Wednesday, May 27, 2009


It's not hard to find commentators, pundits, politicians and others who are worried that Sonia Sotomayor, Obama's nominee for Supreme Court Justice, if confirmed, will be guided too much by her emotions. In fact, for illustrative purposes, let's confine our examples to statements made by men named John:

Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law. (John Yoo)

She must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences. (John Cornyn)

It will be important to determine if Judge Sotomayor will decide cases based on her own personal feelings and political views, or the bedrock rule of law. (John Thune)

Was this an issue for the last couple of guys nominated for the Supreme Court? Was it one of the talking points?

[sarcasm alert:]

Wouldn't it be great if we could have a big computer program to decide cases strictly on The Law? With a program, no one, not even a sensitive male judge, would be tempted to consult their feelings about an issue and we wouldn't have to worry about all these emotional females populating the Highest Court in the Land every decade or two, tossing aside the rule of law on a whim if it suits their (probably hysterical) feelings to do so.

As an FSP, I am of course always doing that with my own personal research. Despite decades of experience as a scientist, I'll be doing some research thing, and when it comes time to interpret the results, or make any big decision for that matter, I get all emotional and I forget all the bedrock rules of math and science, and I just go with whatever my emotions tell me to do at that exact moment. I really can't help it.

[/end sarcasm attempt]

Wouldn't it be great if vast numbers of people saw those stupid "her own personal feelings" talking points that various John et al.'s are spouting and thought "They must not have any substantive criticism if that's the only thing they can come up with."?


Ira J.A. said...

And plus which: John Yoo? A guy who's being investigated for war crimes ( for encouraging U.S. troops to torture human beings? I'm sure, however, that feelings didn't come into that series of awful decisions in the slightest (not that feelings ever don't play a role for anyone, of course, since they're part of the vertebrate deal--and a good thing, too). Yuck to the whole absurd affair.

- Ira

Anonymous said...

Thought the brains of males and females are different......

Is it sexist to speculate that females may be just a little more emotional than males?

Well: are females on avg. more emotional than males. (The avg. female vs. the avg. male.)

Not talking about Females with Ph.Ds......

Anonymous said...

"Wouldn't it be great if we could have a big computer program to decide cases strictly on The Law?"

and let's ask a woman write the program! but only a qualified one. with no "activist" background. with a great temperment.

John Vidale said...

Seems a legitimate argument - liberals ignore the constitution and innovate, conservatives try to stick with the laws as originally written a long time ago.

Both don't like the nominees from the other party - not from their legalistic attitudes, but from its results - opinions on equal rights, business, abortion, ... .

If the constitution were a much more liberal document, and activist legislators much more conservative, I can imagine everyone switching sides.

It's hard to get outraged at what is basically a political rather than sociological argument.

(Yet another argument from a John with which to disagree.)

Mad Hatter said...

The Johns forgot to express "concern" that she might burst into tears if Scalia is mean to her!

Unknown said...

Isn't it amazing that all coldly logical interpretations of the law support conservative ideologies?

The basic criticism of ANY judge Obama nominates will be that he/she/it will use the power of his/her/its position to take away all toys that the Rich White Male Conservatives have managed to accumulate.

The language that is being used to criticize Sotomayor is going to be couched in sexist and racist terms because it's really easy to disguise whining by dipping into the deep wells of sexism and racism also maintained by the same people.

It's like opposing universal health care on the grounds that illegal immigrants could then get free healthcare. It's a careful play that makes no sense ("Oh no! Thousands of people who illegally pay payroll taxes and can't file tax returns could possibly receive medical care! We must deny it to millions of Americans!") except that it taps into racist rhetoric. And all to serve the underlying argument of "Rich people deserve to keep all their money", which for some reason is a very unpopular argument.

What I think is a much more powerful victory is to dash the actual ideological arguments being made (the idea that Judges can somehow separate what they think is just from their interpretation of justice) than just pointing and calling someone sexist (not that sexism is a minor thing, but just that it's far too easy to say "well yeah he's sexist, but he has a point")

Anonymous said...

I think this time around you would have heard about any nominee's "feelings", because the President said he wanted "empathy" on the court.

So this is not, I think, a sexist reaction to Judge Sotomayor, but a partisan reaction to President Obama.

Anonymous said...

John V - it would be great if it were simply a "liberal versus conservative" issue. Maybe someday it will be. But I find it hard to imagine that if it were a male nominee, all of the John's would be worried about him votings his "emotions" rather than the law.

I'm sure that conservatives will find something to criticize in any liberal nominee, but I agree with FSP that this particular criticism is annoyingly gender-specific and unfounded. If they disagree with her record, they should just say, "Hey, I disagree with how she ruled on Case X, Y, and Z" not "she might rule based on her emotions."

E.D. said...

There are indeed people who are capable of not basing their decisions on their emotions.

They are called "psychopaths".

chall said...

Funny, it has never been a problem that certain men vote with their "knowledge" and their personal opinions. Although, of course, they call it "logic and sense" rather than feelings and stuff like it.


puck said...

@Anon 12:16 - oh, I *totally* see what you mean here. Yes, I definitely see males get more emotional than females, particularly in the workplace. It just seems that men - men in GENERAL, you understand, not Men with PhDs - are more emotional based on my ultra-scientific personal anecdotes and observations.

Why, just last week a man in my office got so angry when his program crashed that he threw his handful of pens onto the floor, swore loudly, and stomped out of the room! See, really, these Man Emotions being brought into the workplace just make me uncomfortable. Why couldn't he have just cried quietly at his desk for a couple of minutes like a Normal Person? Displaying his Man Emotions like that was Inappropriate and Unprofessional, and indeed makes me wonder if men really are well-suited to these difficult and emotionally stressful jobs such as computer programming.

I love men, don't get me wrong. I'm Not Sexist(TM)! We simply have to recognize that Men can't help it - their brains are Just Different, and it's really not their fault that they tend to be more controlled by their Man Emotions!

I wouldn't worry though; I'm sure the male justices will be able to keep their Man Emotions in check, even with Sonia Sotomayor around to challenge them. After all, they're Educated Men. Just as you point out that Females with PhDs aren't really *normal* females, we should remember that Educated Men aren't *really* normal men. You know, with those pesky Man Emotions.

Anonymous said...

I agree with you, and not with John(s). But, for me, I'm looking forward to someone on the court who thinks differently, and maybe even (gasp) does consult her emotions. Not to decide the case, but as added context for deciding a case. This, to me, is one of the many reasons why diversity in all disciplines is important.

John Vidale said...

Now that I've recovered from too much wine last night, my comment above seems irrelevant.

I have to agree with FSP that criticism of any woman for being too emotional without more compelling evidence than exists for Sotomayor is a misapplied stereotype, and is the kind of argument that should be challenged.

Janice said...

I'm with you on the annoyance, FSP. I'm positive that if President Obama had nominated a male with similar qualifications and track record, these concerns would be touching on the nominee's tendency to rule based on emotions.

Anonymous said...

Is it sexist to speculate that females may be just a little more emotional than males? I agree that females are, on average, more emotional than males. However, this may not make a difference to a Supreme Court justice, for two reasons. The first I illustrate with an example:

Scenario: my 7yo wails that he's hungry, soooo hungry, as we pass an ice cream kiosk:

My husband's response
thinks: Oh great! There he goes again!
says: When you get home, you can have an apple.

My response:
think: I hate when W cries! Does he do it on purpose? Did I spoil him? Maybe I'm a bad mother!
say: I'm sorry you're hungry. When you get home, you can have an apple.

You see, in the end, it doesn't matter that the two of us react differently--we come to the same decision in the end. And THE DECISION is what matters in a Supreme Court justice.

Reason 2: emotions tend to govern *immediate reactions*--given a decision that needs to be made about something a year in the future, it's easy to "get over" any immediate emotional reaction and choose correctly.

Anyone who knows anything about the Supreme Court knows that decisions are only made after an incredible amount of research and discussion. First the clerks do the research on a case (can take weeks) and report the findings to the justice...then the court hears oral arguments...then the justices meet privately and discuss the case...then, later, they vote. Decisions generally don't come out for several months after oral arguments are heard.

In other words, there's plenty of time for any woman (or man--men aren't immune to emotional reactions) to get over their emotions and choose logically.

