Sotomayor's Reasoning - full version

 Sotomayor’s Reasoning

Linda Martín Alcoff, Hunter College/CUNY Graduate Center      

 

This article appeared in

Southern Journal of Philosophy, Vol. 48, No. 1 (March 2010): pp. 122-138 .

    

 

Those of us who work in the philosophical sub-field of epistemology, a field not generally associated with the center stage of political drama, should have been delighted this past summer to find that the major national debate throughout June and July was precisely focused on competing theories of justification. In every major news source the pundits and politicians were weighing in on the question of whether a wise Latina would judge differently on the bench. Justice Sotomayor was criticized on a number of grounds, as we saw, from both the left and the right, but the principal one that ignited the most controversy concerned her public disagreement with the statement by Justice Sandra Day O’Connor that a “wise old man and a wise old woman will reach the same conclusions in deciding cases.”[i]  Against this view, in a 2002 speech delivered to the Berkeley Law School, Sotomayor laid out a cogent argument that gender, race, and ethnicity do make a difference on the bench.[ii]

Sotomayor argued, in that speech, that one’s background experience makes a difference in one’s baseline knowledge, the sort of things one knows without having to look anything up. Although it is true that we can all pursue knowledge beyond our baseline, the fact is that this can take more time and effort than some are willing to commit. As Sotomayor put it, some people are limited “in their ability to understand the experiences of others” and “others simply do not care.” Perhaps most importantly, she claimed that personal experiences “affect the facts that judges choose to see.”  From these considerations she concluded that social identities do make a difference in judgment, and that a critical mass of women and people of color, or “enough … in enough cases, will make a difference in the process of judging” as it occurs across the nation.  

Sotomayor then qualified this claim in a number of ways. She noted that, of course, within every group there are many individual differences of perspective, and she pointed to Justice Clarence Thomas as a well known example. She argued that every judge must strive to reach beyond their baseline knowledge into unfamiliar areas, and by making this argument one can surmise that Sotomayor does not believe we are irremediably limited by our background knowledge and experience. And she explained that the empirical studies that are looking at whether different judges judge differently are just now beginning to be developed. Since there have been so few on the bench—she cited recent statistics reporting that only 1.5% of the federal judiciary is African American and only 1% is Latino---the data is as yet insufficient for reliable observations. But she based her claim that differences makes a difference on the bench not on the results of empirical studies but on epistemological arguments about the nature of judgment itself.

I would point out that the media and political controversy over Sotomayor’s Berkeley speech was conducted through a repetition of just one sentence, 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.” The epistemological arguments she used to amplify, support, and qualify this claim---arguments that are widely held, even a kind of commonsense---these arguments were not repeated or even aired at all, making her conclusion look more questionable and possibly based in a kind of identity essentialism.[iii]

For these remarks, readers will no doubt recall, Sonia Sotomayor was vilified from coast to coast, called an Anti-American racist, a reverse racist, a brown bigot, a member of an organization that was equivalent to the Ku Klux Klan, and someone who believed in “identity justice”. She was also referred to, in the mainstream news outlets, as a schoolmarm, a broad, a hispanic chick lady, a bully, and Rush Limbaugh announced that he was going to send her a vacuum cleaner so she could clean up after the Supreme Court meetings.[iv] There was so much controversy that in the actual confirmation hearings themselves, Sotomayor reneged on her Berkeley speech and repudiated her earlier views. She defined her judiciary philosophy as encapsulated in the dictum “fidelity to the law,” and she asserted that the role of the judge is “not to make law, but to apply the law.” One might contrast this with the view she espoused in the Berkeley speech, where she forthrightly supported the claim that judging is a form of power.

 I want to suggest that the storm of controversy that surrounded Sotomayor was not created simply because she was a Puerto Rican woman from the projects whom the Republicans could not imagine being qualified, but because she had dared to validate her identity as relevant to her qualifications for the court. In the Berkeley speech, she validated identity as a legitimate consideration in advancing democratic deliberation, and, in doing so, she transgressed the conventions of U.S. politics, which require regular espousals of epistemic platitudes about judging from a position of neutrality and color-blindness. And it was precisely this transgression that she was required to publicly renounce before she could secure a position on the Supreme Court.

The recent presidential election and subsequent controversies surrounding Obama have also brought to the center stage of public debate the issue of identity, specifically race and gender, in relationship to judgment. Did African Americans, or whites, or women, really vote on the basis of identity, in some cases voting entirely or primarily on the basis of identity? Shouldn't we just be voting on the issues, or on their record? Were those who voted for Obama because of his race any different than those who voted against him for the same reason?

