May 27th, 2009

Judging judges: the wise latina, the white man, and justice

Much attention is being paid to the following statement made by Sonia Sotomayor in a 2001 speech in Berkeley, California:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

To summarize: Sotomayor is saying that she is not especially bothered by the fact that judges may be using their own ethicity and/or gender to come to different decisions. Justice is not blind and impartial, and apparently this is okay with her. In fact, she celebrates the phenomenon, saying that she hopes a wise latina woman would dispense better decisions than a white man because of her “rich” life experiences; she embraces this sort of judicial inequality.

In doing so, Sotomayor stands Sandra Day O’Connor’s much wiser formulation about wisdom—O’Connor believes it can be possessed equally by people of either gender, and no doubt she would have included “of any race”—on its head. Sotomayor is instead saying that she wishes for such differences, and hopes that the superior judgments would be rendered by someone of her own particular gender and ethnicity.

This statement alone ought to disqualify her from any consideration for a position on the Supreme Court, including clerk (although it won’t). Why do I say this? It’s not just the racism inherent in it, although that is bad enough. It is not even her idea that people’s life experiences and even their ethnicity and gender sometimes do color their judgments; that observation is true. It is her idea that this sort of differential justice and judgment based on gender and ethnicity would be something to celebrate in a judge rather than to guard against and minimize.

Sotomayor has abandoned the idea that the possession of judicial wisdom is something that is—or should be—color and gender blind, that it ought to have a certain reality that transcends a judge’s own personal history. In other words, she does not believe that those who dispense justice can be impartially and equally wise, and that wisdom is something separate from one’s gender and ethnic identity.

Impartiality may be difficult or even impossible to achieve, and reasonable men (and women!) can differ about when it is being displayed, but one of the most sacred and important foundations of our legal system is that it is nevertheless something for which we must strive. In a very different context, I recently observed:

That’s why justice wears that blindfold. It’s not that she’s unaware, it’s that she’s supposed to be impartial.

In that post I was criticizing Obama for overriding the impartial rule of law in order to get a result he thought was right and fair in the Chrysler restructuring. He threw out contract law to favor his buddies in the unions and to criticize and short-change the first lenders.

Therefore it’s no accident Obama chose Sotomayor as the first of what will probably be several picks for Supreme Court Justice. They are both on the same page about justice: it is what they, in their infinite wisdom and valuable life experience as members of minorities defined as underprivileged and worthy of special and favored treatment, declare it to be. Not what a bunch of less-wise white men who “haven’t lived that life” might think it is. But paradoxically, the idea that there is some superiority inherent in a person’s racial or gender makeup is an example of a pernicious type of thinking that our rule of law has evolved to combat.

Affirmative action is not tangential but rather is central to all of this. The well-intentioned but I believe fundamentally flawed policy of affirmative action went beyond its own fair and desirable original goal: that people of different ethnicities and/or races be treated equally, be subject to the same rules for admission to schools and hiring and promotion and not be discriminated against. Instead, the new requirement was that supposed equality of outcome would be forced by treating them differentially rather than the same, that the rules must be changed for groups that had previously been discriminated against, now favoring them in order to redress previous impediments to an equal playing field.

Despite its laudable aims this was a dangerous move. We all have subsequently paid dearly, including those whom affirmative action was supposed to benefit, because their achievements have forever after been tainted by the suspicion (correct or incorrect) that they might not have been able to earn them if the playing field had not been recently slanted in their favor.

I’ve thought long and hard about what would have happened without affirmative action. I’m not at all sure there was a better alternative at the time, and I applaud the integration of our society and the increased opportunities for minorities that it has brought. Justice O’Connor thought the policy should be time-limited; by 2028, there would be no need for it. But once in place, these things tend to take on a life of their own, and are extremely difficult to eradicate.

In the meantime, we have results such as Judge Sotomayor’s comments about wise latinas and white men. A more racist statement would be hard to find, as one can easily see by switching the genders and races around in the same quote. But this probably will not harm her chances at confirmation. In a troubling paradox, PC thought coupled with affirmative action has made it impossible to point out the racism of a “wise latina” without having the charge of racism hurled back thousandfold at the person making the critique.

Barack Obama used racism in a similar manner during his campaign: knowing that his own racial makeup virtually immunized him against the charge, he allowed his surrogates to call his opponents racists when any criticism of Obama was mounted. He is counting on exactly the same phenomenon to protect Judge Sotomayor.

[NOTE: I think it may be no accident that Barack Obama and Sonia Sotomayor both went to law school during the period when the approach known as critical legal studies was highly influential in American legal education. This movement rejected the idea that the law was---or, what was more important, ever could be---impartial, and asserted instead that it was inherently political and favored the powerful elites over the oppressed.]

[ADDENDUM: Thomas Sowell agrees that these words of Judge Sotomayor's represent a "poisonous doctrine." And Thomas Sowell is a black man. Does that make the "richness of his experience" less, or more, likely to lead to wisdom than that of a Latina woman? I'm so confused.]

