As promised, here is the last Sotomayor post in my discussion with Jim Antle. Concerning Jim’s remark that we have begun repeating ourselves, I agree that it does seem as if we have spent much of the time talking past each other. It is almost as if our perspectives were informed by sufficiently different experiences that shape how we analyze and judge the very same materials and facts. Acknowledging this as a real factor in judgment does not make one a believer in things called Antle Logic and Larison Logic. It also doesn’t mean that there is not an interpretation that is more valid than another–not all frameworks are equal. One reading does do more justice to the text than the other, but it seems that consensus is unreachable at this point. From each perspective, the correct interpretation seems obvious, and it is mystifying to each one why the other person cannot see it. Meanwhile, the pitfalls and dangers of the distorting effects of the other’s framework are only too clear. Jim is wary of a breakdown of a certain universal rationality, and therefore finds in Sotyomayor’s remarks a defense of “a specifically Latino way of judging.” I tend to see far less danger arising from a synthesis of the particular and the universal, and so I do not detect any hint that she has posited the existence of “a specifically Latino way of judging” in the way that Jim seems to mean it.
She has said that her background informs her perspective, which seems like a commonplace observation. She described it using racial and gender categories, which is what makes people on the right nervous because they are wary of how these categories have been employed by people on the left over the last thirty years, but her remarks were actually unobjectionable. The overreaction to her statements mirrors almost perfectly the hysteria surrounding some of McCain’s campaign commercials last summer. Back then, it was liberals who were imagining racist tropes and symbolism where none existed, because they were convinced that the GOP simply had to be using them against a presidential nominee with Obama’s background. Conservatives who have been berating Sotomayor over this speech are making arguments that really are as unfounded as those made against those commercials last year.
A more important factor, then, is that Jim and I seem to be arguing in two very different frameworks, which is a problem I have mentioned before in connection with the debate over the relationship of doubt and faith. Once again, here is Fr. Behr discussing the Arian controversy:
This is an important point: at stake are different paradigms, within which doctrinal formulations take flesh. The similarity of terms and expressions, yet difference of paradigm or imaginative framework, explains why most of the figures in the fourth century seem to be talking past each other, endlessly repeating the same point yet perennially perplexed as to why their opponents simply don’t get it.
I imagine that Jim and I are equally perplexed by the other’s argument for this reason. The comparison is not exact, but I think it might be useful for thinking about significantly different structures of thought that can emerge within a religious or ethnic group, to say nothing of different structures that can develop between them. This can be understood entirely at the level of culture rather than nature. Despite our many points of agreement on politics and policy, I keep getting the impression that Jim and I aren’t just reading a few statements in different ways, but that we are pitting significantly different frameworks against one another and so we inevitably end up going round in circles. This becomes very frustrating for everyone in the debate. Julian Sanchez has more bluntly summed up his frustration:
For one, it is basically impossible for me to believe that anyone with two functioning brain cells could read the “wise Latina” speech in full and find the notion that it’s “racist” anything but laughable.
As understandable as Sanchez’s anger may be, this is not entirely fair. Given what Sanchez sees as manifestly unfair treatment of Sotomayor, he may not be terribly concerned about this, but it is too easy to write off her critics so quickly. On this question, they are clearly wrong, but again the problem is that it is not at all clear for those working from their assumptions. Ironically, even though the very intractable nature of the debate confirms Sotomayor’s point about different backgrounds and perspectives inevitably informing judgment (much as Jeffrey Lord’s autobiographical account explains why he interprets Sotomayor’s remarks so wrongly), the truth of her observation seems to guarantee that her critics will continue to find deeply offensive what is quite unobjectionable. Evidently, intelligent people can and do read the speech and take this interpretation seriously, and they in turn find the failure to see the merit in reading it this way to be “bizarre.” This seems baffling to Sanchez, as it does to me. I doubt it will work, but I will make one more attempt to discuss this in a way that will not baffle Jim.
Decentralists like to talk about place, and they usually prefer local control over as many things as possible. What does this have to do with anything? After all, why do I keep bringing up references to decentralism in a debate over a Supreme Court nominee? It is certainly not because I think that Sotomayor has any significant enthusiasm for the Tenth Amendment, but because those who are interested in decentralism and localism have no reason to employ universalist assumptions that one’s background and history are and ought to be irrelevant in judgment. If Sotomayor is invoking heritage and experience for different purposes than they would and if she is operating in a very different tradition, that should not prompt them to deplore such statements. I don’t assume for a moment that Sotomayor has any sympathy for decentralism (she is, after all, a federal judge), but those who do have sympathy for it shouldn’t want to employ arguments that, if accepted, would significantly weaken the case for decentralism.
What is one of the main arguments in favor of decentralization and local control? Of course, distributing and spreading out power to prevent it from becoming concentrated and dangerous are important, but one of the practical arguments in its favor is that locals understand their own needs and problems better than more distant officials. They are more likely to craft rules that accommodate conditions in their area and might be poorly suited elsewhere. Familiarity with local conditions informs judgments and decisions, and ensures that the quality of those decisions more often than not will be better than those made by people unfamiliar with those conditions. Even our hawkish friends can appreciate the appeal of this–these are those famous “conditions on the ground” to which Presidents always pay ritual homage. Somehow, what counts as necessary and vital for good decision-making in every other sphere of government is now not merely of no value in judging, but it has somehow become a serious liability.
Someone will say, “Yes, but a lot of what you’re talking about has to do with self-government and that’s part of the political process. Judging is different.” Indeed, judging is different, but not absolutely. If anything, the judges are under an even greater obligation to attend to both what the law requires and the specific circumstances of each case. That is, they should make themselves as familiar as possble with the conditions and factors that led to the case before them. How is it anything other than a benefit to have judges who could offer some partial insight into elements of the case that might remain opaque or hidden from the others because of their different experiences and perspectives?