Sen. Cornyn's Daily Question for Judge Sotomayor - Question 7

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Sen. Cornyn's Daily Question for Judge Sotomayor - Question 7

How can a judge objectively apply the law if she believes there are multiple realities and multiple versions of the truth?

Explanation: In a speech published in 2002, Judge Sotomayor expressed a critical view of "objective stances" in law:

I accept the proposition that, as Judge [sic] Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow [sic] of Harvard Law School, states "there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging."

Judge Sotomayor's agreement with Professors Resnik and Minow raises the fair question of what Professors Resnik and Minow meant by their statements. The key idea seems to come from a 1987 article by Professor Minow called Justice Engendered, published at 101 Harv. L. Rev. 10 (1987). See also Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. Cal. L. Rev. 1877, 1905 (1988) (discussing Minow's article).

The following passage of Professor Minow's article, which appears at pages 68-70, seems to contain the key idea that Judge Sotomayor endorsed:

[D]iscussions of ‘individual choice' and ‘community consensus' cannot be taken at face value. Instead, these terms should spark inquiries into what conceptions of reality may be precluded or undermined by established social practices.

Strategies for exposing conceptions of reality that are treated as natural include searching out alternate views that have been ignored or suppressed, as well as engaging in persistent critiques of both minute and major exercises of power. Thus, theorists in many fields have attempted to identify suppressed cultures and voices that represent potential and actual points of resistance to dominant cultural forms. Although members of minority groups have historically felt an obligation to become conversant in the world view of the majority, they have also made an effort to preserve their own. Minority group members and their sympathizers alike celebrate these experiences in bilingualism and biculturalism as a strategy of resistance and as a method for exposing the workings of power.

Those who celebrate multiplicity, however, challenge the control of the dominant culture. The current political battle over establishing English as the official language is one example of dominant groups fighting back after minority groups challenged their dominance. Law, particularly as administered in the courts, provides apparent mechanisms for orchestrating competing points of view. With law as the battleground, we must ask: will courts reinforce the illusion of one reality, or devise ways to take minority perspectives seriously?

The difference dilemmas, disrobed, are not insoluble problems about neutrality and discretion, but are instead serious struggles over which versions of reality judges should embrace. Taking minority perspectives seriously calls for a process of dialogue in which the listener actually tries to reach beyond the assumption of one reality, one version of the truth. There is no neutrality, no escape from choice.

Judge Sotomayor's stated agreement with Professor Minow raises important questions about how she would approach the application of objective legal standards if she is confirmed to the Supreme Court. How would Judge Sotomayor resolve the claimed "serious struggles over which version of reality" she would embrace? What struggles over reality does Sotomayor envision? How would Judge Sotomayor resolve the tension she apparently sees between the reality of the "dominant culture" and the "alternate views that have been ignored or suppressed"? What do these words mean to Judge Sotomayor?

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