Anonymous said...

MadHatter: Scalia is only mean to the lawyers who are arguing the case. (He's also the only judge of the nine who can make the whole courtroom erupt in laughter; if you've ever sat through oral argument, you'll know that this is quite a feat.) My sister was a SCOTUS law clerk--though not for Scalia--and she said he was actually quite nice in person. The true test of a judge's meanness is how he treats his law clerks...

Anonymous said...

To be fair, Obama did explicitly seek a judge who would have "empathy". It's possible that any judge he selected on that basis would have faced these kinds of accusations.

See very interesting article in the NYT by Stanley Fish on this topic.

Mad Hatter said...

@unlikelygrad: What I wrote was meant as a sarcastic comment on the stereotype of women as hypersensitive, overly emotional, and prone to crying at work. I did not intend to specifically impugn Scalia's character and probably should have said "if the other justices are mean to her" instead. And I completely agree that a test of someone's meanness is how they treat people over whom they have power or authority.

Roadnottaken said...

I like Sotomayor and hope she's confirmed. But, to be fair, she said a dumb thing once:

"The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences different choices than others. . . . Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . . . . I am not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, 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." At the same event, she also stated, "Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging." I actually agree with the statement, but politically speaking, it was a stupid thing to say and if she doesn't get confirmed she'll probably spend the rest of her life regretting her choice of the word 'better' which was indisputably impolitic. There's no such thing as an unbiased perspective, but judges probably shouldn't go around calling one perspective better than another.

Anonymous said...

This female science professor does not perceive sexism in the feelings comments. I jumped to the same conclusion myself (concern for ruling on feelings versus law) based on the press releases and AP articles. And heck, some of her quotes!

Straight out of the AP:
Obama, eager to begin putting his imprint on the court, beamed as he introduced Sotomayor as a judge who displays both an impressive mind and heart, a jurist who takes on cases with "an understanding of how the world works and how ordinary people live."

Anonymous said...

Puck, you're awesome.

Roadnottaken: at least she only said one stupid thing.

I think it's just ridiculous that people are even taking this tack. Every human being has emotions. Obviously she's got a pretty good handle on how to best deal with hers or else she wouldn't be in her current position.

Ms.PhD said...

I agree with FSP (and puck, that is fucking fantastic!). This is clearly old-school sexist bullshit. Nobody EVER accuses a man of being too emotional (but we would if we thought they would get a handle on it by our saying so!).

Several of the other things they've said have been equally offensive.

But I agree, Obama really effed it up by saying he wanted someone with "empathy." It's like he doesn't want her to be confirmed at all, using language like that for a female candidate. I mean, come on. You'd think he would know better... oh wait, no, he wouldn't.

Oh well, gotta make do with the President you've got, I guess.

Change said...

Puck: Good retort.

BR said...

For those thinking that Obama was doing something abnormal by seeking empathy in Judge Sotomayor, look no further than Bush the elder:

"He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

Also, in context the one Sotomayor quote that is being hashed over and over actually indicates that she is capable of introspection and realizes that she, like every other judge, has to be aware of their own biases due to their own life experience.

Had Obama's pick been a man, we'd be hearing about his extensive qualifications. Instead we hear snide comments about how Sotomayor can't keep her feelings in check.

Anonymous said...

Conservatives are concerned only with the law being applied in an impartial manner, without recourse to things like empathy or feelings. If a male nominee for the Supreme Court were to say something like, "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.", they would oppose him too, as I'm sure all Sotomayor opponents will agree.

amy said...

The VAST majority of violent crimes are committed by men, the vast majority of road rage is experienced by men, and men are much more likely in general to feel aggression, competitiveness, etc. That's why they're more likely to cause auto crashes. The vast majority of child molestation and adult rape is perpetrated by men. Domestic violence is more likely to be done by men. Does anybody really think women are worse at controlling their emotions than men are, or that men are less emotional than women? Give me an F'ing break.

Anonymous said...

male politicians are often praised for their personal characteristics, yet their female counterparts are bashed for them. (bashed by men I should further add). The fact that this is even the subject for outcry says more about critics than about Sotomayor (can we say, 'grasping at straws'?)