In the confirmation hearings of Judge Sonia Sotomayor, the issue of bias was thrown around quite a bit - particularly by Republicans who wish to derail her nomination. Obviously, the judge's "wise Latina" remark gave them just the opening they were asking for, and she did a fair amount of walking back from that comment. But in the process, people like Senator Sessions have been peddling an over-simplified and unsophisticated notion of the meaning of the term "bias."
Eugene Robinson probably stated
best, the most obvious problem with the right's hysteria over the possibility of bias in the case of the first Latina nominee for the Supreme Court, saying that they are based on:
"a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things."
But the nature of that misconception, in and of itself, points to the other aspects of bias that are not being addressed by those on the right who treat Sotomayor with such skepticism. That is: it is a matter of perception. If some have trouble seeing the perspective of a white man as being anything but neutral, it is because so much of what makes up our view of the world, are not consciously accessible to us. They form the background, against which the foreground is perceived.
During the Sotomayor hearings, Republicans senators were obsessed with the imaginary icon of the perfect judge, able to will himself to set aside his preconceptions and prejudices in search of the objective truth. Of course, it goes without saying that this Platonic judge will have total access to all his preconceptions and prejudices, and total control over them. What Sotomayor tried to point out throughout the hearings, is that each judge, with their unique experiences and background, has access to different facts, by virtue of that experience. Facts they haven't experienced may be invisible to them - such as a woman's experience of pregnancy, or a minority's experience in trying to catch a cab. This is not something even the most earnest judge would have awareness of, muchless control over. Thus, the argument for diversity, where a variety of experieces makes a greater variety of facts and experiences, available.
Social cognition deals in organized bundles of information, known as "schemas." The best known example of a schema is a stereotype. While many of us strive to avoid the prejudice that ethnic and gender stereotyping leads to, it is difficult to go through life without typologies of some kind in our heads. Clearly, a diverse court would have a diversity of sterotypes.
The tendency to sterotype can combine with other errors, such as: the confirmation bias
, where people favor evidence that confirms their pre-existing hypotheses; the actor-observer bias
, in which people over-emphasis personality traits vs. situational influences, in explaining the behavior of others; and the just world phenomenon
, which leads people to believe that others get what they deserve.
All of these universal human tendencies are difficult to overcome, regardless of one's ethnic background and will to be objective. The Republican idea of the neutral, judge, who somehow escapes having a background of life experiences and biases, is not based in reality. Rather than assuming that those who share our invisible schemas are a blank slate, we should strive for justices with a variety of backgrounds.
Amy Fried applies her Ph.D. in Organizational Behavior to writing and activism on church-state separation, feminism, reproductive rights, corruption, media and veganism.