Thoughts On Sotomayor
I haven’t said anything yet on the nomination of Sonia Sotomayor to the Supreme Court, and one reason has been that I did not know much about her outside of the Greenwald-Rosen clash a few weeks ago. I’m not sure that I know that much more about her now, but I can say something about the responses to her nomination. It seems somewhat telling that even Rosen, who wrote what Greenwald reasonably regarded as a shabby smear job, presently supports her confirmation. As Noah Millman has observed, the main thing that is regularly included in the charges against her is her position on the Ricci case. Also looming large in the arguments against her are the remarks she made in a speech eight years ago, including this quote:
I would hope [bold mine-DL] that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.
Apparently, in the same speech, according to National Journal‘s Stuart Taylor, “she suggested that “inherent physiological or cultural differences” may help explain why “our gender and national origins may and will make a difference in our judging.” ”
There is a great deal of teeth-gnashing about double standards going on right now. Taylor sums up this complaint:
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
What goes unsaid here is that this would be the wrong thing to do, which makes it unclear why Sotomayor should be punished for saying something that does not seem in itself all that objectionable. I agree that a double standard exists, which tells me that we should not apply an unreasonable standard equally, but instead should try to police and stigmatize expression less obsessively. Note also that the supposed “claim of ethnic and gender superiority,” as Taylor puts it, is exceedingly weak, if it is there at all. The first quote can just barely be read this way if you really want to read it that way, and the second does not refer to superiority, but only to difference. Since when have people on the right denied or complained about recognition of the importance of real physiological and cultural differences?
Of course, the first quote expresses at most an aspiration or desire that her kind of experience would make her a better judge. Suppose for a moment that a conservative Catholic man in a similar position said that he hoped that the richness of his religious tradition would inform and shape his judgments that would more often than not help him to make better judgments than someone without that background. Such a person might reasonably and legitimately claim this. No doubt there would be a comparable freak-out in certain circles on the left that theocracy was on the march, while conservatives would declare it outrageous (indeed, the imposition of a religious test!) that anyone would object to a statement about the importance of the man’s faith to his formation and thinking. She is not asserting that Latinas are naturally superior judges, nor is she even saying that they are necessarily better on account of their experiences, but that she hopes that they would be. One might almost think that her recognition that impartiality is something to be pursued, but that it is never fully achievable, would be considered a refreshingly honest admission that judges have biases and are shaped by their past experiences. For a moment, imagine a pious Christian who expressed a similar hope that his faith would make him a better judge than an unbeliever. No doubt this would raise the hackles of all kinds of people, but it would no more make him a religious fanatic than Sotomayor’s rather mild comments make her a “racialist.”
On her vote in the Ricci case, it is fair to conclude that she and her colleagues came to the wrong conclusion as far as doing right by the plaintiff was concerned, but it also seems fair to say that federal law pushed them in the direction of reaching the wrong conclusion. An important point about the case that has been left out in many accounts is this:
In part, the city’s reaction was defensive. Because of the magnitude of the racial disparity on the exams, which would have ensured that white firefighters received the great majority of the promotions, an attorney for the city concluded that there was a strong likelihood of a lawsuit by African American and Latino firefighters if the promotion list generated by the test were used. Since Title VII was signed into law in 1964, it has been illegal for employers to use tests that have an unjustified racially “discriminatory effect.”
What this means is that the appeals court ruled against Ricci because it recognized that New Haven had tried to avoid a lawsuit that would have been possible and likely successful because of current law. In other words, the city tried to avoid falling afoul of the law, and the court did not penalize it for doing so. What is to blame in all of this is the law, rather than the judges who seem to have done what they were supposed to do. Indeed, what some people seem to have wanted to see Sotomayor do is to punish New Haven for trying to stay within the limits of the law, and for failing to do so she is declared to be an enemy of the rule of law. I submit that this doesn’t make a lot of sense.
