Yesterday's confirmation hearing for SCOTUS nominee, Sonia Sotomayor was quite interesting, unlike the first day's session which was nothing more than senators grandstanding for their constituencies and putting them to sleep.
Judge Sotomayor is obviously intelligent, articulate, and well spoken. What intrigued me was the underlying philosophical narrative taking place on the posture one takes in reading and interpreting texts, in this case the law. Intepreting texts can be a complex thing. The strict constructionist/activist (deconstructionist) dichotomy makes for interesting soundbites on cable news, but it grossly oversimplifies the rigorous activity of understanding what has been written.
Modernity embraced the notion that it was possible for the individual to stand in a neutral place in order to make judgments, that is, one could throw off one's biases and prejudices, one's own personal narratives and convictions in order to stand in an objective place when making judgments. Thus, not only could a person read texts objectively, one should strive to do so. Those old enough to remember the Dragnet series on TV, will recall Sergeant Joe Friday's often remarked dictum, "Just give us the facts ma'am." Such a comment reflects the modern notion of objectivity, that it is possible to sort through all the clutter of an incident to get to the bare and raw truth.
Postmodernism rejects the objective/subjective distinction noting that it is impossible for one to throw off or transcend one's narrative, one's context in order to stand in a neutral place. It is impossible for someone just to give the facts. Each individual sees life through the lens of her or his experience; and each person brings that personal narrative to interpreting texts. Experience is a complex thing; to believe that it can simply be jettisoned is to embrace a fantasy.
What does this have to do with the current confirmation hearings? These are precisely the conflicting presumptions in tension at work on Capitol Hill. President Obama started the discussion when he put forth his belief that empathy was an important characteristic for a judge, obviously embracing a postmodern judicial philosophy. Those who have questioned the place of empathy in interpreting law have reflected the modern mindset of the necessity of neutrality in making judgments. What was extremely intriguing today was that Judge Sotomayor clearly backed away from this postmodern posture that was not only articulated by the president, but by the judge herself in many of the comments she made about about the superior judgment capabilities of a wise Latina. She has received some help in this narrative rewrite from Democrats on the Judiciary Committee, who are speaking of Judge Sotomayor's restrained judicial temperament and insisting that Chief Justice Roberts himself has created law in some of his judgments. So, Judge Sotomayor and Democrats are in effect rejecting the importance of empathy as a quality for a judge that the president who nominated her deems so important. It appears that what is being put forth is that one can hold a postmodern judicial philosophy while employing a modern judicial application of the law. My guess is that supporters of Sotomayor understand that the majority of the American public still accept the modern notion of objectivity and believe that the law can be read and decided from a neutral posture. But the tension between the modern and postmodern reading of texts continues because the two are irreconcilable, which is why Judge Sotomayor's reinterpretation of her own words are not convincing.
Some thoughts in conclusion: The modern objective/subjective distinction is simply false. It is impossible to understand anything from a neutral point of view. Those on the right who believe that such a posture is possible need to rethink their strict constructionist views. Do they really believe that judges with a conservative judicial philosophy read legal texts objectively? Is the suggestion here that objective readers will by necessity be conservative? If objectivity is possible, why do we need nine Supreme Court Justices of the United States? Wouldn't it be better to find just one objective judge and put her or him in the role?
On the other hand, while it is impossible for people to read texts objectively, and while it is true that every individual takes her or his own story (or better stories) into understanding the text, that does not mean that a text can be read in any way the individual reader desires. Texts were written in contexts as well, and their writers also had narratives and they are an indispensable consideration as well. Those on the left need to take this seriously and often they have not. That is not to say that it is an easy thing to know the context in question, but it should not be ignored. Anyone who has ever had their words twisted by someone else know that the context of what is uttered is as important as the context of how the words are understood. The reader of the text should not only understand and appreciate the positive impact one's own narrative has on interpreting texts, that person must also be willing to hold his or her narrative up to critical scrutiny because one's story can hinder hearing the text as well. In addition, it can be asked in postmodern fashion why empathy should be a favored character trait in a judge. What about conscientiousness? What about decisiveness? What about reading texts with artistic creativity? This is not to say that empathy is unimportant in a judge; it is to say that giving empathy priority says much about the personal narrative of President Obama. A future president's narrative may be quite different privileging another personality characteristic in a Supreme Court nominee.
The problem with strict constructionists is that they privilege the context of the text and neglect the context of the reader, while strict deconstructionists give priority to the context of the reader and neglect the narrative in which the text being interpreted was written. The former view the context of the text as some kind of golden era of understanding and the current narrative construals as a wandering away from the original narratival orthodoxy. The latter view the context of the text as primitive and out-of-date and the current context as superior and therefore determinative for and surpassing of what has gone before.
I have no illusions that this hermeneutical discussion will continue along the same lines, but perhaps we might further the discussion if we do not insist on judicial objectivity on the one hand and the privileging of certain narratives on the other, but on judges who in bringing their own narratives to the text understand how the wealth of their experiences can make them good and competent judges, and how a self-critical eye applied to their stories is also necessary as good and competent jurists. Perhaps, when it comes to those who interpret legal texts and decide the fate of plaintiffs and defendants, what we should be looking for is wisdom-- something the Bible deems as an indispensable quality for those who judge and lead.
HT to Scot McKnight whose comments on yesterday's hearings on Facebook was the motivation for writing this post.
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Cross-Posted at RedBlueChristian