            In reality, as we all know, the social identities of candidates and voters have always been relevant to the electoral process in the United States, as shown by the history of restrictions on suffrage and voter rights, and the gerrymandering of districts, and the present day debates over suffrage for convicted felons, homeless persons, and non-citizens. These groups have been said to be insufficiently rational to vote (or insufficiently moral, or undeserving of representation), but in actuality we know the real concern behind anti-suffrage arguments is always who such groups might vote for, given precisely the influence of their social identity and status on how they judge the issues under dispute in any election. Thus the restrictions on suffrage and ongoing attempts to exclude certain groups indicates a clear acceptance of the idea that one’s social identity makes a difference in the process of judgment.

What is also clear is that there is a history of differential perceptions of white and non-white political candidates: for many whites, only white candidates are trustworthy representatives of the general public, whereas nonwhite candidates are suspected of speaking only for a particular group. Just as intelligence and courage are often differentially attributed across group identities, so is the capacity to represent the universal. This indicates an assumed correlation between identities and representational capacity. It is true that some of the white support for white candidates may be because they are believed to be more likely to advance “white interests” (if there are such things). But white candidates are not generally subject to the same amount of  scrutiny in regard to their allegiance to particular communities: for example, white candidates who oppose affirmative action are not portrayed as representing only white interests but merely as conservatives.

I would suggest that the debate over the criterion of “empathy” that President Obama listed as one of his goals for a Supreme Court Justice also elicited concern because of its association with identity issues, in two respects. First, because empathy is associated with conventions of femininity, not masculinity, and second, because there was a concern about who, exactly, Sonia Sotomayor might feel empathy toward. Critics were vocal in particular about their concern that she would not feel empathy toward the white working class firefighters involved in the New Haven lawsuit against affirmative action. 

            In general, then, the presidential election, and the confirmation hearings for Sonia Sotomayor, reveal the rather dismal state of public discourse in the U.S. on the relationship of social identities to questions of judgment. On the one hand, the relationship between identity and judgment is widely accepted, as I’ve shown, and yet we require its persistent disavowal. This indicates, besides the obvious hypocrisy, an inadequate ability to formulate acceptable explanations of the relationship between identity and judgment, as well as inadequate understandings of what race, gender, and ethnicity are. But the problems here are not restricted to the non-academic, or lay public. Within the academy there has been an equal amount of confusion about how precisely we should understand the relationship of identity to scholarly inquiry, and the conventional view, or the view most people feel comfortable airing in public, is the same one that Sotomayor aired at the confirmation hearing: under optimal conditions, identity should make no difference to judgment. Identity-transcendence is the epistemic norm.

                                                            I.

            The idea that social identities are fine as long as they are kept in the private domain has been defended by numerous political theorists from high to low.[v] Social identities such as gender and ethnicity are fine in private, organizing the practices of familial and social and religious life, but within the larger public domain they are thought by many to pose certain challenges to democracy. Of course, for the late Samuel Huntington, some particular social identities had no place even in the private domain; thus he infamously argued that Latinos in the U.S. should begin to “dream in English” if they want to become part of the body politic.[vi] But my concern here is with those who are concerned about the public domain: the domain of democratic deliberation, judgment, and political representation.

The essence of the worry has been helpfully articulated by Jean Bethke Elshtain in her book Democracy on Trial. Elshtain argues that if we accept the salience of identity in public deliberation then a political ontology will replace rational debate with identity checks, curtailing open argumentation by the strategic advance of particular interests, so that we come to operate less like citizens debating the public good and more like lobbyists representing identity interests. [vii] To forestall such a dystopic outcome, she argued that “only behavior, not identity, should be criticized,” or in other words that we should vote or choose solely on the basis of one’s record.[viii]

            The sort of worry that Elshtain develops can be unpacked into three distinct but related claims: (1) that to make social identity relevant in public deliberation would result in a reductionism and an essentializing of identity itself, as if those who share an identity share a point of view, (2) that the incursion of identities into deliberation would reduce argumentation to the kind one does to advance a pre-determined interest, diminishing the kind of open-ended debate where one’s conclusions are not determined in advance but determined by the outcome of the discussion, (and this kind of a priori argumentation is the kind many of us criticize in the Republican Party) and (3) that it is possible to transcend one’s social identity, or at least neutralize its epistemic effects.   