Perhaps I have missed something, but the injustice done to Ricci seems in no small part to be a product of the law as it exists. However, under current law, even granting that the city of New Haven seems to have bungled the handling of the promotion test for its firefighters, it does not necessarily follow that throwing out the test results from the apparently flawed test was a violation of anyone’s legal rights. Presumably had Sotomayor found for the plaintiff, we would now be hearing about how all that infamous “empathy” caused her to side with the dyslexic man against a municipality–oh, the judicial activism!–and to open the latter up to long and costly litigation (which would, of course, demonstrate her abiding love of greedy trial lawyers, her desire to enrich fellow minorities and her hatred of patriotic firefighters, as so many people would be only too happy to tell us).
P.S. Also note that cheering “when justices fulfill their oaths and give everyone a fair hearing” is basically incompatible with complaining about what Sotomayor and the court did in the Ricci case. We keep hearing about how she thinks judges make policy–but instead, the court she sat on refused to make policy in this instance. Arguably, Ricci is one of those hard cases in which empathy is supposed to be crucial, but instead the result ended up looking a lot more like giving both sides a fair hearing and coming down on the politically incorrect (in the conservative view) side. We keep hearing about the dangers of empathy, but what was the denial of Ricci’s suit except an example of siding with the relatively more powerful (the city government) against the relatively weak (a dyslexic employee)? It seems to me that you can object to her position on Ricci’s suit, but if you do you can’t then say that she is guided by bleeding-heart sentimentality.
Exactly. Flipped on Hannity’s radio show for a moment in the car yesterday, and he characterized Sotomayor as being on “the extreme left” of the spectrum. Of course, he can’t possibly know this, but it was very telling. I’d read a day before the AP’s breakdown of various “hopefuls” (if one can call them that) and it seems Sotomayor has made few hot-button decisions and has virtually no record of outside activism or politics, as some of the others who were being talked about.
Hannity: “the extreme left.” In fact, I’m certain he used a superlative in there — most, worst, awfulest — but I can’t remember it and don’t want to stoop to his level by simply making it up.
Anyway. I’ve long wondered what would happen to Hannity/Limbaugh/etc. if, somehow, one could capture them and submit them to Enhanced Information Techniques — eyes glued open, reading Eunomia or Upturned Earth. For some semblance of “balance,” maybe even a bit of Rachel Maddow or All Things Considered.
Though we’d spare them Olbermann, which has got to be torture.
The Ricci thing assumes that we can’t mandate color blind laws from basic constitutional (and statutory) jurisprudence, which is politically inconvenient for the other team. The upshot is that the empathy business demonstrably amounts to weighing which litigants are most politically favored.
The Ricci case is filled with paradoxes. A multiguess test is a strange way to pick fire officers. Once you use one, though, it seems unfair to throw the result out because you don’t like the race of the winners. Just revive the old spoils system, under which the Republic did quite well, thank you.
It is remarkable, given her length of service, how little Sotomayor has written on the “hot” issues. In Ricci, did she seek to avoid leaving a paper trail? If so, one can interpret it as prudence or guile; take your pick.
My impression is that people are taking sides without knowing much. If it’s an Obama appointment, it must be bad (good).
As for the identity angle, the endangered species is white Protestant men, under whom the country managed to prosper for 200 years. There must be some around–search the putting greens, yacht and Elks’ Clubs. The “blue-tail fly” can’t have gotten them all.
“The Ricci thing assumes that we can’t mandate color blind laws from basic constitutional (and statutory) jurisprudence, which is politically inconvenient for the other team.”
I agree that it’s politically inconvenient for them. But if the problem is the bad state of current law, which Sotomayor happens to be following, she can’t simultaneously be quite the precedent-shredding, empathy-filled radical other people are claiming that she is. There may be powerful lines of attack against Sotomayor’s confirmation. I just haven’t seen any of them yet, and the more time that is wasted with these sideshows the less time there will be to talk about the rest of her record.
I’m curious about her views on civil liberties and executive power generally and during wartime in particular. Like Noah, I would find her views on Kelo much more interesting than what has been discussed so far. There might even be a way for the dreaded empathy to lead to overturning Kelo, given its potentially disproportionately negative impact on poor and middling households and communities.
