Stop Seeking Certainty Minows Response To Bork

.. s. To deny this effect is to delude ourselves. This is the reason that I hold the view that impartiality is a myth. Our socialization is integral to our being, we are humans, not machines, and as such are not immune from our inner stereotypes, prejudices and beliefs. In addition, Minow points out that true objectivity would require a “God’s eye view” , that is, a view which is capable of seeing everything at once. This kind of view is obviously unattainable by humans, and as Minow points out “those who claim it are untruthful” (Minow, pp.

171). Third, the Borkian view, in it’s quest for impartiality shows a distinct preference for deference to the legislature, and in doing so fails to be impartial due to the fact that such deference “favors the statues quo and those benefited by it”(Minow, pp. 176). So in the attempt at impartiality, Bork would actually create an inherent bias. Lastly, I do not think that Bork’s view serves the interests liberty. The Borkian view leans toward a kind of inflexibility that cannot possibly be expanded to cover the expansive needs of the judicial branch of government.

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If the Borkian view were adopted, judges would be more like automatons than judges. They would be forever bound by Borkian originalism, rendering the judicial branch much less effectual in administering justice that keeps up with the times in which that administration occurs. What we need then is a method of Constitutional interpretation that takes into account these facts and attempts to compensate for them. Such a method is suggested by the noted feminist legal theorist, Minow. Minow, would have significant problems with Bork’s arguments for original intent theory as the best method of Constitutional interpretation. But, she would have problems not only with Bork, but also with any legal philosopher who purported to have a viable system of constitutional interpretation.

It is Minow’s assertion that all methods of constitutional interpretation are in fact only fronts for furthering individual belief systems, and that those in power who claim to be interpreting the Constitution are actually only using the document as a tool for the legitimization and continuation of their own power. It is her assertion that judges should simply discard traditional methods of Constitutional interpretation and recognize that they are in fact involved in politicking. At this point she asserts that the judge should adopt a new method of Constitutional interpretation by which to make decisions. She argues for a recognition of the impossibility of impartiality. She asserts that only by recognizing our own prejudices can we hope to overcome them. She also holds that the major problem judges face is “the dilemma of difference” (Minow, pp.

168). The dilemma of difference is a considerable obstacle to overcome in Minow’s theory. If a certain group, such as women, are given sick leave for bearing children, this may enforce the idea that women are different from men and are intended to be child bearers not workers. However, if women are not given leave time to have children, the interests and rights of the woman are being infringed upon. The question becomes, how could a judge in such a case make a fair decision that would protect the rights of women without further stereotyping them to their detriment. The solution to the dilemma of difference, according to Minow, is for the judge to adopt the perspective of the person or group in each case which is being labeled as “different”, and then use that perspective to help him gain a broader base of information upon which to make an equitable decision.

I think that she is arguing for the legitimization of judicial decision based on case by case, situational merit, as opposed to legitimizing a judicial decision based on precedential or historical merit. In short, she is saying that each case is different, that an entirely different dynamic exists in every case, so much so that precedent is largely useless and should be abandoned in favor of decision making based on perspective taking and the character of the judge. Minow, argues for the validity of perspective taking for it’s usefulness in rendering fair decisions. This is diametrically opposed to Bork who argues for an absence of empathy for parties involved. Clearly, Minow’s view is an attack on legal abstraction in favor of recognition of reciprocal realities (Minow172). Minow argues that the first step toward overcoming the pitfall of supposed impartiality, is to recognize that we each have our own predilections, and to try to adopt perspective-taking in an effort to combat unilateral decision making.

In short, she asserts that judges should “stop seeking certainty”, and recognize the existence and multiplicity of “colliding realities” (Minow, pp. 172). In doing so the purposes of justice will be better served. However, one may argue that perspective taking can create problems. For example, if we lower entrance requirements for Black college freshmen in order that this historically disadvantaged group may become more represented on college campuses, we take the risk of fermenting the notion that Black’s aren’t as smart as whites and so would need lower requirements (Minow pp.174).

Minow would reply that this is a risk to be taken in light of the possible benefits that can be derived from examining one’s own personal prejudices. She would say that these benefits include a more fair and relevant jurisprudence. In addition to a thorough examination of our own stereotypes, Winow suggests that we seek out differences in others and learn not only to accept but to appreciate those differences. She also suggests that in the search for difference we will discover our greater commonalties and thereby slowly begin to intellectually disassemble the perception of otherness associated with difference and too often with inferiority. Winow also addresses what she calls the problem of Judicial passivity.

In her view, the plight of the minority, or the different, is often met with indifference, and judicial passivity. Clearly, Winow represents the diametrical opposite of Bork in terms of views concerning the interpretation of the Constitution and the application of Constitutional principles by the Judiciary. Of the two views I am more impressed by Winow. As I’ve said, it seems to me that the framers wrote the Constitution in such broad terms so as to provide for flexibility that would serve the needs of liberty. Bork’s view of historical interpretation smacks too much of literalism.

I do not think the needs of liberty are served by rigidity, and thus are poorly served by the kind of Constitutional interpretation for which Bork argues.