We can note that Sotomayor’s own arguments might not be fair targets of this sort of critique. Sotomayor’s claim that identity makes a difference to judgment is based on the idea that identity affects baseline knowledge as well as motivations and the direction of our attentiveness, and, most strongly, our ability in some cases to understand the experiences of others. To take such considerations into account in choosing who to vote for or whose nomination to confirm is not to replace rational reasoning with an identity check but, arguably, to engage in rational reasoning. Elshtain’s concern is with a simplistic, unrealistic account of identity trumping all other considerations, but one need not assume that all identities yield similar perspectives to hold that most identities affect some elements that may be legitimately relevant to the position under consideration. In light of this, taking identity into account as one criterion among others is legitimately rational.

However, we need to augment Sotomayor’s arguments with further analyses of reasoning as well as of the nature of identity. In the remainder of this paper, then, I want to elaborate a way to articulate social identities that can address the legitimate concerns about identity reductivism, as well as a way to think about how identities affect public deliberation.

                                                            II.

I will begin with the topic of deliberation. The key issue here, it seems to me, is to correct the overly volitional accounts of reasoning that often dominate the discussion, accounts that overplay individual agency and portray reasoning as an entirely conscious or transparent operation. To problematize such accounts, I want to introduce some epistemic concepts from market research and from research in social psychology that are highly relevant here. The first concept is "thin-slicing", the idea of rapid judgments that short-circuit the normal time requirements of rational deliberation by filtering a small number of relevant factors from a large number of variables. Philosophers may be most familiar with this idea from the commonly referenced examples of "chicken-sexing" which are based on the fact that some poultry workers can judge the sex of chickens in an immediate snap decision and then be unable afterwards to give an account of the sequence of steps or the criteria they used. Malcolm Gladwell's book, Blink, provides numerous examples of accurate thin-slicing, from art dealers who correctly judge the authenticity, or lack thereof, of art works, to marriage therapists who can judge the likely future of a marriage with 90% per cent accuracy after simply watching a short video of the couple in conversation, to bird identification, medical diagnoses, and taste testing. In many of these cases, the snap judgments were found to be more accurate than the more lengthy deliberations, as in the case of a recently discovered marble statue that was reported to have been dated from the 6th century B.C.E..[ix] This claim was tested over a period of fourteen months by the Getty Museum.[x] A geologist from the University of California subjected the statue to a high-resolution stereomicroscope in order to assess its authenticity, and even removed and analyzed a portion of the statue using  an electron microscope and microprobe as well as mass spectrometry, X-ray diffraction and X-ray flourescence. The scientist pronounced the statue authentic. This judgment, however, conflicted with the snap judgments of several art historians and curators, who had looked at the statue, felt immediately troubled by it, but could not articulate what troubled them. All they could say was that they felt an "intuitive repulsion." Later it was determined that the genealogy of the statue was most likely a forger's studio in Rome and that it was made in the early 1980's.

            The point here is that rapid cognition can be accurate or inaccurate.  In some cases snap judgments can later be tested to determine their accuracy. We can find out whether a medical diagnosis proved correct, or a marriage stays together, whether a chicken can reproduce, or whether the black object that Amadou Diallo was pulling out of his pants pocket was a gun, as the officers reported that they actually saw, or in fact a wallet. But in many other sorts of cases, there is no later check on accuracy, as when we choose not to hire someone or to believe someone's story. Thin slicing is a powerful, necessary tool of everyday life, yet, if it truly is beyond conscious deliberation, insusceptible to unpacking, as it were, it seems to be both exempt from accountability and not subject to improvement.

            Numerous studies marshal evidence to contest both of these pessimistic conclusions. In regard to accountability, the Implicit Association Test administered by Harvard social psychologists over the past several years has revealed immediate, automatic associations about which individuals may have no conscious awareness, such as associations between whiteness and presumptive innocence and blackness and presumptive guilt.[xi] Not only may individuals be unaware of their routine associations, but these associations may be at odds with their consciously held values and dispositions, a fact that is most forcefully brought home by the high number of African Americans taking the IAT test and associating whiteness with innocence, and so on. Claude Steele, who until recently served as the Director of the Center for Behavioral Sciences at Stanford, and who developed the influential and important concept of “stereotype threat,” has also developed numerous experiments to reveal these latent dispositions with respect to racial difference. His work shows that our identity may well be affecting us in ways we would be very surprised about, in regard to everything from test performances to social interactions. I will just give one example.[xii] In one test, he tells two white male subjects, usually Stanford undergraduates, that the experiment they have volunteered for is going to involve their participation in a three-way conversation on the topic of either love, or race, with a third subject who has not yet arrived. The psychologist then casually flips to a chart that shows a picture of the third subject, and in some cases, the two white subjects can see that they will be conversing with a black man, and in other cases with a white man. At that point the psychologist says he has to leave the room for a moment, and he asks the two white male subjects if they wouldn't mind arranging the chairs in the room for the conversation. You can guess what happens next---a two way mirror records the chair arranging, and at that point, the experiment is essentially over, although the third person does come in and they do have the conversation. With an alarmingly high rate of predictability, white males will arrange the chairs much closer together when they know that the third conversant is going to be white, or when the topic of the conversation is going to be love. When the third conversant is going to be black and the topic race, the chairs are set as far apart as the room will allow.

            In another ingenious experiment in social psychology, Jennifer Richeson sought to test out a hypothesis that cross-racial interaction produces mental fatigue among many whites. The effort to appear unprejudiced, she guessed, taxes the brain. To test this, she subjected whites, after they had first been screened via the IAT test for prejudicial attitudes, to the following experiment.[xiii] First, they had to interact collaboratively for a period of time with a person they didn’t know, and in some cases this person was black and in others white. Afterward, the subjects were given a simple cognitive test involving color-naming designed to measure their mental acuity. The results came out clear: the whites who had had to interact with a black person made numerous simple mistakes. They were mentally fatigued. “Similar to the depletion of muscle after intensive exercise, the demands of the interracial interaction for whites resulted in reduced capacity to engage in subsequent cognitive tasks.”[xiv]

            There are loads of such experiments that support the claims by Gladwell, Steele, Richeson and others that our unconscious attitudes affect how we interact, whether we lean forward in conversation or turn slightly away, whether we maintain eye contact, whether we are tense or relaxed, whether we are expressive, smile, make jokes, or are awkward and stumble over our words.[xv]  But through such experiments, the "locked door" on our unconscious can be opened up for inspection.[xvi] And in this way we can achieve a sort of accountability, which also yields the possibility for change. If we conceive of thin-slicing as the product of long years of experience, in which the sifting and judging of variables culminates in a rapid process that cannot be unpacked, then it is those years of experience that can be altered, at least for future generations. And the experience of discovering aspects of one’s behavior and judgment that don’t accord with one’s beliefs about oneself can also have transformative effects on our motivations and modes of attentiveness.

            Now let me introduce a second concept from market research that is also relevant here. This is the concept of sensation transference. The idea here, first developed by one of the founders of modern marketing, Louis Cheskin, is that buying preferences for products are affected by a transfer of sensations that consumers have about the packaging of a product to the product after we buy it.[xvii] This again has been subject to scores of tests, proving that the package a product comes in not only affects our choice of purchase, but also substantively affects the phenomenological experience we have of the product itself, making margarine taste better when it comes wrapped in gold foil, or cheap brandy improve in flavor when it is packaged in a smoked glass bottle shaped like a decanter. There is a limit to the improvement, of course: you can't make ice milk taste like ice cream simply by putting it in one of those small, round up-market containers, but the point is that in aesthetic sensation, not only the taste buds and salivary glands are involved but also the "eyes, memories, and imagination."[xviii]

            Now this idea of sensation transference is bad news for philosophy professors who aren't male, aren't white, and can't grow beards. When short, dark Latinas walk into a classroom wearing a red dress to explain Leibniz, the sensation transference is not in their favor.  They can ditch the red dress, but they cannot take on the packaging that students, and some search committees, still associate with our discipline.  This is the phenomenological reality of social identities, and it is largely beyond the volitional control of the identity-holders themselves to alter. Dominant patterns of thin-slicing and sensation transference are features of culture, and cannot be reorganized by an individual, even one with perfect epistemic virtue. Moreover, such patterns, as Steele’s and Richeson’s studies indicate, are, in some cases, group related. This brings us to the topic of identity.[xix]

                                                                        III.

              The ubiquity and utility of thin slicing gives us more reason to accept the importance of Sotomayor’s arguments about baseline knowledge and personal experience, while the phenomenon of sensation transference provides more reason to doubt that identities can be transcended or neutralized in the public domain. But to operationalize these claims in regard to social identities such as race, gender, and ethnicity, we need a more developed account of what such identities are in order to determine how they might be epistemically salient.

It is interesting to contrast the way we view social identities versus regional identities. It is generally considered entirely legitimate to advance representational quotas based on such regional identity categories as "people from Georgia" or “citizens of upstate New York.” We consider such categories legitimate, despite their internal differences, and germane in regard to discussions about the transport of hazardous materials along highways within these regions.[xx] Such categories mark acceptable ways to judge the adequacy of representation even in arenas of rational deliberation over the public good, and thus we use such regional-based categories to create government assemblies. But we have more trouble with projects that try to secure representation for social identities. Gerrymandered districts, whether they are created to avoid or to secure minority-majority voting blocs, generally create discomfort.  Somehow, we can imagine our regional identity as having legitimate epistemic salience in public reason, but are troubled when similar claims are made for social identity. This difficulty, I suggest, is caused at least in part by a general uncertainty about how to characterize what social identities are.

