Nothing More Than Feelings

The controversy -- which hasn't really come to a head as yet -- over the nomination of Sonia "SoSo" Sotomayor for the upcoming Supreme slot boils down the the usual competing values -- "blind justice" vs. "empathy", AKA "the rule of law" vs. "judicial activism", AKA "equality under the law" vs. affirmative action, reparations, quotas, payback, "it's our turn", etc. etc. And the discussion is being limned as an eternally-recurring theme, predating, even, the founding of the Republic. Of course, the argument will never be settled simply because of the profound difference in premises, the one being that even if justice is not always blind, it ought to be, and the other being that even if justice is not always empathetic and "feeling", it ought to be. And there is simply no way of resolving these points of view, since they originate in sharply distinct logical and metaphysical worlds -- not unlike "pro-life" vs. "pro-choice".

But a more realistic -- if not outright cynical -- approach might be to ask, as a practical matter, whether justice ever _can_ be blind... and to what extent, if any, "blind" justice has existed in this country up to now. The cultural relativist will contend that what has always been paraded as blind justice is, in fact, white man's justice. It can also be pointed out that the very existence of a "black seat" and a "woman's seat" and a "Jewish seat" on the Supreme Court gives the game away -- clearly no one expects justice, as dispensed by the Supremes, to ever be completely objective, which is why a "balance" is needed. We are about to fill a "Hispanic seat" on the court, which makes me wonder how long until there will be a "GLBT seat", and heaven knows what else? We may wind up packing the court, a la FDR, just in order to accommodate all the certified victim groups who demand representation. But in any case, the gross politicization of Supreme Court seats tells us that, in fact, no one believes in "blind justice" anyway, and has not for quite a while (if ever). And in fact, I do not entirely disagree -- I think it can validly be argued that "justice" in the U.S., since the founding, has been, by and large, that of the white male, to which I would hasten to add "middle aged", "establishment", and "Protestant". Courts across the land, at all levels, have been blatantly prejudiced against the non-white, the young, and the non-Protestant... although the case when it comes to gender is a bit more ambiguous. But it can also be argued that minorities, because they have a bone to pick, are more likely, once in power, to adjudicate based on political considerations than are those who are already securely a part of the establishment. I don't know if this is true, but it bears consideration. When's the last time a "militant, activist white male" occupied a prominent place on a high court? But we can name any number of examples of militant blacks and women... and may be about to add a militant Hispanic to the list.

It also bears mentioning -- if only in an anthropological sense -- that our concept of "blind justice" is, in fact, foreign to most legal codes and courts around the globe. For many of them, prejudice is not only taken for granted, it is actually written into the law. And if you want to look into more traditional and/or "primitive" legal codes and courts (or the equivalent thereof), you can find plenty of examples of entire families or groups being held guilty for the offenses of an individual. But to people in that society, this is, in fact, the essence of justice. There are courts all over the world that enforce laws that are blantantly slanted in favor of a given race, ethnic group, creed, gender, sexual identification, and so on. People in those places don't look across the waters in envy at us, wishing that if only they had our enlightened system. They think of us as soft-headed fools! And why, for example, shouldn't the dominant, or conquering, tribe exact vengeance on its foes by any means available -- including the courts? This is certainly standard procedure in Africa, for instance, and no one thinks anything of it. (I mean, they do if they're on the losing side, but in principle, they have no objections, since they would do the exact same thing if they were in power.)

So what are those few Congressmen who are calling for a second look at Judge SoSo really saying? They claim they are all for the rule of law, blind justice, and so forth. But perhaps they're just for business as usual -- which is no more related to "justice" than any other approach. They make claims against things like affirmative action -- but a large percentage of the American populace considers affirmation action consistent with justice. The problem is that it's things like affirmative action, and quotas, and forced busing, et cetera, that have fatally corrupted our system of justice over many decades, and it's really too late to reverse it or correct it now, especially in the context of confirming a single justice. Reform of our legal system -- if even remotely possible -- has to begin not with judges, who are all too human, but with the laws and regulations that are, by and large, based on political rather then objective considerations. Our society has, very gradually, degenerated to the point where politics have almost completely displaced principles -- and that cannot be remedied by spotlighting one judge, even if she is herself a poster child for affirmative action. The rot did not start at the Supreme Court level; it was centered much more in the lawmaking bodies who were aided and abetted by the voters. If the first politicians who had voted for affirmative action or quotas had been thrown out of office in the very next election, I daresay the landscape in which Judge SoSo finds herself would be markedly different. In fact, chances are that there wouldn't even _be_ a Judge SoSo.