Acknowledging bias isn't acting biased

Just after President Barack Obama nominated her to replace retiring Supreme Court Justice David Souter, statements came to light that seemed to call into question Judge Sonia Sotomayor's loyalty to judicial impartiality. As reported all over the media, the judge made the point while speaking in 2001 at UC Berkeley that the ethnicity and sex of a judge "may and will make a difference in our judging." No, she didn't say those factors should make a difference or it is a good thing they will, just that they will, in fact, make a difference. She also said that "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."

Of course, such an attitude about making decisions on the Supreme Court - or, indeed, on any court of law - is objectionable or would be if someone where to champion being seriously swayed that way in applying the law of the land. Yet, is it objectionable if someone states that one's sex or ethnicity is going to make a difference?

Many people in the fields studying human judgment hold this view. Recently, Dr. Gerd Gigerenzer, a guest speaker at Chapman University's research center in experimental economics, argued that bias is not only inescapable but is a good thing from the point of view of epistemological efficiency. This means that human beings often are better off when they rely on their biases as they judge the world and people. Part of why this may be so is that it's impossible to know all the relevant information pertaining to an issue, so relying on certain habits formed by experiences - which gave one a bias or prejudice, though not necessarily an irrational one - is unavoidable and valuable. It is a mistake to believe, this thesis suggests, that anyone's judgment can be totally impartial.

So when Judge Sotomayor tells us that someone with extensive experience of a culture and its people is probably more likely to reach more reliable - "better" - conclusions than someone utterly unfamiliar with them, she is saying something pretty simple and true. It may sound to some like excusing ethnic bias but it may not be.

And in the case of Judge Sotomayor, who in the very same talk at UC Berkeley law school also insisted that every effort should be made to leave one's personal (including political) preferences outside the courtroom, mentioning what appears to be a simple statement of fact should not be taken as a grievous professional fault.

A scholar I respect a great deal compared Judge Sotomayor's admission of bias with such an admission by other professionals whose skill is vital to the performance of their tasks. This scholar noted that if Judge Sotomayor were a brain surgeon or some other medical specialist, there would be no mention of empathy as a professional qualification.

Yet even in medicine we are often concerned with professionals' "bedside manner" - which boils down to people skills. I can personally testify that when a doctor treats a patient with total indifference, as if the patient were some kind of inanimate object on a conveyor belt instead of a human being with concerns and fears and such, this is not welcome, and I can only assume that in the evaluation of such a professional that manner would make a difference - though by no means substitute for professional skill, competence or excellence.

I am no expert on who is qualified to sit on the Supreme Court but I suspect that some of the reservations about Judge Sotomayor I have encountered in the media - voiced by various conservative commentators and even legal theorists - are something of a reach. I would be happier if the dispute focused on her legal proficiency and not on her perhaps poorly expressed concern about showing a deep understanding of people who come before the bench.