I am not a lawyer, and law was probably one of my poorer classes in grad school. However, my impression is that the legal world assumes there is objective truth, and that people can be objective.
As to the latter, women's studies has traditionally asserted that objectivity is bounded, that our perception of facts is linked to our social identities, like race, class and gender. The growing fields of behavioral finance and behavioral economics also assert that our rationality has limits.
Women's studies also teaches that subjectivity is good. Women's voices have too often been silenced, as have the voices associated with other marginalized social identities. Paying more attention to the subjective allows us to understand the worldviews of people we might have marginalized.
Leaders need to aim for a balance of objectivity and subjectivity. It's impossible to be completely objective. It's also unwise to do so - else, you might marginalize someone and tell yourself that you were completely justified to do so.
President Obama said he wanted to appoint a judge with empathy to the U.S. Supreme Court. Judge Sonia Sotomayor, the President's eventual nominee, once said, "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.”
Conservatives have complained vociferously. To be fair, her remark could easily be taken the wrong way. However, in her comments, she has apparently distanced herself somewhat, in this WSJ article:
Judge Sonia Sotomayor, parrying tough Republican questioning, distanced herself from President Barack Obama's comments about judicial empathy, saying, "We don't apply feelings to facts."
Republicans suggested Judge Sotomayor was changing her views to get through her confirmation hearings. They expressed dissatisfaction with her answers on questions such as what she meant when she suggested a "wise Latina" would make better decisions than a white man.
"I do not believe that any ethnic, racial or gender group has an advantage in sound judging," she said.
"Had you been saying that with clarity over the last decade or 15 years, we'd have a lot fewer problems today," said Alabama Sen. Jeff Sessions, the Judiciary Committee's ranking Republican.
Sen. Jon Kyl (R., Ariz.) cited Mr. Obama's comments that in the hardest questions of constitutional law, when text, precedent and other legal tools reach their limits, the rest must be determined by what is in the judge's heart. The senator asked if Judge Sotomayor agreed.
"No, sir, I wouldn't approach the issue of judging the way the president does," she said. "Judges can't rely on what's in their heart...The job of a judge is to apply the law."
She added, "It's not the heart that compels conclusions in cases, it's the law."
Nonetheless, she still connects experience and empathy to sound judging. From the WSJ article:
On the "wise Latina" matter, Judge Sotomayor first said, to laughter in the hearing room, "No words I have ever spoken or written have received so much attention."
She said she had used similar lines for years in lectures to different audiences, particularly women lawyers or "young Latino lawyers and students."
"I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do," she said.
And from a New York Times article:
Still, Judge Sotomayor questioned whether achieving impartiality “is possible in all, or even, in most, cases.” She added, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
She also approvingly quoted several law professors who said that “to judge is an exercise of power” and that “there is no objective stance but only a series of perspectives.”
“Personal experiences affect the facts that judges choose to see,” she said.
Charles J. Ogletree Jr., a Harvard law professor and an adviser to Mr. Obama, said Judge Sotomayor’s remarks were appropriate. Professor Ogletree said it was “obvious that people’s life experiences will inform their judgments in life as lawyers and judges” because law is more than “a technical exercise,” citing Justice Oliver Wendell Holmes Jr.’s famous aphorism: “The life of the law has not been logic; it has been experience.”
The corollary to her "wise Latina" statement, then, is that a White man could also be an excellent judge if he were truly wise - if he had balanced judicial objectivity with life experience, subjectivity, and empathy to other social or economic groups. Conversely, a person of color or a woman could easily act unwisely by attempting to be solely objective.
Leaders in other fields should similarly attempt to balance objectivity with subjectivity. It will allow them to make wiser decisions.
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