Michael Barone argues that Republicans should pursue opposition to centralization, particularly as it relates to the actions of the Treasury and Fed in recent months and years, and on the whole I agree. This is what I have been calling for since last autumn. It helps Republican credibility somewhat that even in the waning days of the Bush administration more House Republicans rejected the TARP than accepted it, but Republican leaders and the Bush administration were necessarily identified so closely in public with the measure that it is virtually impossible for the same House and Senate leadership to rail against it now. As an earlyandfrequentcriticofthebailout, I welcome Barone’s recognition that populist opposition to the bailout is the right thing to do as a matter of politics and policy. There are several serious obstacles that make it difficult to take this route, not least of which is the genuine obliviousness of most Republicans to the dangers of the housing bubble when it was expanding, their long record of treating Alan Greenspan as an all-seeing oracle, and the unwillingness to accept that the bubble and the enormous risk-taking that went along with it were in no small part consequences of decisions taken by Bush and Greenspan.

One the reasons why the GOP has so little credibility left is that its members and its spokesmen spent the better part of the fall concocting exaggerated, if not absolutely ridiculous, narratives that put all of the blame for the crash solely on the other party, which had not been in power during most of the period in question. One might be able to understand, if not condone, this on account of the timing right before a general election, but the infuriating thing is that they actually came to believe that these tall tales were correct and they have continued to repeat them as if they were true. Unanimous House GOP opposition to the stimulus bill seemed unwise to me at the time because it suggested that the party had learned nothing from its electoral repudiations, and more than this it suggested that the party was unwilling to take responsibility for decisions that its leaders had endorsed over many years. The attitude seemed to be that opposing “wasteful spending” would have some sort of rejuvenating political effect. The party leadership, compromised for the most part by its past support, had no interest in fighting Obama on the financial sector bailout. Having missed the opportunity to own up to their mistakes, the party leadership wanted to pretend that its compromises in the fall would be forgotten and that it would receive credit for resisting Obama’s spending. Failing to take the right stand when it would have stopped the creation of the TARP and done them some good politically, the GOP leadership in Congress capitulated to one of the most unpopular Presidents of all time in support of a bad policy. The leadership then turned around four months later and pledged a fight to the death against a new, fairly popular President on a spending bill that, for all its real flaws, was far less objectionable than the bill they had helped to pass the year before. In short, the leadership took the wrong side on the obviously winning issue of resistance to the bailout and then took the right, but politically toxic side in the stimulus debate, all the while believing that it had behaved both responsibly and cleverly. If there is to be any credible Republican opposition to centralization, it is not going to come from the current House and Senate leadership. The leadership must be replaced. It will be as clear a break with the Bush-accommodating ways of the past as the GOP can manage at the moment, and it could bring to the fore a new set of leaders in the minority to craft an agenda, or for that matter simply an alternative budget proposal, that will not be immediately laughed out of the room.

Victor Davis Hanson writes one of the odder critiques of affirmative action I have seen in a while:

Indians, Basques, Greek-Americans, Arab-Americans, Japanese-Americans, and Chinese-Americans-regardless of their appearance or superficial distance from the dominant “white” tribe” -are probably not going to receive special consideration to trump strict criteria like GPAs and test scores when applying to medical or law schools. American-Indians, Mexican-Americans, and African-Americans are. That any individual of the former group might in fact be far poorer than any member of the latter group matters not at all. That any of the former cadre may also be more instantly recognizable as non-white matters likewise not a whit.

