The Epistemology Behind this Quintessential Travesty of Justice

Yesterday President Obama nominated Sonia Sotomayor to the Supreme Court. That Obama would nominate such an individual could be inferred from this passage from Obama’s remarks on Justice Souter on May 1st:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving [at] just decisions and outcomes.

It is true that justice is not about abstract theory divorced from the facts of reality. Justice is about abstract theory based on the facts of reality. ‘Individual rights’ is part of an abstract theory based on the facts proving that man needs individual rights in order to survive, to “make a living,” as Obama puts it. Abstract theory on one side, and factual evidence on the other side, are not two pieces arrived at separately and then glued together—except perhaps in the law schools attended by the likes of Obama. Abstract theory must be induced from observation of the facts; it is an integration of the facts through a process of reason. Once armed with fact-based, abstract theory, a judge can apply the theory to new cases, to new facts.

But Obama seems to think that “abstract theory” is merely a set of arbitrary rules that you memorize in the ivory tower of law school, a set of rules like the rules of tic-tac-toe or checkers. With such a perverse notion of what ‘abstract theory’ is, no wonder people such as Obama feel that something more is needed. But instead of seeking to understand theory as a reasoned integration of facts, Obama attempts a balancing act between antagonistic elements: between memorized rules and ‘empathy’, between law-school dogma and personal whim.

(Update, 9:30 a.m. PDT: In Ayn Rand’s terms, we have here the false alternative of ‘intrinsicism’ vs. ‘subjectivism’, as opposed to the correct method of ‘objectivity’.)

Now let us see the result of Obama’s intellectually perverse balancing act. Here is a passage written by Obama’s nominee Sotomayor:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope 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.

Many in the media have already made much of the last sentence quoted above, and with obvious good reason. (None that I have seen, however, have asked what is so particularly rich about the experiences of a Latina woman.) And one could write an essay on the absurdity of the statement that there can never be a universal definition of wise. (Or see Ayn Rand on definitions in Introduction to Objectivist Epistemology.) But note the first sentence. The phrase “inherent physiological [or cultural] differences” means ‘race’. The first sentence states, among other things, that race and gender affect one’s judgment. This is the central tenet of racism. This is the idea behind statements such as “Black people cannot know right from wrong; it’s in their genes.”

This passage by Sotomayor was not impromptu and is certainly not taken out of context. It is part of a prepared lecture, later published in an academic journal, that is much more of the same. It was delivered at the University of California, Berkeley, School of Law and later published in the Berkeley La Raza Law Journal. By the way, ‘La Raza’ means ‘The Race’.

How, in this day and age, could the President of the United States nominate a quintessential racist to the Supreme Court? The short answer is that we are in this day and age. All forms of collectivism—socialism, fascism, Nazism, religious orthodoxy, racism—are on the ascendancy, because reason—the method that enables individuals to pursue and achieve their own happiness—is on the decline. Without reason to guide man’s actions, men are left to follow their emotions. They can follow their own emotions and be psychopaths; or they can follow the prevailing emotions of some group: the ‘people’, the home country, the religious order, the class, the labor union, the gender, the race.

That is why someone who makes ‘judgments’ based on ’empathy’—on emotions—is primed to be a racist as well.

This is why a man who ran for President on an emotion—hope—is also a racist: a former member of the Congressional Black Caucus, a long-time friend and close associate of Black Liberation Theologist Rev. Jeremiah Wright, a close friend of Rashid Khalidi, and a supporter of affirmative action.

For an example of how Sotomayor’s unthinking ‘empathy’ for some led to callous injustice toward others, see this excellent commentary by Charles Krauthammer regarding Sotormayor’s role in Ricci v. DeStefano, the case of white firefighters denied promotion because they are white.