Two Kinds of Justice

Judge Sonia Sotomayor doesn't appear to be as liberal as most mainstream Republicans make her out to be. The point of public discourse about her views, as well as the final moment of Senate confirmation hearings, ought to be a learning experience more than a political spat. In fact, that's what politics itself really ought to be: a dialogue, in the noblest sense, where conflicting parties work together to find a common end.

The problem, though, is the way American parties and interests have largely accepted that their goal is achieved historically ― that the divide between today's liberals and conservatives can work itself out toward some end in the future. At that point, it is assumed, politics will cease, and we will transition into a purer, more tranquil, more consensus-driven world of "policy-making."

But that will never be the case, because human nature will not let it. Political consensus only comes in brief moments ― when one side accepts the candidate he did not vote for, or, on a deeper level, when one set of opinions sees something valuable in another set ― perhaps its own missing piece, which brings both closer to the truth. To think politics means anything else, no matter how dreamy the goal, will call for some kind of coercive tactic to ensure that all find themselves in agreement.

Charles Krauthammer has a great piece on what we're missing in the upcoming Senate confirmation hearing for the next Justice on the Supreme Court.

What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks. No "temperament" insinuations. Nothing ad hominem. The argument should be elevated, respectful and entirely about judicial philosophy.

It is, of course, a judicial philosophy that seems to subscribe to the former view of politics described above ― which, we should see, is not political at all. On the race-based preferences question, Judge Sotomayor subscribes to a view of evolutionary justice. It is not a matter of setting things right, according to some universal standard of right; it is instead a matter of compensating for past wrongs according to the changing spirit of the times.

This view of justice depends entirely on the "preferred class" approach, and makes affirmative action policies essential. The Supreme Court never supported it on that basis, of course. It always maintained the "diversity" standard, and often deferred to the expertise of universities and companies who insisted that such diversity was essential in reaching its goals.

But according to Justice Thurgood Marshall, there was no ignoring the "legacy of unequal treatment." Such a troubling history required the Court to

permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America... I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible.

Marshall might have been quite right about this. Though we might have a "colorblind Constitution," maybe we can't get there until we look clearly and directly at the lingering problems of race, and correct them accordingly. And, in practice, this means race-based preferences and quotas in our major institutions ― the only way we could ever compensate for past wrongs. Only then could begin to discuss justice meaningfully.

Just how long or to what degree public institutions should favor one group over another, however, has never been certain. Justice Sandra O'Connor recognized in 2003 that

race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.

Justice O'Connor gave us her coin-toss description of that end-point: Since the policies had been around for about 25 years, she said, then it might take another 25 for them to reach their goal. But stay tuned.

Indeed, if the Court is going to lay down this rule, there is only one conceivable institution that can declare when we have arrived at a condition of equality, how long it will take, and how bluntly discriminatory the policies should be. That institution is the Court itself.

It is the classic problem of progressivism: how do we know where progress is going, and when we've arrived? More importantly, who will decide, and on what basis? For Judge Sotomayor, it will be based on one thing:

on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge. They perfectly reflect the Democrats' enthrallment with identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.

That is the essential thing about judicial empathy: it is not so much a judge's ability to connect with people, their struggles, their hopes their fears, etc. It is instead that person's sensitivity to where the movement of history is going, and what sorts of public policies will get us there ― no matter what the human cost. This inevitably means having tremendous empathy for the interest group one chooses to have empathy for.

Empathy is a vital virtue to be exercised in private life ― through charity, respect and lovingkindness ― and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.

The place for empathy is, of course, in a system of representation ― and it operates best in the institution with the word "Representatives" stamped right on it ― the House, where all officials are elected by the people precisely because of their empathy, however narrow that empathy might be. Personally, I do not doubt for a moment Sotomayor's claim, 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.

More importantly, though, I think James Madison would have understood it just as well. But he would have seen the value of the Latina experience in light of an important fact, which I do not believe the Obama Adminstration or Judge Sotomayor have given the slightest attention. It is the fact that all people, regardless of race or class, are by nature narrow-minded, and primarily aware of their own interests and the needs and concerns of those closest to them, or most like themselves. The purpose of government is not to bank on the ability of people to become so broad-minded that their hearts could be their only guides; it was instead the realization that the political process itself, at its very best, could pry their minds open ― to "enlarge the public views," as he put it.

The craft of law, though, at least in the classic sense, is supposed to do much the same thing for a judge. Lawyers still have empathy, but they learn to see how justice is something much broader than their emotional inclinations and personal experiences, no matter how big-hearted a judge might be. It was the realization that morality and the public good are indeed dependent on reason, not emotion; that even the noblest and purest emotions of pity and compassion could be terribly misguided. According to Alexander Hamilton, this came from

making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

The assumption today is that there really are some people who do not suffer from the "depravity of human nature." Holding the correct theories and political positions, we tend to think, makes someone inherently good ― meaning every opinion and every whim that person might have is good as well. Justice, accordingly, is not rooted in any universally understood precepts of fairness, but in whatever the enlightened one happens to believe.

I do not expect Sotomayor to be a very radial justice on the Supreme Court, certainly no more than Justice Souter was. But I do expect the social attitudes and political trends to get worse until we make them better.