On Sept. 17, 2009 I attended a lecture given by Professor James W. Tubbs. The talk was in Schofield Hall and focused on the U.S. Constitution and on the reasons for the complexity surrounding the confirmation of Supreme Court justices. My comments to follow are not directed at Dr. Tubbs. Rather, I have used his lecture as a catalyst to stimulate my own thinking on the issues. I wish to share these ideas with the campus community in the hopes of generating more conversation about this important and relevant subject.

I imagine most of us have seen the image, the statue of the woman in her robes, with a sword in one hand and a scale held high in the other. Covering her eyes she wears a blindfold. However, despite common folklore, justice is not blind, it never was blind and it never will be. What this means is that the old adage, “We are a nation of laws not of men,” is a fallacy. We are in fact a nation of men and of women and not of laws. A law existing on the printed page is meaningless without someone to interpret it. To illustrate the support for this claim I present two different perspectives on the subject.

All human beings have biases and therefore, inescapably, their interpretations of the laws on the printed page are subject to those biases and prejudices. In teacher education (my field) a substantial body of research has identified the presence of biases in individual educators. For example, teachers have been shown to form snap judgments about their students based on all of the following attributes: weight, height, beauty, skin color and language ability. For teachers, the problem is not so much that these biases exist, but that these biases may cause teachers to behave differently toward certain students and, as a result, some students may prosper while others suffer.

Some have argued that experts are exempt from having bias, or that they can suppress their prejudicial feelings in favor of a completely objective assessment. Can the oenophile, with decades of experience judge the quality and character of a wine without being influenced by extraneous data? Many wine aficionados would say “yes” but the true answer is this: “not consistently.” It turns out that the color and shape of the bottle, the attributes of the label, and the evaluator’s knowledge of the wine’s geographic origins can and do influence how “good” the wine tastes. Interesting research reviewed in Malcolm Gladwell’s book Blink (2005) examines claims by classical music experts that they are able to objectively determine the quality of the music played at orchestra auditions. These musical experts audition performers and make decisions about who is hired for the paucity of paid positions in orchestras. The problem was that women rarely landed any of these coveted jobs. When asked why so few women got these jobs the maestros said things like “women lack the lung capacity and the muscle strength;” “their physical size inhibits their ability;” and “emotionally they can’t feel the music as the composers would have wished.” Many who heard these arguments thought the answers made sense. After all, women are by-and-large smaller than men. However, the musician’s union was not convinced. Enter the screen that enabled the auditioner’s sex to be concealed from the judges. Nearly over night the number of women playing in paid orchestra jobs increased significantly. Did women just start playing better? This is not a reasonable explanation. What is more plausible is that, commonly held perceptions about women as musicians biased the judges so that they heard what they expected to hear, poorly performed music by weaker performers. In my view, there is no reason to suspect that a Supreme Court justice would be exempt from this reality. Despite all their legal training, judges are not able to completely remove their personally held biases from their readings and rulings regarding the law.

Here is another important point to consider. To say that we are a “nation of laws and not of men” denies the experience of so many Americans. The Americans that I am speaking of are the American’s of color. Ask Emmett Till if justice was blind, ask Rubin Carter if justice was blind or ask Rodney King if justice was blind. No reasonable person would conclude that justice has treated any of these men with a blind eye toward race. The color of people’s skin has historically pre-determined the outcome of their trials.

All humans are biased. We cannot escape the reality that we have biases. The question now becomes, what do we do with them? If we can at the very least acknowledge our biases then we can try to control for the possible negative effects that they may have on other people. If we deny that they even exist then we can do nothing. This is why I strongly suggest that we dispel the overly simplified illusions that justice is blind and that laws regulate societies without people interpreting them.