There’s some kind of crazy assumption in the reaction to Sotomayor’s remarks that conservative white judges are not influenced by their own personal experience and background, and that their legal interpretations are the gold-standard of unbiased, purely objective legal reasoning. This is clearly nonsense. Judges are indeed influenced by their personal experience and background, and have often cited these personal facts in the decisions they render. Undoubtedly Sotomayor’s personal experiences, being quite different, will influence her interpretations of the law, because the law is supposed to take into account the real-world impact of legal decisions, and not judicate in a vacuum. Because judges are supposed to take these real-world impacts into account, their own real-world experiences are always going have an influence on their decision-making. As we can see already, white conservative judges already see the world in a certain way, and have no problem rendering decisions that come out of that way of seeing the world. It’s only natural that judges with different real-world experience will judge according to the real world as they have come to see it. I think what Sotomayor’s remarks about this possibly resulting in “better decisions” refers to is the notion that it’s not a good thing for the law to be dominated by one particular set of experiences and viewpoints, which then gets to cal itself “objective”, when in reality it merely reflects the world as seen by a particular group of people, and that better decisions are rendered when more of human experience is represented on the bench to create a balance. Sotomayor’s only crime here is in stating the obvious.
[...] Two smart posts over at Eunomia about the Ricci case, First, this: [...]
I think Goldberg is right about the status quo, in the same way that a broken clock is correct twice everyday. The reality for the years since the Warren court is that conservatives have wanted to have the kind of carte blanche that the Warren Court enjoyed to significantly modify constitutional jurisprudence. The fact that they haven’t enjoyed that even under the Rehnquist court, and will not under Stevens if Obama continues to get pick of replacements, is a sure sign of frustration.
I think gets into a larger point which I’ve hammered on before; that the status quo has been New Deal/Great Society legislation, jurisprudence, and government behavior over the past 60 or so years. If one defines radical as not being the status quo, its clear that Obama, and his nominee, are clearly in an almost unbroken line of individuals and policy that have reigned over America, with some notable deviations, for roughly a fourth or so of its history.
Robert’s I meant. If anything we should be concerned by the silent and growing minority of Justice’s with the same first name.
conradg, true dat; and well said. To me, the “activist” charge rests on the same kind of crazy assumption–that the law contains a luminous clarity, that can only be misapplied through evil intent. If that were so, there’d be damn little need for courts.
What goes unsaid here is that this would be the wrong thing to do, which makes it unclear why Sotomayor should be punished for saying something that does not seem in itself all that objectionable. I agree that a double standard exists, which tells me that we should not apply an unreasonable standard equally, but instead should try to police and stigmatize expression less obsessively
In a rare defense of Goldberg, what you’re saying only works if the other side agrees with you and decides to call a truce. As it is, they don’t and they won’t. So the only option left is to hit them where you can. In this case it will be pathetically ineffective, but there is some logic behind it.
Daniel, you’re always setting yourself up as the arbiter of right-wing taste and proportion. How dare we be concerned about one more anti-white person put into a position of power? But this is the battlefield; this is what we’re fighting for. True, some people may have gotten bored of affirmative action and someone like you may be totally numb to politically correctness for all your years in an academic setting, but most white conservatives out in the heartland who see this nonsense have not and are not impressed and are not willing to “contextualize” it or whatever it is you’re calling for above.
She’s not a racist so much as a typical Latin and Female chauvinist, who is looking out for her tribe and, more importantly, joining the big ANTI-WHITE-MALE COALITION that is the LEFT. Well, we should not permit this opposition to America’s traditional core and Third World tribalism to continue to advance, and we should oppose it with flags waving whenever it rears its head.
Chris, I’m really not trying to be arbiter of anything. I am offering my views, and I am trying, apparently unsuccessfully, to persuade people on the right that many of them are being foolish in all of this. Even if I were trying to be such an arbiter, virtually no one would care, and I have no way to enforce any standards. When I see embarrassingly weak arguments that contradict themselves or that actually partake of the assumptions of the opposing side, I will say so. Other people have “contextualized” her statement. I haven’t bothered to do much of that. If I thought her statements were objectionable, I wouldn’t keep that to myself.
