by Rushworth M. Kidder

The Senate Judiciary Committee shortly will begin its confirmation hearings on Sonia Sotomayor, president Barack Obama’s first nominee for the U.S. Supreme Court. But will it ask the central question?

That question isn’t about her experience on the bench. It’s not about her allegiance to her Catholic roots or her tilt toward the underrepresented. It’s not about her penchant for crafting prose that is exacting and deliberate rather than sweeping and quotable. It’s not even about identity politics — the way her race and gender might influence her decision making.

Important as these are, the key question is about her ethical mindset. Not “her ethics”: There’s nothing to suggest anything here but the highest personal integrity. This question is deeper: What conditions must prevail for Judge Sotomayor to say, “Yes, ethics has been done”?

The question goes to the heart of what Supreme Court justices need these days. New technologies spin off ethical questions at warp speed, in everything from cyberwarfare to neuroenchancers. As these issues come to judgment, the court will find itself addressing entirely new regions of moral concern.

Even more important, the court finds itself at the crossroads of a public discourse that is increasingly polarized, strident, and dismissive. It will find itself rendering opinions in the face of a popular culture that tends to reduce every issue to an absolute, I’m-right-you’re-wrong, good-versus-bad dichotomy (as, for instance, in the increasingly harsh debate over the Sotomayor nomination). In response, the court will need to remind a perhaps surprised public that it hardly ever sits in judgment on matters of right versus wrong. Instead, its task is almost always to resolve right-versus-right dilemmas, where each side has noble and potent moral arguments on its side.

Which is where the question of Judge Sotomayor’s ethical mindset comes in. Facing some of the most intractable issues of our day, she’ll be asked to choose between two right sides on:

• Immigration. How should we treat illegal aliens? Since so many have been allowed to stay for so long, building lives and forming communities, it’s right to include them — and especially their children — in the social services network. But since by definition they are “illegal,” it’s right to invoke the law and send them home.
• Economic justice. What ought we to do about those who lost livelihoods or mortgages in this recession due to the recklessness of others? It’s right to help victims back toward stability. But it’s also right to make the reckless take responsibility for their own financial decisions.
• Gay marriage. How do we respond to this movement? There are powerful arguments for recognizing the rights of same-sex couples to enter into a relationship that affords the legal protections necessary to ensure the welfare of their families. But there also are powerful arguments for allowing churches not to recognize such unions if they contradict their belief systems.

What ethical principles will Judge Sotomayor bring to bear on these questions? Will she speak from an ends-based, utilitarian perspective, always paying attention to consequences and seeking the greatest good for the greatest number? If so, we might expect her to side with the first set of arguments in the above bullets — being sensitive to policy outcomes that can impose real hardship on aliens, the unemployed, and gay Americans.

Or will she speak from a rule-based, Kantian perspective, always advocating the precept she thinks should become a universal standard? If so, she’ll probably side with the second set of arguments, paying more attention to the need for overarching, universal principles concerning legality, economic responsibility, and maintaining the traditional definition of marriage than to the immediate impact of her rulings on affected individuals.

Either way, Judge Sotomayor will find herself in a tough ethical position. By nature, judiciaries are rule-based, seeking to create the precedents — the universal principles — that endure over time and set standards for everyone. Legislatures, however, are ends-based, looking for ways to accomplish the most benefit for the largest number of stakeholders. Her background, and her self-assessment of the role that race and gender play in her decision making, align her with the latter. As such, she readily can play the role of the good utilitarian, for whom ethics gets done by focusing on specific consequences in each case. But her role as a judge, especially in the highest court of the land, will set her up to be the good Kantian, for whom ethics gets done by putting aside short-term, case-specific outcomes in favor of long-term universals.

Moving toward the former, she’ll be accused of behaving more like a policymaker than a judge and “legislating from the bench.” Moving toward the latter, she’ll be accused by the very constituencies she so long has defended. How she strikes this balance will depend on what, case by case, she sees as the ethical imperative.

©2009 Institute for Global Ethics

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