David Brooks writes, “As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.”
Without wishing to take issue with the abstract point Kahan is making–surely it’s true that different judges come to different conclusions because they assign different weights to the various facts involved–couldn’t a third judge “perceive” that the Constitution, properly interpreted, doesn’t actually empower him to balance, or say anything at all about, the schools’ concerns about security and the girl’s psychic needs? And wouldn’t Brooks’s observations about judicial psychology apply a lot less to a justice with that mental “model”?
Michelle Cottle, riffing on Brooks’s column, writes, “What’s troubling me about the Sotomayor critics rambling on with such arch intellectual piety about how a jurists’ emotions and experiences shouldn’t inform her interpretations of the law isn’t that I suspect these grumblers are racist or sexist or hard-hearted; it’s that they really seem to believe that certain people (themselves included, of course) operate largely free from such messy, imprecise, irrational influences.” This is a distortion of the argument. Conservatives have not been denying that they are prone to these influences. They have been denying that these influences should be given free rein.