Perspectives
As promised, here is the last Sotomayor post in my discussion with Jim Antle. Concerning Jim’s remark that we have begun repeating ourselves, I agree that it does seem as if we have spent much of the time talking past each other. It is almost as if our perspectives were informed by sufficiently different experiences that shape how we analyze and judge the very same materials and facts. Acknowledging this as a real factor in judgment does not make one a believer in things called Antle Logic and Larison Logic. It also doesn’t mean that there is not an interpretation that is more valid than another–not all frameworks are equal. One reading does do more justice to the text than the other, but it seems that consensus is unreachable at this point. From each perspective, the correct interpretation seems obvious, and it is mystifying to each one why the other person cannot see it. Meanwhile, the pitfalls and dangers of the distorting effects of the other’s framework are only too clear. Jim is wary of a breakdown of a certain universal rationality, and therefore finds in Sotyomayor’s remarks a defense of “a specifically Latino way of judging.” I tend to see far less danger arising from a synthesis of the particular and the universal, and so I do not detect any hint that she has posited the existence of “a specifically Latino way of judging” in the way that Jim seems to mean it.
She has said that her background informs her perspective, which seems like a commonplace observation. She described it using racial and gender categories, which is what makes people on the right nervous because they are wary of how these categories have been employed by people on the left over the last thirty years, but her remarks were actually unobjectionable. The overreaction to her statements mirrors almost perfectly the hysteria surrounding some of McCain’s campaign commercials last summer. Back then, it was liberals who were imagining racist tropes and symbolism where none existed, because they were convinced that the GOP simply had to be using them against a presidential nominee with Obama’s background. Conservatives who have been berating Sotomayor over this speech are making arguments that really are as unfounded as those made against those commercials last year.
A more important factor, then, is that Jim and I seem to be arguing in two very different frameworks, which is a problem I have mentioned before in connection with the debate over the relationship of doubt and faith. Once again, here is Fr. Behr discussing the Arian controversy:
This is an important point: at stake are different paradigms, within which doctrinal formulations take flesh. The similarity of terms and expressions, yet difference of paradigm or imaginative framework, explains why most of the figures in the fourth century seem to be talking past each other, endlessly repeating the same point yet perennially perplexed as to why their opponents simply don’t get it.
I imagine that Jim and I are equally perplexed by the other’s argument for this reason. The comparison is not exact, but I think it might be useful for thinking about significantly different structures of thought that can emerge within a religious or ethnic group, to say nothing of different structures that can develop between them. This can be understood entirely at the level of culture rather than nature. Despite our many points of agreement on politics and policy, I keep getting the impression that Jim and I aren’t just reading a few statements in different ways, but that we are pitting significantly different frameworks against one another and so we inevitably end up going round in circles. This becomes very frustrating for everyone in the debate. Julian Sanchez has more bluntly summed up his frustration:
For one, it is basically impossible for me to believe that anyone with two functioning brain cells could read the “wise Latina” speech in full and find the notion that it’s “racist” anything but laughable.
As understandable as Sanchez’s anger may be, this is not entirely fair. Given what Sanchez sees as manifestly unfair treatment of Sotomayor, he may not be terribly concerned about this, but it is too easy to write off her critics so quickly. On this question, they are clearly wrong, but again the problem is that it is not at all clear for those working from their assumptions. Ironically, even though the very intractable nature of the debate confirms Sotomayor’s point about different backgrounds and perspectives inevitably informing judgment (much as Jeffrey Lord’s autobiographical account explains why he interprets Sotomayor’s remarks so wrongly), the truth of her observation seems to guarantee that her critics will continue to find deeply offensive what is quite unobjectionable. Evidently, intelligent people can and do read the speech and take this interpretation seriously, and they in turn find the failure to see the merit in reading it this way to be “bizarre.” This seems baffling to Sanchez, as it does to me. I doubt it will work, but I will make one more attempt to discuss this in a way that will not baffle Jim.
Decentralists like to talk about place, and they usually prefer local control over as many things as possible. What does this have to do with anything? After all, why do I keep bringing up references to decentralism in a debate over a Supreme Court nominee? It is certainly not because I think that Sotomayor has any significant enthusiasm for the Tenth Amendment, but because those who are interested in decentralism and localism have no reason to employ universalist assumptions that one’s background and history are and ought to be irrelevant in judgment. If Sotomayor is invoking heritage and experience for different purposes than they would and if she is operating in a very different tradition, that should not prompt them to deplore such statements. I don’t assume for a moment that Sotomayor has any sympathy for decentralism (she is, after all, a federal judge), but those who do have sympathy for it shouldn’t want to employ arguments that, if accepted, would significantly weaken the case for decentralism.