I see what Hanson is trying to do here. He is trying to demonstrate that affirmative action is not a fair system that universally remedies socioeconomic disadvantages of ethnic and minority groups, and I understand that he is not doing this to argue in favor of a more universal system of “positive discrimination.” However, his argument seems to me to be as flawed as the occasional non-interventionist complaint that humanitarian interventionists ignore any number of other atrocities and civil wars around the world. Hanson’s “what about the Punjabis?” plea, which is, of course, entirely rhetorical and not a real complaint about any injustice being done to Punjabis, is the equivalent of the non-interventionist retort, “Well, what about the Congo?” Indeed, what about the Congo? Everyone in the debate knows that the non-interventionist isn’t actually saying that the government ought to be more activist in its overseas deployments and uses of force, and the humanitarian interventionist isn’t going to be embarrassed into abandoning one of his unjustified campaigns just because he cannot, as of yet, advocate for additional campaigns elsewhere. Hanson’s argument will be no more effective, and will instead lend strength to the defenders of the current system.

The non-interventionist raises other humanitarian disasters to show the inconsistency and arbitrariness of military interventions, which usually have little or nothing to do with humanitarian motives and are almost always driven by other, more questionable concerns, but the danger is that the interventionist will readily see through this and note that the non-interventionist has absolutely no interest in meddling in Congolese affairs, either. Having implicitly granted for rhetorical effect the interventionist assumption that Washington must act to halt this or that foreign conflict, the non-interventionist has given up on a far more powerful argument against interventionism as such. This sort of argument saps the foundation of the non-interventionist view, whose strongest claim is that it is inherently wrong and contrary to American interests to interfere in the internal affairs of other countries. In the same way, Hanson’s argument here saps the strongest claim that can be made against affirmative action, which is that it is inherently wrong and ultimately harmful to the interests of all involved to take such factors into account for anyone.

The force of Hanson’s protest here dissipates completely once it becomes clear, as it would very quickly become clear, that he wouldn’t want positive discrimination for the Arab or Indian-American, either, even though they might very well face social and economic discrimination because of their background and because of negative stereotypes about Arabs and South Asians that we all know are prevalent in no small part because of “war on terror” propaganda. Indeed, the main effect of this sort of attack on affirmative action isn’t to make a supporter of these measures conclude, “There shouldn’t be any system of preferences or positive discrimination,” but instead the supporter will say, “We haven’t gone far enough in extending this arrangement to all those who need it.” For a laugh, the supporter might add, “Even Victor Davis Hanson agrees!”

Hanson’s litany of the woes of presumably deserving cases that were not taken seriously by the current system at first reads like any bleeding-heart account of social injustice, but at each point in the article the reader is compelled to ask what kind of consideration Hanson thinks the “dark daughter of the Kurdish taxi driver,” his Coptic student and the Okie-descended poor whites deserve. One assumes that Hanson would insist that merit alone should determine outcomes, in which case his Coptic student and the Okie-descendants might do no better, but what would stop a defender of the current system from taking the same examples and saying, “Yes, Hanson has a good point here–we need to create an even more elaborate, detailed system that can take account of the needs of our increasingly diverse population”? As far as I can tell, nothing at all.

One does not make the case for eliminating a policy by saying that it is insufficiently coherent, consistent and universal. Its defenders will simply say, as they have said time and time again, “Mend it, don’t end it,” and will propose to “rationalize” the existing system to remove the flaws Hanson has described. Instead, one should argue that such a policy is fundamentally misguided and wrong. Someone might say that this is a simple sort of argument, but it is all the more compelling and concedes far less for that reason.

On a final Sotomayor-related note, Hanson makes the following incredible claim:

Unfortunately, unlike a Condoleezza Rice, Colin Powell, or Alberto Gonzales, President Obama has embraced identity politics in unprecedented fashion-and we are reaping what he has sown. In these first days of the Sotomayor nomination, we are not discussing Justice Sotomayor’s judicial competence as much as her Latina identification-and the political ramifications of such tribalism.

Who is this “we” he’s talking about? It’s true that these have become central parts of the discussion about Sotomayor. Hanson neglects to mention that they are central to the discussion at this point because her critics on the right have obsessed about these to the exclusion of almost everything else. If this is what “we” are discussing, it is because so many of Hanson’s colleagues made these the main topics of discussion.

