Who We Are, and What We See
| July 15, 2009
The author, a psychologist/psychoanalyst, explains how Judge Sonia Sotomayor is naturally informed by her gender and ethnicity as she performs her duties on the bench.
When I was in psychoanalytic training, a colleague mentioned to me a female patient who, he said, frequently saw men exposing themselves to her on the subway. I commented that “flashers” were not uncommon on the subway, to which he scoffed, “I’ve never seen a flasher on the subway!” My curiosity was piqued. I asked male and female friends and colleagues whether they’d seen subway flashers; not surprisingly, none of the men and all of the women had.
I bring this anecdote up to illustrate the fact that what we see is determined by who we are; that the world is perceived differently, though not necessarily incorrectly, by our own experience of it. This is particularly relevant right now, when questions about whether Supreme Court Justice nominee Sonia Sotomayor will let her gender and ethnicity inform her thinking on the bench. According to much scientific and philosophical thought and theory, it would be impossible for her, or, for that matter, anyone else, not to.
In The Structure of Scientific Revolutions (1962), Thomas Kuhn posits that every society has an underlying paradigm that pervades every aspect of a culture—its science, aesthetics, politics, social structure, literature, even its forms of aberrancy. Scientists try to fit nature or data into the boxes that the paradigm supplies. Even in the hard sciences, which almost define our notion of objectivity, what we study and discover is determined by what we see, and what we see is dependent on our paradigm. Our paradigm prepares us for what we are going to see, what areas are to be investigated and how we will interpret what we find upon investigation.
Judge Sotomayor must, by virtue of her experience as a woman and as a Latina, bring a different, though not necessarily a more “empathic” or “emotional” perspective to her judicial work. This is no more the case than it would be for, say, Justice Alito, who comes from the experience of a white, Catholic male of Italian background. Judge Sotomayor is the product of a different paradigm, and would be expected to see aspects of an issue that the majority of the court might not see. This does not mean that she would necessarily be voting in favor of women or minorities; simply that she might add another voice to be considered, in the same way that I did in discussion with my male colleague, who didn’t “see” flashers on the subway, not because he was sexist, but because being “flashed” was not part of his experience.
I am reminded of Talmudic scholars who, over thousands of years have read, discussed, interpreted and reinterpreted the laws that they believe have been handed down to them. The laws, themselves, have stayed the same. The words have not changed. Yet, the scholars of each new era, as a function of experience rooted in their own time and culture, add depth and new meaning to them. Such is the greatness, too, of our Constitution. It has given us a very specific blueprint for a democracy, yet has left room for interpretation over the ensuing centuries. That interpretation has been shaped by the questions and voices of justices, all of whom have been a part of the time and place in which they lived.
The statement in the Bill of Rights that “All men are created equal” originally referred only to white men, because they were the ones who were considered, at that time, to be “men.” In 1870, when the 15th Amendment was ratified, culture and judgments had changed enough to view African American men as “men.” Still later, with the ratification of the 19th Amendment in 1920, women were seen as “men” under the Constitution. The wording had not changed (though I, for one, wish it would), but the interpretation of the wording had changed.
There is no doubt that Judge Sotomayor will bring a new voice and perspective to the Supreme Court, if Congress approves her nomination. In a democracy such as ours, in which more than half of the citizens are women, and in which minority populations are growing, that voice and perspective would seem to be an important one in the makeup of the Court.