What is one of the main arguments in favor of decentralization and local control? Of course, distributing and spreading out power to prevent it from becoming concentrated and dangerous are important, but one of the practical arguments in its favor is that locals understand their own needs and problems better than more distant officials. They are more likely to craft rules that accommodate conditions in their area and might be poorly suited elsewhere. Familiarity with local conditions informs judgments and decisions, and ensures that the quality of those decisions more often than not will be better than those made by people unfamiliar with those conditions. Even our hawkish friends can appreciate the appeal of this–these are those famous “conditions on the ground” to which Presidents always pay ritual homage. Somehow, what counts as necessary and vital for good decision-making in every other sphere of government is now not merely of no value in judging, but it has somehow become a serious liability.
Someone will say, “Yes, but a lot of what you’re talking about has to do with self-government and that’s part of the political process. Judging is different.” Indeed, judging is different, but not absolutely. If anything, the judges are under an even greater obligation to attend to both what the law requires and the specific circumstances of each case. That is, they should make themselves as familiar as possble with the conditions and factors that led to the case before them. How is it anything other than a benefit to have judges who could offer some partial insight into elements of the case that might remain opaque or hidden from the others because of their different experiences and perspectives?
It seems that you read the Sotomayor sentence, or particularly the word “Latina,” as referring to an ethnicity or local interest). Antle and the others read the sentence, or the word as referring to a Race. They see “Latina/o” and “White” to be equivalent categories, and because they don’t question that someone who says they’re wiser because they’re white is a racist, that makes Sotomayor a racist.
I would personally say that I don’t think Latino is a “race,” (if race is defined completely by what your parents are, as innate and immutable) and that you can’t really be born into it like you can be born White or Black (by the US experience of these terms), and that “Latinos” generally share a lot more than mere congenital attributes, and that by reasonable definitions they would constitute an “interest” or “ethnicity.” “Local interests” are allowed to talk about how good they are, superior to other interests even. This is something we’re not allowed to do when we discuss race, or other plainly innate and personally irrelevant qualities.
Daniel, this concept of different frameworks arises everywhere. Overcoming this potential roadblock to communication can be extremely difficult.
I think the answer often lies in turning from logic to storytelling. If we can find a way to explain our POV in terms of a story, we can often more clearly illuminate our agreements and our differences, and perhaps find a common framework within which we can discuss them.
For me, the Alito reference is that kind of story. Both people spoke to their experience as affecting their judgment, and for me, I see Allito more clearly now. Yet, for others, the “white men” reference is a complete road block to seeing Sotomayor’s words as comparable in intent.
When I look at the privilege represented historically on the SCOTUS, I think Sotomayor is completely correct – she will have a better POV with which to assess the difficult questions addressed by the SCOTUS. It is possible, now that I see a bit of Alito’s story, that I will be more inclined to believe that he, too, has an enriched POV because of his background.
Not having read Antle, I can’t comment on his frame of reference for Sotomayor’s speech. However, if you take the “wise Latina” and the “white men” out of her speech, it is nearly identical to Alito’s. Perhaps, and maybe you have done this already, you can focus on your’s and Jim’s differing interpretations of those few words, and talk about how you each create from those words a story of how Sotomayor will act in the future. If you can share stories, maybe you can reach understanding, if not agreement.
Sometimes, understanding is all we can achieve.
Jake
I think the answer often lies in turning from logic to storytelling.
Yeah that’s exactly what we need more of, especially in the government. Are you an inner-city public school administrator by any chance?
However, if you take the “wise Latina†and the “white men†out of her speech, it is nearly identical to Alito’s.
I have also noticed that if you take the “meat” and the “cheese” out of a cheeseburger, it is nearly identical to a plain roll.
What planet are you from?
I think the answer often lies in turning from logic to storytelling. If we can find a way to explain our POV in terms of a story, we can often more clearly illuminate our agreements and our differences, and perhaps find a common framework within which we can discuss them.
I think this makes sense in terms of explaining things to an audience, or putting your own experiences and perspective in a context that other people can understand. I’d be wary of it as a judicial philosophy, but so far no one’s been able to present a shred of evidence that Sotomayor’s actual conduct as a judge is negatively affected by her (accurate and benign) sense of herself.
Yeah that’s exactly what we need more of, especially in the government. Are you an inner-city public school administrator by any chance?
As a practical matter I do think there are limits to how much you can accomplish by appealing to facts and figures. Trying to find common ground with opponents (and even friends) can be a tricky process. Demagoguery and sentimentality aren’t good, but trying to explain where you’re coming from seems like a perfectly reasonable thing to do. I don’t think that means throwing logic out the window, but some acknowledgment that your opinions are informed by your experiences is helpful.