Returning to the Sotomayor discussion one more time, I wanted to respond to something else Jim Antle said. He wrote:

The practical result of eliminating color-blind justice will not be that all Americans celebrate their rootedness in unique, decentralized communities instead of being deracinated, atomistic individuals. And in terms of political norms, refraining from criticizing Sotomayor will not keep conservatives from being called racist when they criticize immigration policy, racial preferences, or anything else that gets conservatives called racist.

It is questionable whether “color-blind justice” is actually in danger here, or at least it is questionable whether it is in danger because of a judge such as Sotomayor. More to the point, it is much less likely that Americans will be able to “celebrate their rootedness in unique, decentralized communities,” if they are going to be able to do this at all, if Americans of all backgrounds are confronted with social stigma and ostracism for expressing pride in their roots and communities. The question, then, is why those conservatives who presumably could see some virtue in “rootedness in unique, decentralized communities” should be so scandalized by statements that reflect positively on particularity and diversity. Indeed, one of the main things that is so deeply troubling about official celebrations of diversity is that they are so very often wedded to programs of political centralization and uniformity.

As for the other point, it is true that refraining from making baseless charges of racism against Sotomayor will not stop other baseless attacks against conservatives from being made. However, it does seem all but certain that making such baseless charges one of the main lines of attack against Sotomayor will make it far more likely that even those conservative arguments that were once given the benefit of the doubt will be willfully misread in just the same way that critics seem to have been misreading Sotomayor’s statements. If there are already some conservative arguments on immigration, affirmative action or other policy questions that are frequently dismissed and ridiculed as racist, how many more will be tarred with this label as a result of conservatives’ having dramatically lowered the standards of what counts as a racist statement? How many conservative pundits and radio talk show hosts will wind up on the wrong side of the sweeping, unreasonably broad defintion of racism that conservatives are now employing to try to trip up Sotomayor? Perhaps most telling of all, this smear on Sotomayor will not advance conservative causes one inch, but will boomerang and harm them significantly, and those who recklessly flung these charges should not be surprised if they come back to haunt them later on.

Whenever I come across people like Dreher and Friedersdorf piously attacking movement types, it miraculously makes me want to stick up for the Dittoheads (quite an accomplishment.) ~Richard Spencer

Let’s suppose for a moment that I understand why Richard wants to do this. In this view, there are the “wishy-washy” and the strong, and Richard seems to define who counts as the “wishy-washy” according to the tendency to criticize members of the conservative movement. That is, they are “wishy-washy” in that they are not always willing to be team players and keep their mouths shut. As far as I can tell, it doesn’t make the critiques Rod and Conor have made any less correct, nor does it actually make “the Dittoheads” deserving of his defense. If the instinct in these instances is to rally to the cause of “the Dittoheads” against their often more-reasonable detractors, it raises the question of what alternative the alternative right is actually offering.

As for the question of proper language, there was a time when conservatives wrote books called The Ethics of Rhetoric. It might not hurt to reacquaint ourselves with the sort of restraint of the tongue that the ancients believed was imperative for bridling the passions and cultivating wisdom and virtue. I think it fair to say that Weaver would have found crude and insulting language directed toward women not only appalling in itself, but would have taken it as evidence of personal moral failure and deep civilizational rot. Those sympathetic to Levin’s better ideas, assuming that he has them, ought to have passed over this episode in an embarrassed silence and tried to limit the damage rather than celebrate his horrendous behavior as if it were an example to be imitated.

P.S. On a related point, I wanted to say something about Richard’s description of a “Jacksonian conservative”:

He might try to make time for the Permanent Things on occasion, but mainly he likes attacking lily-livered liberals.

To which John Lukacs had the answer 25 years ago:

Even though intellectuals of the American conservative movement were often more generous and less narrow-minded than were liberal intellectuals, they seldom hesitated to ally themselves with, and to seek the support of, some of the most uncouth and slovenly minded people and politicians. That was just the trouble. As Jonathan Swift said, certain people “have just enough religion to hate but not enough to love.” Many American conservatives, alas, gave ample evidence that they were just conservative enough to hate liberals but not enough to love liberty.

