Postmodernism, Judicial Empathy, and the Bible

Law professor and Milton expert Stanley Fish changed my life one semester in 1995, when he co-taught my First Amendment class at Columbia Law School. By demolishing the liberal-modernist ideal of perspective-free knowledge, Fish showed me that I could commit my life to my nascent Christian beliefs in the absence of airtight intellectual proof. At the same time, his writings on legal interpretation convinced me that I didn’t need to seek another form of false certainty by ignoring the role of personal experience in how the Bible is read.

In a recent New York Times column on Judge Sonia Sotomayor’s Supreme Court nomination, Fish makes some important points about judicial “empathy” and multiculturalism that are, as usual, relevant to Biblical hermeneutics as well:

…[I]f a judge’s understanding of the nuts and bolts of the legal machinery is itself interpretive, the sympathies and allegiances she has will be in play from the very beginning of her consideration.

That is what Sotomayor’s critics are worried about. Sen. Jeff Sessions (R-Alabama) complains, “She seems willing to accept that a judge’s rulings may be influenced by the judge’s personal backgrounds or feelings.” But whether this is a matter of concern depends on just what Sotomayor is imagined to be accepting. Is she accepting an account of the way human beings invariably perform? Is she endorsing a psychology? Or is she accepting a view of how judging should be done? Is she endorsing a method? Is she being descriptive or prescriptive?

If Sotomayor is being prescriptive, if she is saying, “I will actively (as opposed to involuntarily) consult the influences that have shaped me at every point of decision,” she is announcing a method of judging that invites Sessions’s criticism.

But if she is being descriptive, if she is saying only that no one can completely divest herself of the experiences life has delivered or function as an actor without a history, she is announcing no method at all. She is merely acknowledging a truth (as she sees it) about the human condition: the influences Sessions laments are unavoidable, which means that no one can be faulted for viewing things from one or another of the limited perspectives to which we are all (differently) confined.

In fact – and this is what Sotomayor means when she talks about reaching a better conclusion than a white man who hasn’t lived her life – rather than distorting reality, perspectives illuminate it or at least that part of it they make manifest. It follows that no one perspective suffices to capture all aspects of reality and that, therefore, the presence in the interpretive arena of multiple perspectives is a good thing. In a given instance, the “Latina Judge” might reach a better decision not because she was better in some absolute, racial sense, but because she was better acquainted than her brethren with some aspects of the situation they were considering. (As many have observed in the context of the issue of gender differences, among the current justices, only Ruth Bader Ginsburg knows what it’s like to be a 13-year-old girl and might, by virtue of that knowledge, be better able to assess the impact on such a girl of a strip-search.)