Has it not been obvious that the people who are repeating all of the precious P.C. tropes in question have been Sotomayor’s critics? They are the ones demanding that an absurdly high standard of “sensitivity” be enforced. The manufactured outrage is there for all to see, just as it is with every diversity shakedown, which many of the same people also claim to find outrageous. They are the ones at the moment who are claiming that a few comments should destroy a public career. We all know that if the tables were turned they would be decrying the same tactics as an inquisition. If they have been unwilling to stand up to smears against their own allies in the past, because the stigma and pressure were already too great for them to resist, that’s no excuse to buy into applying the absurd standard to someone else.
No one here is saying that there should not be rigorous scrutiny of Sotomayor. No one here is saying that there shouldn’t be an effort to resist and oppose the nomination. They don’t have the votes to stop it, but there is no reason why Republicans need to vote to confirm her. There were rumblings from some red-state Democrats, including Ben Nelson, that they might go so far as to filibuster Obama’s nomination if the judge were too far left for them. Do you think the idiotic lines of attack on Sotomayor have made Nelson more or less likely to break ranks and oppose her nomination?
I’m not bored with the question of affirmative action. I think it is a remedy that, if it ever made sense, has become redundant and harmful. I think Ricci and his fellow firefighters who filed suit with him have gotten a raw deal, and conservatives should be pushing for an end to quotas and preferences of all kinds in hiring. That means that the thing to do now is to channel the energy that is being wasted making weak, ineffective attacks on Sotomayor towards pushing for legislative reform of the relevant statutes to make such outcomes less likely. That isn’t glamorous, and it isn’t as useful for fundraising (which a cynic might suspect is the main reason for most of the controversy), but it will actually address the problem that led to the wrong done to Ricci et al.
Watching conservatives unload on Sotomayor with these weak, easily-refuted arguments annoys me because they are first of all probably not going to stop her confirmation in any case, and in the process they are buying into all of the policing of thought and expression that only serves to empower their opponents in the long run. Woe to the Republican who now makes an innocuous comment that violates the new Sotomayor-inspired standard of super-precious sensitivity. What I can’t understand for the life of me is why conservatives want to protest a double standard by reinforcing a stigma that they otherwise think is excessive. Do you think that white men and conservatives are going to be better off in an even more hyper-sensitive atmosphere in which words are even more easily distorted and twisted to serve someone’s political turn? This is the rhetorical equivalent of getting into a spending contest with the left–whatever else happens, conservatives end up on the losing end. But, no, by all means, charge into the guns with flags raised high. That will show them.
“She’s not a racist so much as a typical Latin and Female chauvinist, who is looking out for her tribe and, more importantly, joining the big ANTI-WHITE-MALE COALITION that is the LEFT. Well, we should not permit this opposition to America’s traditional core and Third World tribalism to continue to advance, and we should oppose it with flags waving whenever it rears its head.”
I’m just wondering how this isn’t a racist attitude. Honest, true, but if having a latin female on the court means introducing an “anti-white-male” element, then how is it that having a vast majority of white males on the court isn’t keeping in place an anti-female, anti-minority “traditional core”? How is it that women and minorities are supposed to trust these white males to take their interests into account when interpreting the law, if the assumption is that anyone but a white male isn’t part of this “traditional core”, but instead represents “third world tribalism”?
It would seem to me that your attitude only affirms the notion that only by having actual minorities and females on the court can the court be assured to protect the rights and values of those people, who you define as apart from our “traditional core”? You seem to acknowledge that race and gender plays a part in how the court adjudicates, and that to keep the court adjudicating in favor of white males, we have to keep the court dominated by white males. Again, this is an honest admission, but clearly it affirms the power of race, gender, and background, more than the rantings of any chauvinistc feminist or minority rights advocate. If anything, it confirms that such people have been right all along, and simply cannot trust those who wish to stack the court with white, conservative males.
[...] Larison solves the problem of why the Ricci ruling was not the Worst Decision Evah (his entire post on Sotomayor is excellent): [...]