For some reason, Richard has penned a glowing defense of the antics of Mark Levin and Robert Stacy McCain. Richard mentions near the end:

Republicans have a tendency to sound like Ron Paul when they’re out of office, and then act like LBJ once they get elected.

The two people he defends in that post epitomize the kind of conservative that makes this possible: tribalistic in partisan loyalties, provocative without being interesting, utterly lacking in imagination and completely conventional in their political enthusiasms for pseudo-populist Republican politicians. Furthermore, to the extent that their pugnacity trumps any actual policy arguments or ideas and they embrace political organization centered on politicians that are “one of us” (e.g., Palin), pro-life welfarism, which Richard finds so intolerable, is exactly what their sort of conservatism will get you. They have little or nothing of their own to offer policymakers when it comes time to govern. They will be able to sneer at the meliorists who end up advising on policy, but they will not be able to do much else. Even when they see a foreign war to be a mistake, they will not have the conviction to oppose it openly once the war begins because of ridiculous nationalistic attachments to “strength” and projecting power. Conservatives have been caricatured as substituting macho posturing for political thought, while McCain takes pride in doing that practically every day of the week.

Richard concludes:

Whatever our disagreements, I’d take “Levin and puerile Jacksonians like Stacy” over the Crunchies any day of the week.

He is welcome to them, but he might consider that in preferring them Richard is not going to be pushing the current GOP to its doom. On the contrary, by choosing the cheerleaders and enablers of that party, he is helping to sustain the very things that he and his alt-right colleagues claim to despise.

Jim Antle replies:

Okay, here is how a reversal of the statement would read: “I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina who hasn’t lived that life.” The title of the speech? A “White Judge’s Voice.” (Or maybe a “White Judge’s Burden.”)

I am willing to bet that most people would regard the above statement as racist. If criticizing Sotomayor means we don’t get white judges who talk like this, even really conservative ones appointed by Republican presidents, I’m not really sorry about that. Sotomayor’s case is obviously more nuanced — there actually is a Latin culture and identity of which she is a part and entitled to celebrate, while a white person talking about the richnes of his whiteness (as opposed to his Scottish, English, Italian or even Southern heritage) is living in a white nationalist fantasy world — but as the country grows more diverse, the concepts of particularly white, black, and brown colors of justices become even less desirable. Sotomayor does not have to be an actual separatist or anti-white racist to contribute to a style of judging where race looms larger in our country’s legal system.

Jim might very well win that bet, because the word racist has been so overused and abused over the years that it is fast approaching the status of the word fascist to mean “someone or something I don’t like.” It has become one of a few catch-all labels used to express contempt, and it has become less of a descriptive term and more of a pejorative one. What most people would think about that sentence is a product of the social conditioning they have received for decades, which is the conditioning that conservatives normally find so irritating and which many are now reinforcing to back up an otherwise rather weak argument against a single Supreme Court nominee. Jim might continue the thought by saying, “Most people would regard the above statement as racist…and they would be wrong.”

If Sotomayor’s case is more nuanced, why don’t we use a more nuanced comparison when reversing the statement? If being a part of a certain white ethnic group is something that one is “entitled to celebrate” in a similar way, would we consider it racist for an Armenian or a Russian or German-American to express a similar pride in his heritage and express the hope that it would inform his judgments in such a way that he would be a better judge than someone not from that background? Perhaps the son or grandson of Russian emigres has a more keen appreciation for the rule of law because his family escaped from the grip of a totalitarian state; he does not take for granted what most of us and our ancestors have always known. Perhaps the grandson or great-grandson of German immigrants would be more attentive to the predicament of ethnic communities that are tied in the public’s mind with a foreign enemy in wartime. For that matter, perhaps the descendant of old-line English settlers deeply values the American constitutional heritage because he sees it as being inextricably interwoven with the heritage of his own ancestors, and so his support for the fundamental law has added significance for him. One could come up with other examples, but I think these already make clear that the statement in question–on which so much of the resistance to Sotomayor seems to be based at this point–may be many things, but racist is not one of them.

