. [snip] Justice Stevens could render that sort of justice regardless of whether his dad had a bad experience or not.
Okay, so Robert Siegel gets a cookie for at least posing a difficult pair of questions to Grassley. Too bad he let him off the hook. (I nearly drove off the road when I heard the “No, I didn’t vote against Alito, and let me quickly change the subject” bit. Grrrr.)
But what really prompted me to write this post is that the whole empathy/objectivity thing is making me crazy. I do a introductory thing in all my classes about historians and how we study history. The objectivity debate has been a contentious one in history circles for years. I tell my students that I’m from the wussy middle in the debate. While I believe that objectivity should be a goal, we need to recognize that it is, because of human nature, a completely unattainable goal. You can’t take the historian out of the equation when dealing with the interpretation of history–that’s why we have 8 million books about Napoleon and Caesar and the Civil War and everything else. If there were such a thing as truly objective history, there’s just be one book about each subject.
The same is true in the judicial system, at least to a certain extent. While I’d like to think judges would do their best to be objective, I know they can’t–they’re human (except for Scalia. And Thomas.). They’re going to each bring their own personal interpretation of the letter and spirit of any given law to their bench. So I find the whole empathy debate really stupid. We are all, as Siegel pointed out, and Grassley missed, shaped by our experiences. We can’t avoid it.
Frankly, I find Sotomayor’s comments about her background informing her decisionmaking on the bench refreshingly honest. I’d much rather have a person on the Supreme Court who recognizes where her biases may come in to play (sometimes appropriately) and is up front about that than somebody who is either in denial or lying.