Again, I don’t think that’s an appropriate judicial philosophy but, also again, there’s no indication that Sotomayor has ever decided a single case based on ethnic solidarity, a desire to stick it to the man, etc. If there’s some allegedly sinister pattern to her jurisprudence that someone wants to bring to our attention I’d be happy to take a look.
I will confess upfront to being a “liberal”, or something in that general direction, so folks can approach my comment with that in mind (I am disappointed with Sotomayor for “other” reasons).
I’m sorry, but it is difficult for me to accept Jim Antle’s objections as a good-faith reaction to possible racial-ethnic prejudice. Sotomayor is a statist, generally status quo judge. The fact that she is being attacked on such ridiculous grounds is indicative of rank partisanship and tribal identity, rather than any genuine concerns about her judgment.
It would be a different matter if critics were pointing out multiple problematic or controversial passages from opinions or dissents that suggested that her actual decision-making was seriously flawed. Instead there is this endless parsing over the possible implications of what she said in one speech, in a specific context (the context of which is largely ignored).
I am moved to respond, not because of deep-felt support for this nomination, but in spite of it. Bring on serious objections; try to educate the general public about what positive goals you wish to achieve, and why this candidate falls short. Ultimately, anyone arguing against her because they think she will be unfair to Whitey is either a paranoid racist, or trying to incite the outrage of paranoid racists. I am not familiar enough with Mr. Antle’s writings and opinions to determine to which category he belongs.
It is also interesting that this speech has taken such an importance now, but not when she was confirmed for the US court of appeals for the 2nd circuit. Many who oppose her with characterizations such as “intellectual light weight,†“racist,†“reverse-racist,†“Quota Queen†did not seem to have this much problem when her nomination came up for the 2nd circuit court. Especially given the basis for their objection was available at that time.
Now, as far as her record from the bench goes, Newt Gingrich has now acknowledged that her rulings have not shown any evidence of racial bias and walking back on his “racist” comment.
Rush Limbaugh’s legal eagles have done their research and told him the same thing (but his theory is that she had higher ambitions and knew that people would look at her actual decisions). He now says that even though he still believes she is a racist, he can be persuaded to support her if he can be convinced that Sotomayor, who is a Catholic, can help overturn Roe v Wade (since one can deal with racism and bigotry in other ways according to him, possibly canceling them out with help from other justices). He reconfirms again: “If she is a pro-life racist, I may have to change
my view.”
Such is the state of the Republican party today.
Judges often “evolve” in the Supreme Court, so no can positively assert that she is going to rule this way or that way from the Supreme Court or convince the other justices to make discrimination against a particular race the law of the land.
As an example in the other direction, here is a footnote Justice Stevens wrote in “Fullilove v. Klutznick”:
Indeed, the very attempt to define with precision a beneficiary’s qualifying racial characteristics is repugnant to our constitutional ideals… … If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935, translated in 4 Nazi Conspiracy and Aggression, Document No. 1417-PS, pp. 8-9 (1946):
That was in 1980. Now he essentially says that he has “learned on the job” and his position on affirmative action has “evolved.”
I do not know why the senate Republicans are urged to pick a fight with a formidable political opponent on the confirmation of Sotomayor. This is something they are going to lose should they chose to fight it tooth and nail. I do not believe this particular battle is worth it. It could have been worse from Obama. If one purely goes by her record today, she may not do much worse than Souter.
The crux of Antle’s argument is that Sotomayor’s views in such an extreme way that the “Latina” aspects of her background will outweigh rather than enhance the fair adjudication requirement of her position. This could be a valid interpretation of her statement if it were supported by any of her legal decision. There, however, conservatives are starting to realize that she has been a fairly straightforward and un-ambitious judge. Even the Ricci case, which the folks at The Corner have whittled down to “a white guy got fired because he’s white”; is actually a fairly strict decision based on precedent (even if you disagree with how Ricci was treated, you should readily accept Sotomayor’s decision and let it run through the appeal’s process so that all of the other similar decisions are stricken from precedent).
Frankly, until Antle and all of the others who have been chafed by the “wise Latina” statement actually present evidence from the myriad of cases she has presided over, their interpretation is relegated to a straw-man argument.
As a side note, I think we have a duty to amplify Julian’s point that simply replacing the nouns in a sentence in a grammatically correct way does not a point make; i.e. substituting “white” for “Latina” and “woman” for “white man” stopped being an argument about the same time precocious high-schoolers stopped hypothesizing about a “White Entertainment Television”.