To reduce her full Berkley [sic] remarks to an inoffensive paean to experience and the limits of impartiality strikes me less as a fair-minded reading than an exercise in wishful thinking. ~Jim Antle

Jim must be one of the few who has looked at her full remarks and still concluded that there was something deeply wrong with them. Rod came to quite a different conclusion after reading the entire speech, but no matter. Readers can judge for themselves whether they think the speech is an exercise in “racialist and separatist” rhetoric, or whether it is something rather more benign. In any case, Jim wants to stress not so much what she said, but where she said it and to whom. That’s fine as far as it goes, but if the tables were turned my guess is that conservatives would see this not so much as contextualization as an attempt to prove guilt by association.

I would go farther and say that I think she wasn’t just making an “inoffensive paean to experience.” Horror of horrors, she was expressing pride in her particular identity, much as many conservatives claim they wish they could do more freely with respect to theirs without being called racist or racialist or some other derisive label. What is their solution? To call Sotomayor by a name that they usually regard as a bludgeon unfairly used against them all the time. Not only will this gambit fail in the immediate confirmation battle, but it will ensure that the limits of expression become even more constricting and stifling. This is what I don’t understand: why would conservatives want to make it easier to categorize innocuous statements as racist and/or racialist? There is virtually no social policy debate in which matters of race are not involved to some degree, and many, if not most, conservative social policy views already have to meet a rather exacting standard to avoid such charges. Why make that standard even more demanding and impossible to meet? Why water down the definition of racialist such that it seems to include any and all acknowledgment of the significance of these differences? How well do you suppose conservative arguments in various policy debates will fare in the future if even Sotomayor’s unremarkable Berkeley speech must be described as racialist? Instead of giving more benefit of the doubt to all and loosening the conventional strictures on expression, we hear instead the call to clamp down even more obsessively on everyone. This is the most hare-brained application of “if you can’t beat ’em, join ’em” I think I have ever seen.

The most significant part of her speech from eight years ago has scarcely been discussed at all, which is her acknowledgment that neutrality and objectivity do not exist. One should strive to minimize the role of bias, but it is ineradicable. More than that, it sometimes serves a valuable social function–surely, students of Burke can understand this. The people who actually find this shocking or dangerous reveal themselves as believers in pleasant fictions left over from the 18th and 19th centuries. Those who understand that everyone is from somewhere specific, that everyone is part of a particular tradition, heir to a certain background and shaped by the places where he has lived and the experiences in those places, and that universal Man does not exist anywhere in the world, are not troubled by this. For us, it is a simple restatement of the obvious. The idea that where we come from matters deeply and defines who we are is hardly one that conservatives should find outrageous.

Update: Matthew Miller has an interesting response:

Larison is undoubtedly right that we can’t ever be entirely separated from our background; but if there’s any sphere of government where we simply must try, the judiciary is it. Sonia Sotamayor isn’t a racist. She simply doesn’t understand that she’s meant to be a bulwark against the tyranny of caprice, not an advocate for it. That is reason enough to oppose her confirmation without dredging up the racism charge. After all, to paraphrase John Adams, we ought to be a nation of laws and not of wise latina women.

Second Update: Jim adds in a follow-up post:

One other point about Sotomayor’s comment: it illustrates the extent to which the logic of racial/ethnic identity politics can cause people to say or think things they would clearly recognize as racist in other contexts. If changing the words “Latina” and “white man” around would change your view of the sentence, then perhaps it is time to examine some of your assumptions.

I suppose it would be, but then the point here surely ought to be that the statement is not racist no matter which way you phrase it. It might be any number of things, not all of them necessarily good, but it isn’t that. In this case, reversing the terms doesn’t change this about the sentence, so why are conservatives reading it as they assume (perhaps wrongly) that Sotomayor would read the reverse? Indeed, wouldn’t they say that she would be wrong to read the reverse in the way that they are currently reading her statement? Doesn’t that drive home how futile and ridiculous this line of attack is?