            In a recent paper Akeel Bilgrami tries to "impose some theoretical order," as he puts it, on the discourses around identity by distinguishing between subjective and objective aspects of identity. He explains, "Your subjective identity is what you conceive yourself to be, whereas your objective identity is how you might be viewed independently of how you see yourself."[xxi]  This distinction is also a feature of the account of identity I develop in Visible Identities: Race, Gender and the Self. Social identities, especially those like race and gender, are suspect for many people because they introduce objective, unchosen and even arbitrary features into an account of the self (these are the features that constitute your objective identity). Any normative account of the self, on this view, should obviously strive to transform social conditions so that objective social identities would play little or no role in the formation of life goals, one's sense of one's self, and one's judgment of others. Such values are key components of most cosmopolitan and post-ethnic political visions, such as those articulated by Kwame Anthony Appiah, Jason Hill, and Nancy Fraser, more recently Georgia Warnke.[xxii] Appiah, for example, suggests transforming all identities into the subjective type, rendering them volitional and recreational as opposed to objective, in order precisely to render identity compatible with a classically liberal model of selfhood.

            Given the reality of the way that group-related experience can affect reasoned judgment, however, the unchosen and objective markers of social identity are not altogether arbitrary in the sense of properly irrelevant to who we are and what we believe. Objective identities may indeed be misinterpreted, but they may also be taken as legitimate signs or correlates of our baseline knowledge and modes of attentiveness on various matters, even if their ability to function as signs of such things is fallible. Striving to make such signs invisible because they can be misinterpreted is both unrealistic and unnecessary. 

            The worries that many philosophers have with objective markers of social identity, and thus with social identities generally, is often based in the disconnect that can occur between how we view ourselves and how we are viewed by others. For example, I may view my gender identity as having only partial relevance to my life goals or even to the main sort of parenting role I play with my children after I have weaned them, yet others may view my gender identity as having overwhelming importance, fully determining my work options and parenting commitments. Many discourses of liberation have drawn from these kinds of examples to develop their social criticism. However, it is a mistake to assume that the way I view myself should always trump the way that others view me. As Bilgrami himself notes, errors can occur from both directions. Let me explain this further.

It is certainly legitimate in some cases to use first person experiences to show the mistaken assumptions in oppressive stereotypes or simply to assert our individuality against overly homogenized and essentialist characterizations, such as when many women report that they have no feelings that might be classified as a maternal instinct. In many sorts of cases, from toothaches to emotional experiences to aesthetic experiences, we might be inclined to say that an outsider simply lacks access to the basic data sufficient for establishing a claim about a person, since this data is only accessible in a first person, phenomenological form.  What is important to note is that these sorts of argumentative strategies are intuitive and familiar to many of us because they resonate with broad liberal traditions that privilege first person experience over the third person point of view, and that prefer to think of selves in individual terms and not as related to groups.

            However, (and this is the less commonly held, and less familiar view), in other sorts of cases, the incoherence between the way we view ourselves and the way we are viewed by others should be resolved in favor of the external view. Consider, for example, if the white males in Claude Steele's chair-arranging experiment reject the idea that whiteness is an important feature of their identity. This is not an uncommon subjective report from whites, as the work of sociologists such as Ruth Frankenberg, Charles Gallagher, and others have shown.[xxiii]  But no matter what their subjective sense of themselves is, there may be patterns of interaction, presumption, association, practices of thin-slicing, that all concur with broad patterns in contemporary white identity. Thus, the subjective interiority is in some cases in need of correction.

            In general, then, the idea that social identities have both a subjective and objective aspect, that these can be aligned or unaligned, and neither should be viewed as indefeasible, is a good starting place to begin to theorize identity. Clearly we need to add a dialectic or interactive account of the ways in which subjective and objective aspects of identity affect the other.  A classic example of the external side affecting the internal side is the story that W.E.B. Du Bois recounts about an apparently innocent ritual in his second grade classroom of exchanging Visitor's Day cards. When his card was shunned by a white girl, Du Bois writes that he discovered his objective racial identity for the first time, his separateness from his white classmates, and the negative associations his very appearance carried for them, all of which profoundly affected his own subjective sense of self, of who he was. As an example of the way in which the internal side can influence the external side, think of Jeane Kirkpatrick, the former U.S. Ambassador to the United Nations, whose public self lacked most conventions of feminine comportment or dress, which surely influenced the way that others responded to her. Some subjective senses of one's self can induce modes of self-presentation that defy expectations and can even alter the way one is treated.

