Senator Sessions of Alabama is concerned that Judge Sotomayor, if confirmed as a Supreme Court justice, might determine cases according to ideological or ethnic prejudices. He confesses his suspicions in an op-ed piece that appeared in the Albany paper this morning -- before he had an opportunity to ask the judge any questions under oath. This isn't the first time Sessions, a Republican, has expressed his reservations. Hasn't he announced his own prejudices in advance of a fair hearing? Isn't he guilty of exactly the offense he accuses Sotomayor of? Could he be more guilty?
His complaint focuses on the usual quotations that seem to identify Sotomayor as a judge who will decide certain cases according to ethnic solidarities or pure feelings grounded in personal experience. This prospect troubles Sessions, who frets as if nothing like this had ever happened in the United States before. He paints a heartwarming word picture of the goddess of justice, whose dedication to the principle of "equal justice under law" is illustrated by the blindfold she wears. Since I presume Sessions to be a Christian, probably a conservative one, I'm surprised to find him guilty of anthropomorphism bordering on idolatry. Justice, he ought to recall, is not literally a woman wearing a blindfold. Nor need justice be "blind" in the same sense of the word in every single case that comes to a judge's attention. Dispute that point if you wish, but don't try to dispute that Sessions in his article is being, perhaps inadvertently, a little disingenuous. A historically illiterate person might read his comments and assume that Justice has been properly blind throughout American history until the dangerous moment when the President nominated Judge Sotomayor. Everyone should know better, and our judges themselves, presumably knowing better, cannot be as "blind" as Sessions might like when it comes to cases that pit the interests of a onetime-oppressed class against mere individuals.
What Sessions wants is an end to the compensatory period in American history, the time when the government has promoted members of minority groups once victimized by blatant, legal prejudice, often inevitably at the expense of individuals who believe themselves entitled by merit to advancement in a "fair" society. He isn't wrong to desire this. The point of "affirmative action" and other compensatory policies is to accustom all Americans to one another's presence in every sector of social life in order to dissolve prejudices. The ultimate goal isn't a permanent apportionment of jobs or other social benefits on a group basis, but the education of society to a point when everyone agrees that prejudice no longer exists and meritocracy can at last prevail. The tricky part has always been to determine when that moment has arrived. It's tricky as long as groups disagree. People like Sessions claim that the moment came some time ago, if they even conceive that compensatory measures were necessary. Some will say that the moment has come despite retaining prejudices. Some in groups that benefit from compensatory policies will say the moment has not come, or will not come for a long time, and some who say that will be prejudiced in turn. They don't or won't trust the majority group to judge them fairly, or they may have rejected a meritocratic concept of fairness altogether. Neither group has the right to unilaterally call for either an end or an indefinite extension of the compensatory period. That's one reason why a "balanced" court that reflects a variety of those dreaded life experiences is probably a good idea, and why those life experiences are at least sometimes relevant to deliberation.
As I wrote at the time of the nomination, the appeal to life experience is a double-edged sword. If we concede that life experiences enable judges to decide certain cases better than those with different experiences, it follows automatically that the same life experiences may lead the same judges to decide other cases wrongly. To ask why all-white Courts decided such cases as Dred Scott or Plessy v. Ferguson wrongly, by modern standards, is to answer the question at the same time. The remedy is not to ban whites from the Court, but to make sure that there's a balance of life-experiences while society continues its work of integration until we reach the point when we need racial balance no more than we now need the sectional balance that seemed necessary generations ago.