Apparently, there is nothing so worrisome as a judge biased in favor of the status quo. Fortunately, we have Jonah Goldberg to tell us why:

The “empathy” thing strikes me as a warrant for bias (which is an ancient problem) not judicial activism (a more recent, or at least more specific, phenomenon). And, as it applies to identity politics, it is a form of racism and/or sexism. For instance, Obama wants judges to side with members of the Coalition of the Oppressed in the really tough cases. That needn’t be a call for judicial activism. Rather, it’s a call for bias — in favor of the status quo.

Indeed, if you look at the Ricci case, Satomayor’s actions seem exactly like a reactionary defense of the status quo. The existing legal regime is to her liking because it sustains a racial spoils system that discriminates in favor of preferred minorities. The Ricci case threatens the existing system. Sotomayor’s shameful attempt to bury it aside, was her substantive ruling against Ricci judicial activism — making policy from the bench — or was it the equivalent of judicial wagon-circling? It seems to me it was closer to the latter.

By “judicial wagon-circling,” Goldberg seems to be referring to not making up the law as they go and not overthrowing precedent. After all, isn’t a judge normally supposed to be biased towards the status quo, the (more or less) settled state of law, rather than looking to engage in social experiments from the bench? Wasn’t that one of Romney’s constant refrains that won him so much approval in mainstream conservative circles? Isn’t that one of the key planks in almost every argument against the actions of various state judiciaries concerning gay marriage? Isn’t a bias in favor of the status quo usually an important part of judicial restraint? Was the California Supreme Court recently engaged in “judicial wagon-circling” to defend the status quo on Proposition 8, or were they respecting the constitutionality of a constitutional amendment passed by popular referendum? Ah, yes, the catchy slogans don’t seem so clever anymore, do they? If Sotomayor is biased in favor of the status quo, how exactly does the empathy for the “Coalition of the Oppressed” work? After all, to be biased in favor of said “Coalition” would entail altering the status quo to their benefit (hence the fear of radicalism, the influence of identity politics and concerns about empathy), but to be biased in favor of the status quo would then be to stand in the way of benefiting the “Coalition.”

The essence of Goldberg’s complaint–complete with the pejorative use of reactionary–is that Sotomayor is a sort of liberal dinosaur defending the established order against new challenges and threats. The problem with her, if we took this seriously, is that she is not sufficiently radical enough, in that she respects the structure of precedents and statutes that has been built up over the last several decades and does not propose, as her critics would like to have her do, to embrace a simple approach to equal protection. One might ask the following at this point: if Ricci himself was not challenging the constitutionality of the relevant provision in federal law, why would anyone have expected Sotomayor to volunteer to say that it was unconstitutional?

There is something eerily similar to conservative reactions to the Ricci case and the common conservative reaction to the rulings of the courts in the Schiavo controversy: the actual substance of law in the matter was fairly straightforward and clear, but it yielded a result that many conservatives found unacceptable, and they therefore sought all manner of political remedies to undo the reasonable decisions of the courts. Rather than locating the problem in the law or in the unusually difficult circumstances of the case in question, conservatives determined that it was the judges who were the problem. There is also a similarity in the schizophrenic reactions to Sotomayor (defender of the bankrupt system! no, crazy radical! maybe both!) to the way conservatives vacillate between accusing Obama of being a hypocrite and liar (“he promised change, but he’s just continuing Bush’s policies”) and freaking out about the approaching dictatorship of the proletariat that he will supposedly usher in. For my part, I have not had any illusions that Obama was anything other than a conventional establishmentarian, and this was obvious all along, and in choosing Sotomayor he has shown yet again how he can make a rather boring status quo decision seem much more momentous and remarkable than it is.

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.