            Over-generalizing from a case like Jeane Kirkpatrick might result in a mistaken overemphasis on the efficacy of the subjective side to alter the way one is viewed and treated by others. What obviously limits the power of self-presentation to alter public responses are larger structures and social meanings within which we are embedded. Objective identities gain their intelligibility from the structural social organization of a given society as well as from the systems of meaning attached to phenomenological features of one's physical appearance. Thus, to Bilgrami's definition of objective identities as "how one is seen by others," we need to add, "and how one is positioned within social systems." Objective identities are not simply made up out of the aggregate of how I am seen by others but by empirically measurable structures of power and by the history of meanings conferred on visible features. What this means for our identity is that we cannot suddenly or easily transcend the kinds of opportunities that are determined by social location, nor can we easily ignore the range of experiences that determine our snap judgments, nor can we radically alter the sensations induced by our packaging. The objective aspects of our identities are mostly beyond our individual power to transform. It is true that the meanings attached to a given appearance can sometimes change as one moves to different locations, and so one can produce a different effect by literally moving to a different place. This was, no doubt, part of Du Bois's motivation in moving toward the end of his life to Ghana. But this only re-enforces the point that individuals are forced to engage with and negotiate the available meanings, opportunities, and social structures in their context. 

            Nonetheless, by stressing that identities have both objective and subjective aspects, in interaction, we can avoid losing sight of the agency that individuals possess in negotiating their identities given their context. To elaborate a realistic account of such agency, and to develop an account that can help explain intra-group differences among those who share a gender, race, or ethnicity, it is helpful to make use of Hans-Georg Gadamer’s concept of the hermeneutic horizon.[xxiv] The horizon is a substantive, perspectival location from which the individual looks out at the world; thus it is open and dynamic, in constant motion both temporally and spatially. Gadamer uses the concept to signify the ever-growing and changing kaleidoscope of congealed experiences from which one makes sense of new events, new experiences. Thus the horizon is not simply a location, but also an orientation. Thinking of the subjective aspects of our identities as hermeneutic horizons helpfully captures the way that identities are often correlated to certain framing assumptions, determining what is foregrounded, what remains background, and the range of concepts and categories that we have at our disposal to make sense of the world. The point is not that all those who share a group identity share identical horizons but they may well share certain common, significant, and repeated experiences as well as a profound relation to certain historical events. Common experiences can yield diverse interpretations and yet, for example, nearly everyone in Panama today has both a strong opinion about and an emotional resonance of one sort or another with the events of December 20, 1989, when the United States militarily invaded it, just as every New Yorker has a visceral response to 9/11. Identity does not yield political uniformity or predictability, but, rather, a reflexive relationship to certain kinds of experiences and events that others may well and easily ignore.  This means that such groups will be more likely to care. The group "people from upstate New York" will no doubt care about the transport of hazardous materials along Interstate-81 to an extent that “people from Georgia” may well not. Group identity has an impact on both the content and orientation of our hermeneutic horizons.[xxv]

            We might think of one's objective identity as a part of what makes up one's hermeneutic horizon. Having to deal with expectations of socialized femininity on a daily basis adds up, after awhile, to no small amounts of irritation or to acquiescence or to fortitude or to collective action or to a dozen other possibilities. There is a necessity to this responsiveness that those who present as males do not share. And all of this goes into our thin-slicing. In some cases women on juries are more likely to let rapists go free, not, as it turns out, because they have increased gullibility toward rapists, but because they tend even more than men do to blame the victims. Theorists call this a functional response to seeing oneself repeatedly as a potential victim: in a context of epidemic sex crimes it is comforting to believe that one can avoid victimization by careful behavior. Do these patterns of wishful thinking among women mean we should not be allowed sit on juries hearing sex crime cases? No, but it does indicate that prosecutors may need to do some subtle educational work about this phenomena as they make their case.

            What is most interesting about the 2008 presidential election is not that the transcendence of identity considerations but their refiguration. The fact that 2/3 of whites were able to vote for a black man indicates a refiguring of the meanings of blackness as well as a diminution of the power of blackness, or whiteness, to stand alone as an imagined, or real, sufficient cause of behavior. Whiteness by itself is no longer a uniform predictor of voting patterns; whiteness operates as a predictor only in combination with urban or rural status, gender, and membership in a union. Some whites could see Obama as representing the common good, no matter his identity, but some may also have considered that his specific identity yielded advantage, for example in an understanding about racism or about life in other parts of the world. Certainly the meaning of Obama’s statements, and the way they are heard, on a variety of topics are altered by his identity: when he calls for cross-racial unity, the meaning of the call is shifted than when a white person calls for it, invoking a greater generosity and optimism since it is coming from someone more viscerally aware of the harms of white supremacy.

