Negotiating Justice: Anchoring, Bias, Dad And Sotomayor

I do not recall the day on which I learned I spoke with an “American” or “West Coast” accent but I remember it coming as a surprise to me.  As Cristof, the director of The Truman Show says of his “creation,” the happily oblivious Truman Burbank,  “We accept the reality of the world with which we are presented.”

The fact that people are still questioning whether a woman, an African American, a Latina or (gasp:  clearly for a more equitable society) a gay, bi-, Lesbian or transsexual, jurist will be “biased” by his or her unique perspective is dispiriting to say the least.  As many people in high (the New York Times, CNN) and low (twitter) places have rightly pointed out, no one asks whether a white man will bring his prejudices to the Bench.  Why?  Because white men “have no accent.”  The dominant culture does not think of itself in terms of race (it doesn’t have to) and the people with power (still primarily white men) do not need to ask themselves thorny questions about their attitudes toward their own race and gender.

Here’s an example from the New York Times:  Speeches Show Judge’s Steady Focus on Diversity, Struggle

WASHINGTON — In speech after speech over the years, Judge Sonia Sotomayor has returned to the themes of diversity, struggle, heritage and alienation that have both powered and complicated her nomination to the Supreme Court.

She has lamented the dearth of Hispanics on the federal bench. She has exhorted young people to value immigration. She has mulled over the “deeply confused image” America has of its own racial identity. And she has used on more than one occasion a version of the “wise Latina” line that she has spent much of this week trying to explain.

Today is my father’s birthday.  It is also the one-year anniversary of his death, so I’ll ask you to forgive my stream of consciousness post.  I promise to tie it up in a bow by post’s end.

Dad — a dust bowl refugee — a lawyer at 42 and Bench officer by 52, used to say that there “should be dumb politicians, to represent the dumb people.”  He was exaggerating, of course, to make the point that a representative government should represent all of the people and not just the privileged majority.

Was Dad’s life-view affected by his humble origins, his “struggle” to overcome his lack of a completed high school education and a culture of poverty, as well as the burdens of his gender in mid-Century America (burdens which assumed only men were obliged to work to support their families)?  You bet it was.

Did anyone ask whether Dad was going to bring a white, male, depression-era, bias to the Bench?  No.  Did he?  Yes of course he did.  Still, Dad leaned as far away from his mid-20th Century white male privilege as he could, drafting “marital” agreements for gay clients from the late ’60s until he went on the Bench; voting against his economic self-interest in every Presidential election (proudly asserting that he paid more in federal income tax than he used to make annually) and supporting all civil rights movements — African-American, Chicano (the term of that day), women and gays.

Dad was a good guy aware of his biases and willing to push against them.  It is not, however, possible for any of us to be without bias as this article in the Cornell Law Review — Blinking on the Bench: How Judges Decide Case — demonstrates.

Below:  me and Dad, may he rest in peace.  9 June 1924 to 9 June 2008

I’ve had this article in my files for some time because it’s about anchoring — the principle that negotiators will be influenced by any number that enters the negotiation environment, no matter how random.  Below is an excerpt from “Blinking” demonstrating the power of anchoring on judicial decisions.  Note the repeated use of the word “intuitive” – a word usually associated with women but not only a woman’s talent or trait. (All emphases supplied)

                       

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >