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A False Gotcha

July 15th, 2009 · 2 Comments

Quinn  Hyler is very eager for someone to press Sonia Sotomayor about how differences in judging may stem from inherent physiological differences. I hate to disappoint him, but there’s a thoroughly boring answer he could have unearthed himself with about ten seconds of research. The line originates in a speech Sotomayor gave that was exclusively about gender and judging, with no mention of race or ethnicity. In the context of that speech, from which she plundered heavily for later talks, it’s pretty explicitly a biologized version of the whole Carol Gilligan “In a Different Voice” thesis about different paradigmatically male/female ways of processing information. I hope that floating the very possibility isn’t some sort of scandalous dealbreaker, as there’s a good deal of evidence that some version of the thesis is, you know, true.

Tags: Law · Science · Sexual Politics



2 responses so far ↓

  • 1 Cheerful Iconoclast // Jul 15, 2009 at 11:38 am

    What way does that cut, Julian? Gilligan’s theory is that men resolve moral questions by applying rules, while women resolve moral questions by emotion, intuition, feelings, relationships, etc.

    Gilligan-style feminists have an implicit normative claim: basically that the touchy-feely emotion-based decision-making is superior to to cold masculine use of reason. However, not all of us share this normative judgment. In fact, one could argue that a great deal of our success as a society is based upon this thing called “the rule of law.” We want judges to apply rules rather than emoting.

    If the Gilligan thesis is true, then it’s an argument for an all-male judiciary. Or at least a judiciary composed of men and relatively small number of women who think like men.

    It’s also worth noting that Sotomayer herself does not seem to have taken this line of defense. In answering questions, she has adopted the “I am just following the rules” approach that draws upon the traditional male rule-based conception of what a judge does. She has had an opportunity to defend Gilligan-style judicial reasoning, but she has not taken advantage of that opportunity.

  • 2 Dom // Jul 16, 2009 at 4:13 pm

    Here is what she said: “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.”

    “…gender and national origins …” Sounds like she is mentioning ethnicity and race to me.

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