This is an interesting moment to analyze the practices of thin-slicing, sensation transference, hierarchies of epistemic credibility, and so on, that operate on our judgment. We need more discussions about the epistemological implications of race, class, and gender, to make more visible, not less, what is operating in our quick judgment calls.   Calling for a boycott of considerations of race, class, and gender is to make our judgments less accountable and less subject to improvement. 

           

                                                                        V.

            If we conceptualize identities along the lines of hermeneutic horizons, this does not introduce a uniform set of interests or point of view or set of assumptions. We cannot assume from any candidates' or nominee’s identity that they understand that groups' experience or share their politics, since horizons are neither uniform nor universally shared. Horizons are starting places, not endpoints. Elshtain and others who worry that acknowledging the legitimate salience of identity in the public sphere will legitimate a sort of interest group politics and curtail rational deliberation over the common good are mistaken about what identities actually are, and how real knowing actually occurs.

Bringing horizons and thus identities to bear on analyses of knowing will help facilitate more realistic accounts that can attend to the non-volitional as well as volitional aspects of our epistemic practices, thin-slicing as well as informed deliberation. Given his promise to send her a vacuum cleaner, it seems likely that when Rush Limbaugh looked at Sonia Sotomayor, her packaging, for him, called up an image of a hotel maid. This is not a fringe phenomenon. Ignoring the effects of sensation tranference and thin slicing on the process of our judgment will only keep the locked room in which much of our judgment goes on locked up. If identities make an epistemic difference, then using identity as one criterion is a legitimate practice in choosing who to vote for or how to assign a jury, a court, or a committee. Of course it is quite easy to use identities as covers for retrograde policies, for Republicans to appoint war-mongering women, or for Democrats to do so. But most people can see through that. In a snap.

 

 

 

 



[i] Sotomayor explains in her speech, cited below, that this statement is generally attributed to O’Connor, but she explains that Yale Law Professor Judith Resnik has also attributed the line to another Supreme Court Justice.

[ii] The title of the lecture was “A Latina Judge’s Voice.” It was delivered as the Judge Mario G. Olmos Memorial Lecture in 2001, and published in the Spring 2002 issue of Berkeley La Raza Law Journal in as part of a Symposium entitled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.” The full text of the speech is available at <http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html>.

[iii] And some tried to defend her claim by saying that it was in the context of an inspirational speech to minority law students. However, this defense implied that the claim itself is not defensible on epistemological grounds.

[iv] Most of the news clips in which these epithets were aired have been usefully collected by the Women’s Media Center in a youtube video available at <http://jezebel.com/5312149/the-predictable-reactions-of-white-men-to-racism-sexism-and-sonia-sotomayor>.

[v] I discuss these at more length and with more specificity in my book, Visible Identities: Race, Gender and the Self (Oxford: Oxford University Press, 2006).

[vi] See Samuel P. Huntington, Who are We? The Challenges to America’s National Identity (New York: Simon and Schuster, 2004), p. 256.

[vii] See Jean Bethke Elshtain, Democracy on Trial (New York: Harper Collins, 1995), pp. 52-53.

[viii] Elshtain, p. 53.

[ix] Malcolm Gladwell, Blink: The Power of Thinking without Thinking (New York: Little, Brown and Company, 2005.

[x] Gladwell, pp. 3-8.

[xi] See <https://implicit.harvard.edu/implicit/>.

[xii] See Claude M. Steele, Phillip Atiba Goff, Paul G. Davies “The Space Between Us: Stereotype Threat and Distance in Interracial Contexts” Journal of Personality and Social Psychology 2008, Vol. 94, No. 1, 91-107.  See also C. M. Steele, “A threat in the air: How stereotypes shape the intellectual identities and performance of women and African-Americans,” American Psychologist, 52, 1997: 613-629; C.M. Steele and J. Aronson,  “Stereotype threat and the intellectual test performance of African-Americans,” Journal of Personality and Social Psychology, 69, 1995: 797-811.

[xiii] J. A. Richeson and J. Nicole Shelton, “When prejudice does not pay: Effects of Interracial Contact on Executive Function,” Psychological Science Vol. 14, No. 3 (May, 2003), pp. 287-290. See also Richeson, J. A., & Trawalter, S. (2008). “The threat of appearing prejudiced and race-based attentional biases,”   Psychological Science, 19, 98-102; Richeson, J. A., & Shelton, J. N. (2007); “Regulatory focus and executive function after interracial interactions,” Journal of Experimental Social Psychology, 42, 406-412; Richeson, J.A., & Trawalter, S. (2005a); “Why do interracial interactions impair executive function? A resource depletion account,” Journal of Personality and Social Psychology, 88, 934-947.

