Monday, June 1, 2009

Decision Making 101

Judge Sonia Sotomayor is lavishly experienced and spectacularly qualified to be a Supreme Court Justice. However, if King Solomon or Christ himself came back to earth and was nominated by President Obama, the General Opposition Party (GOP) would find something to criticize. They’ve been itching for a fight ever since Justice David Souter announced his retirement, and they’re not about to be deprived of it, regardless of how ridiculous their arguments may be.

Immediately after her nomination was announced, there were ludicrous accusations that Judge Sotomayor—a renowned scholar and Summa Cum Laude graduate of Princeton and Yale—was lacking in intelligence. Then this daughter of Puerto Rican immigrants was accused of racism. In ordinary circumstances, it shouldn’t be necessary to dignify such attacks by responding to them. However, for the sake of those who limit their news gathering to the radical right media, there were those who chose to set the record straight.

Mark Krikorian of National Review Online weighed in, whining about a report that the judge likes to have her name pronounced correctly. Then attempts were made to center attention on two out-of-context remarks she uttered in 2001 and 2005, respectively. Now that it seems unlikely the pundits will generate much outrage from those attacks, the major focus of the Party of No seems to be, for the moment, a point of philosophy: that Judge Sotomayor may have feelings and even—horrors!—empathy! God forbid that feelings could somehow creep into the deliberations of a justice!

No one who listens to the likes of Rush Limbaugh or Newt Gingrich is going to be swayed by mere logic and facts, but just for the record, here are a few relevant points:

First, in her 17 years of experience as a federal court judge, Sotomayor has earned a reputation of fairness and objectivity. She’s hardly likely to start now throwing out judicial precedent in favor of promoting her own personal agendas.

Secondly, the Supreme Court is and always has been composed of human beings. If total and complete, bloodless, passionless objectivity were desirable in justices, we should be working on a computer program that could parse every phrase in the constitution and every decision ever handed down by justices past and make truly impartial decisions, untainted by emotions of any kind. However, it could be argued that such a “court” was not at all what the Founding Fathers, in their infinite wisdom, had in mind.

Finally—and here’s the reason computer scientists have been stumped so far in their attempts to get computers to think like people—emotions are a necessary component for making reasonable, rational decisions. This fundamental fact of human nature is well known to psychologists and, for lay audiences, has been brilliantly explained in several best-selling books—notably, Decartes’ Error (1994), by Antonio Damasio, and How We Decide (2009), by Jonah Lehrer.

In Decartes’ Error, Damasio describes the plight of a patient called “Elliot” who, as a result of a devastating brain injury, could no longer experience emotions. He lacked the essential feedback system that lets us know (i.e., gives us feelings) about whether our conscious, rational thinking is on track or not. His life dissolved into chaos and dissolution, as he became utterly incapable of making good decisions of any kind. In How We Decide, Lehrer observes that even the great psychologist William James, writing in the late 1800s, understood that “the mind contained two distinct thinking systems, one that was rational and deliberate and another that was quick, effortless, and emotional. The key to making decisions, James said, was knowing when to rely on which system.”

Given her solid reputation for excellent decision making, it appears that Judge Sonia Sotomayor knows what part of her brain to use when. If only the same could be said for some of her most vociferous critics.


Idna said...

I have two problems with this nomination.

First, I hate the political racism/sexism that is a necessity these days in elections and political appointments. Instead of looking around for the BEST judge, it was a given that it had to be a woman and preferably a minority. (Obama's list was true to this prerequisite.) And as you say, King Solomon or Christ himself could have applied for the job and there's no way in hell they would have been nominated by Obama.

Even if she were "the best" person for the job, our silly quota system and identity politics leaves me pretty cynical of that.

My second problem is with her vision of empathy as lying at the heart of judicial decision-making. You seem to think that is a plus, I think it's grounds to disqualify her.

If she ends up on the Supreme Court, (as are the odds), she will have to take an oath that says: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich. . . . So help me God." Nowhere in that oath is there anything about being touchy-feely.

After a long explanation of what a great and experienced judge he was, how he was qualified to be on the Court, Obama voted against Chief Justice John Roberts because he found him deficient on the "empathy meter".
He picked Sotomayor having found her sufficient. I don't want a judge to play favorites! She is supposed to apply the LAW. The 14th Amendment to the Constitution, guarantees "equal protection of the laws" to all Americans.

Don't confuse Justice with Charity.

Her judgement in the Ricci case was a travesty! Even some of her fellow judges were appalled and wanted a "re-do". I believe she was not only wrong, but, yes, racist in that judgement.

Now ... about your furor over the GOP daring to question the wisdom the Great One's nominee. Were you at all interested in the questioning by Democrats of Bush's court nominees? Did you see any of that at the time?

They were BRUTAL! There are example after example of how mean spirited the Democrats got.

They made it personal to such a point that when that evil, bully Ted Kennedy verbally assaulted Sam Alito, his wife had to leave the room in tears.

So please spare me the outrage at the GOP.

Citizen Jane said...

Idna, my point is an observation about the human brain: people without empathy and good contact with their own emotions simply cannot make good, rational decisions. If you don't believe me, I highly recommend the two books I mentioned, which explain the process of decision making in detail.

Secondly, it's certainly pointless to play the "they did this so we get to do that" game. Past bad behavior by anyone, for any reason, does not excuse present bad behavior.

I will certainly concede that mutual respect and civility have all too often been lacking in the national discourse in this country. That's no reason not to start now.

The Tarquin said...

While I mostly agree with your broad points, (emotion is an important part of cognition, empathy is a necessary part of having a justice system rather than merely a legal system, etc.) I take umbrage at your messianic view of Judge Sotomayor. First of all, she published, in writing, and has defended publicly, several statements which are antithetical to equality.

The most well-publicized and admittedly the most troubling are the several comments (once in a 1994 speech, from which the following is excerpted and then again in an early-2000s article in Berkley's La Raza Law Journal) to the effect that "I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion."

She's even expanded these remarks to draw a further destinction specifically between Latinas and "white male" judges.

I submit that these racist and sexist statements (for really, how else can they be accurately described?) are fundamentally incompatible with the notions of equality and justice that this country holds. The people that we put on the highest court in the land must be chosen for their qualifications and character, not for accidents of their birth.

A justice system, in order to be fit to bear the name, must be blind to matters of race, gender, creed, sexual orientation, economic class, political leanings, etc. Further more it must be blind not only with regards to the treatment of its plaintiffs and defendants, but also with regards to its lawyers and, yes, its judges.

Citizen Jane said...

This issue is old news, since even the most ignorant and venomous critics have failed to find any evidence of attitudes on the part of the judge that could fairly be called biased in any way. She's been involved in thousands of decisions, written hundreds of opinions, and has a solid reputation for basing decisions on the evidence.

Anyone who's ever uttered a public statement or written an opinion can be made to look bad by a few phrases taken out of context. The woman is qualified, for heaven's sake, and the only question left is how many people will continue to kick this issue around as though there is some point in being petty, critical, and negative.