Do the Personal Views and Values of Justices Affect Their Judicial Perspectives?

The rationale for opposing the confirmation of Judge Sotomayor has now become clear. Republican conservatives will argue that she will allow her personal views and values to affect her decision-making on the Court. That view begs the following questions:

Do background and experiences affect perceptions and understanding?
Do perceptions and understanding affect opinions and perspective?
Do opinions and perspectives affect decisions, even of judges?

The answer to all three questions is “certainly they do.” Over sixty years of scholarly research have time and again confirmed what we all know to be true: people are different and their different beliefs, understandings, and perceptions differ by sex, by age, by ethnicity, by economic status, by upbringing, by education, and any number of other characteristics that define their very essence. Does donning the judicial robe empower judges to somehow hold these factors in check? Of course not. What does allow judges and justices to attain the impartiality we expect of them is not the impossible task of checking one’s values and experiences at the door, but putting them into play along side the critical capacity to be open to arguments and claims from perspectives other than their own. Moreover, they must possess the intellect and the intellectual honesty to discern when the law requires them to rule in a way that is inconsistent with their personal preferences.

Much publicity has been accorded a reference by Justice O’Connor of an assertion by Oklahoma Justice Jeanne Coyne that a wise old man and a wise old woman would ultimately reach the same conclusion. O’Connor spoke in the context of seeking to free both men and women from traditional role limitations. Her use of Coyne’s statement was taken out of context, first by Sotomayor in thinking that O’Connor was suggesting that both men and women were capable of wise decisions (yes, they are) and that they would reach the same conclusion (no they wouldn’t) and then by Jeffrey Sessions and other Republicans taking it more literally to connote that one’s sex or gendered perspectives should not influence one’s perceptions and interpretations of the law (but they do). O’Connor herself, of course, is the perfect example of a wise old woman who consistently found herself in the middle of eight wise old justices who could not reach the same conclusion, her decision determining which four would be empowered to join her in saying how we must now interpret the law of the land.

Tom Coburn blew the Republicans’ cover. In questioning Sotomayor about the second amendment, he moved into whether individuals have the right to self-defense. Her response noted the intricacies in such a question, applying legal evasiveness to what the good doctor thought should be a rather straight-forward “Yes” response. Somewhat frustrated, he said, “what American people want to see is inside (you) and what your gut says.” Coburn thus acknowledged what the Republicans know, but what Sessions, Kyl, and others have denied during this hearing—that experiences and personal feelings do indeed affect judges’ legal thinking.

Cases before the Supreme Court usually offer two or more very compelling but competing legal arguments, and the one that prevails rarely involves an unambiguous application of the law or Constitution. Republicans know that, and they also know quite well that those justices and judges who have similar value systems to their own will more often than not come down on the side of the argument that produces their “correct” outcome. That’s why they have spent so much time in previous nominations seeking personal views of nominees on a variety of issues, but particularly abortion. Justices are more amenable to those arguments and interpretations consistent with their own belief system, itself a product of one’s experiences and personal values.

It would be a lot simpler world if both Democrats and Republicans, liberals and conservatives, would simply admit their preference to place on the Supreme Court those justices who they believe are likely to interpret the law consistent with the senators’ own belief systems. Republicans, however, gained the upper hand in the public relations war by creating a myth that conservative jurisprudence and philosophy are somehow consistent with judicial restraint and impartiality, that conservative justices will reach decisions only by referencing the textual meaning and original intent of the law and constitution. Liberal jurisprudence and philosophy, they argue, promote judicial activism, reaching for outcomes based solely on personal preferences, overruling the will of the people as expressed through the legislative branch to create judge-made law, and disregarding the original intent of the framers of the Constitution. The conservative definition of judicial activism used to include ignoring the principle of stare decisis, overruling previous decisions of the Court to impose one’s own agenda. They have backed off from that aspect of judicial activism because they seek a Court that will overrule previous decisions that have produced liberal outcomes.

There’s nothing wrong with opposing a nominee on the basis of her perceived liberal or conservative predilections. Senators may apply any criteria they wish. The president has done so, and any senator may follow suit. The Senate is an equal partner in this process; it just doesn’t get to pick the nominee. It can, however, force the president to pick a different one. So oppose Judge Sotomayor, but do so because you are at odds with her presumed liberal philosophy, not by creating a bogus claim that she will somehow allow her experiences, value system, and judicial philosophy to influence her decision making as if Justices Roberts, Scalia, Thomas, or Alito do not.

The best we can do is to appoint justices who will achieve impartiality through blending their legal expertise with the intellectual capacity to open-mindedly weigh alternative arguments and reach the judgment they believe best comports with the legal principles at issue. To that end we also benefit from a Court that brings different perspectives to bear on the issues at hand.