[xiv] This quotation comes from a summary article that appeared (unsigned) in The Journal of Blacks in Higher Education, No. 43 (Spring 2004), p. 50.

[xv] Gladwell, pp. 85-86.

[xvi] I am using the term “unconscious” here only in an informal, non-Freudian sense to mean behavior that is pre-reflective or unthematized. Steele’s research indicates, for example, that whites may have access to their own experience of stereotype threat, that is, the fear of being interpreted as racist. See Steele 2008, cited above. Yet the possibility of access does not always correlate to a thematized reflection with the ability of a subject to articulate the experience in language, but, rather, to the potentiality of thematization. Other possible ways to understand this is through the concept of the habit-body or the imaginary, both of which have been used by philosophers to describe pre-reflective commitments and dispositions that structure affect, perception, and interpretation, such as when we seem to be directly perceiving the mistreatment of a dog but not of a rat. In the phenomenological tradition, a related concept is pre-thematic consciousness, in which the object of consciousness or mode of perception is unthematized as an object of analysis, though it can be brought into view when the normal mode of practice experiences some break. For example, when forced to drive on the opposite side of the road than one is used to, the wealth of automatic bodily knowledge one has about judging distances for turns comes into relief, precisely because of its sudden absence. Thus, in the phenomenological tradition, the sphere of the pre-thematic or the imaginary can be brought to consciousness in a more robust sense than in the Freudian tradition.  This issue is discussed more thoroughly in Visible Identities, chapters 4, 7, and 8.

 

[xvii] See Louis Cheskin and L. B. Ward, “Indirect Approach to Market Reactions,” Harvard Business Review, (September 1948); see also. Thomas Hine, The Total Package: The Secret History and Hidden Meanings of Boxes, Bottles, Cans, and Other Persuasive Containers (New York: Little, Brown, 1995). Also discussed in Gladwell, chapter 5.

[xviii] Gladwell, p. 165.

[xix] Lest we think such stereotypes about packaging are about to wither away of their own accord, I suggest reading Stuart and Elizabeth Ewen's masterful recent work Typecasting: On the Arts and Sciences of Human Inequality (New York: Seven Stories Press, 2006),  on the history and present day popular cultural representations of human inequality. We may not still today be teaching Lavater's 18th century physiognomy of human types, in which noses, head shapes, and postures were categorized into extensive human hierarchies indicating virtue, vice, and intelligence. But we are inundated more than ever with a visual culture that confers associations between human "types" and visible social categories. This renders the retraining of thin-slicing based on phenomenologies of appearance rather more difficult than ever before.

[xx] One might argue that racial and ethnic representation is germane even to the transport of hazardous materials, given the ongoing practice of environmental racism.

[xxi] Akeel Bilgrami, “Notes toward a definition,” Daedalus Fall 2006, Vol. 135: No. 4, p. 5.

[xxii] See Jason D. Hill, Becoming a Cosmopolitan (New York: Rowman and Littlefield, 2000); Nancy Fraser, “Rethinking Recognition,” New Left Review 3 (May-June): 107-20; Kwame Anthony Appiah, The Ethics of Identity (Princeton: Princeton University Press, 2005); Georgia Warnke After Identity: Rethinking Race, Sex, and Gender (Cambridge: Cambridge University Press, 2008).

[xxiii] See Ruth Frankenberg, White Women, Race Matters: The Social Construction of Whiteness (Minneapolis: University of Minnesota Press, 1993); Charles Gallagher, “White Reconstruction in the University,” Socialist Review 94, nos. 1 and 2: 165-188.

[xxiv] See Hans-Georg Gadamer, Truth and Method. 2nd ed. Trans. by Joel Weinsheimer and Donald G. Marshall. New York: Crossroad Press, 1991. Further discussion of the use of this concept for identity is in my Visible Identities 2006.

[xxv] The epistemic salience of race and gender identity is as mundane as the epistemic assumptions behind the demand that representatives from the state of Georgia be on hand to discuss policies that vitally affect Georgia. The disanalogy here is that elected representatives are presumably democratically chosen whereas procedures that ensure diversity on search committees, for example, are generally not based on elections but on sometimes random appointments. Yet the point is that in choosing elected representatives, identity is considered a legitimate aspect of their qualifications, indicating that a minimal epistemic idea is shared across the two situations.