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Judging Diversity, Part I

A psychological take on our new Supreme Court nominee.

As an academic whose research focuses on 1) the effects of diversity on group decision-making and 2) psychological perspectives on the American legal system, there's a lot about the nomination of Sonia Sotomayor to the Supreme Court that piques my interest. Somewhat predictably, media coverage and political reaction to her selection has focused on issues of gender and race, bringing to the forefront of public discourse the intersection of contemporary debates surrounding diversity, judicial "activism," and personal identity.

Much of the immediate frenzy after Sotomayor's nomination took the form of the charge–levied vocally by Newt Gingrich and Rush Limbaugh–that the judge is a "racist" in light of her previous comments on the role race and gender play in judicial decision-making. In case you missed it, the precise quote at the center of the controversy was the following: "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."

Among other arguments, Gingrich suggested that had someone made the same type of comments about the better conclusions hopefully reached by White, male judges, he would have had to withdraw his nomination immediately. He's absolutely right.

With regard to race, gender, and many other social categories, the power dynamics that exist in our society are not symmetrical. Such a quotation would, unmistakably, have had a different feel coming from a White male judge about White maleness, much as Chris Rock can tell jokes about White people with an impunity that should inspire envy among his White colleagues.

So Gingrich is right–there are most certainly different standards for how comments are interpreted depending on a speaker's background. But as for the allegation that Sotomayor is a racist whose nomination should be withdrawn? That claim is hardly as persuasive.

When you actually read her entire speech, it becomes impossible to support the conclusion that Sotomayor is a racist or anything even close to an extremist. You may reasonably disagree with aspects or even the main thrust of what she has to say. But it is clearly a reasoned, rational, and respectful take on the role that she believes gender and race play in the legal system, not to mention in daily life more generally.

The quotation that Gingrich and Limbaugh zeroed in on comes near the end of the speech, as Sotomayor discusses the thorny issue of how a judge's personal experiences and identity affect performance on the bench. She respectfully disagrees with a quotation often attributed to former Justice Sandra Day O'Connor, namely that a wise old man and wise old woman will make the same decision in a case. I happen to think Sotomayor's take on judges and identity is the more accurate one, even if it's more controversial as well.

The party line among judges is that they simply rule on each case on its merits–that the decision they reach is an inevitable outcome based on the set of arguments presented to them. In other words, many a judge endorses the bottom-up idea of judicial decision-making: judges impartially weigh the information before them in reaching a decision on the higher-order question in front of them. That's the crux of the O'Connor aphorism.

But as I've blogged about before, decision-making is far more top-down than we'd like to think it is. That is, we often come to our ultimate conclusion first, and then we evaluate the supporting evidence in a manner that justifies the conclusion we preferred to begin with. Just look how sports fans react so differently when the steroids allegations start to buzz around the heads of players on their favorite team. I know it goes against legal protocol to suggest this, but judges are no different than the rest of us in this regard.

Take the now infamous–and to at least one current Justice, uncomfortable to discuss–Supreme Court decision in Bush v. Gore in 2000. Is it simply a coincidence that the five conservative-leaning Justices on that Court ruled in such a way as to benefit the Republican presidential candidate? And the four more liberal-minded Justices voted in the Democratic-friendly direction? Was there really something so compelling about this particular case that the conservative Justices were persuaded to go against their typical tendencies by intervening forcefully in a state matter? It seems to me that top-down decision-making is a far more compelling and parsimonious explanation for the 5-4 vote.

And that's just one example. You see, I read Sotomayor's speech and come to the conclusion that she's being honest and fairly realistic. Of course judges' past experiences and interactions color the way they see cases. To suggest otherwise, to claim that these individuals are able to rise above the subjective perception of the world that the rest of us rely on, is either naïve or disingenuous.

Sotomayor's argument, even if she doesn't spell it out quite this explicitly, is that all judges–not just Latinas, not just women, and not just her–are influenced by their pasts. From a psychological perspective, she's right on the money. Even if no one in Congress thought to ask, say, Justices Alito or Roberts during their confirmation hearings how White maleness influenced their decisions on the bench, such influence most certainly occurs in one shape or form. How could it not? Austere appearance and black robes aside, judges are human like the rest of us.

It's Sotomayor's acknowledgment of this humanity that stands at the heart of the controversy over her remarks. She never makes absolute claims that Latina judges are wiser or better than White male judges. Rather–to parse her words–she suggests that she hopes a wise Latina judge with a richness of experiences would often reach better conclusions than a White male who hasn't lived a life full of such diverse interactions and endeavors. She believes that exposure to a wide range of perspectives and people makes for a better judge. Justice O'Connor and others might argue otherwise, suggesting that such personal experiences are irrelevant. It's interesting and provocative fodder for debate.

In all honesty, though, to me the even more interesting question is how Sotomayor–if she is confirmed–might alter the group dynamics of the 9-person Court. Research in domains both legal and otherwise offers compelling evidence that a group's demographic composition can have a profound impact on the way it makes decisions. And analysis of actual judges' decisions reveal support for Sotomayor's assertion that the wise old male and female judges don't always see eye to eye. I'll explore these and other ideas in my next post...

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