76 Responses to “Judging judges: the wise latina, the white man, and justice”

  1. Worm in the Wood Says:

    It is remarkable that the judge’s racist comment is more vile when seen in context than when it stands alone. Thank you for the full quote.

  2. dane Says:

    I have to admit a case could have been made for affirmative action for about the first 15 years after Brown vs. – but that’s it. Instead it morphed into outcome based employment. We now have that as well as outcome based education and so why not outcome based justice. I mean it won’t really be justice anymore but we could call it that.

    Just an aside my niece graduated from the Air Force Academy today. KUSA in Denver live streamed it so I got to watch Biden’s speech. Applause light and polite. What would he expect when he turned it into a political speech. He managed to work in global warming, health care, and the fact that his son was serving in Iraq. However, to his credit he actually stayed and shook hands with all the graduates. Bush did that as well. Clinton only did so with the top 100 in the class (who are awarded their diplomas first then it is done by squardron) then sat down.

  3. Mrs Whatsit Says:

    Congratulations to your niece, Dane — very richly deserved (and not least because she tolerated a speech by Biden.)

    I work in the courts and I would just like to say that, while it is neither possible nor advisable for any judge to ignore her life experience in making decisions, the judges I know would abhor any suggestion that race or gender actively improves judicial decisionmaking. On the contrary, they try to be aware of their own quirks and biases, whatever they may be, and to guard against being unfairly influenced by them in cases where they might. I’d also like to say that the huge majority of cases we see are dry applications of esoteric law to boring fact that do not require the rare wisdom of latinas to resolve!

    It’s ironic that adherents of critical legal studies, which was in full swing when I was in law school, have apparently preferred to attempt to replace the favoring of elites over oppressed minorities with its reverse rather than trying to move the law back to a less political and more objective basis. My father used to tell me that the oppressed become the oppressors. However, he went to law school too long ago to encounter critical legal studies.

  4. Tom Says:

    Back to simplistic basics: two wrongs don’t make a right. Affirmative Action was wrong at its birth and so remains.
    The “historically black” colleges and universities have vigorously resisted integrating themselves. I have gradually come to wonder if separate but equal (when accomplished) was in fact not unconstitutional, given the reverse racism that has been imposed on us all.
    I just love social justice.

  5. Occam's Beard Says:

    Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum

    The amazing thing about this assertion of potential intrinsic differences is that the intellectual achievements of minorities are, shall we be charitable and say, “still eagerly awaited?” So if any such intrinsic physiological or cultural differences exist, they if anything militate against selecting her or indeed any other minority for an intellectually demanding position, since they have such a sparse track record. Why she’d trot out intrinsic differences as an argument in her favor surpasseth all understanding. You’d think she want to avoid such comparisons, not highlight them.

  6. Helen Says:

    I don’t understand. What about white women or latino men? What about men and women who are neither? Where do they come in this strange equation? Also do all latina women have rich life experience and become wise or only some? Can anybody else have a rich life experience or does it have to be the same as the wise latina woman? So many things one needs to know, so little time. ;)

  7. SteveH Says:

    We don’t need to stop at just questioning affirmative action. The entire civil rights movement is obviously suspect in its benefits for black people. I mean they went from Louie Armstrong to Snoop Dog and 70% births with no father at home for Gods sake.

  8. Oldflyer Says:

    We constantly hear that there are two valid criteria for confirmation of Supreme Court Justices; qualification and judicial temperament. Sotomayor demonstrably lacks judicial temperament on the basis of her public statements; if not her rulings. Her statements are directly contradictory to the oath of office she would take as a Justice, i.e. ,(sic) to judge each case without regard to the relative condition of the parties.

  9. Occam's Beard Says:

    It strikes me as a somewhat pathetic attempt by an intellectual lightweight to arrogate to herself some wonderful and mystical quality that had somehow heretofore escaped everyone else’s attention.

    Maybe you have to be a Latina woman (isn’t that a pleonasm, btw?) to grasp that quality.

  10. huxley Says:

    Jonah Goldberg has an excellent column on this, Empathy vs. Impartiality with a bang-up lead:

    Why make this complicated?

    President Obama prefers Supreme Court justices who will violate their oath of office. And he hopes Sonia Sotomayor is the right Hispanic woman for the job. Here’s the oath Supreme Court justices must take:

    “I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.”

  11. Oldflyer Says:

    Another thought with regard to Mrs Whatsit post. I have read one legal authority assert that “empathy” plays a legitimate role on the trial bench. In other words it is right and proper for the Judge to take the human circumstance into consideration.

    I have no problem with that. as long as the Judge stays within the law. Primarily because the Judge is deciding individual issues; and a certain amount of discretion is granted within the framework of the law. My brother-in-law a long-time county judge almost certainly used discretion by considering human factors, and he was widely considered to be a good judge–although overall he was a hard one..

    This same authority went on to say that this mind set has no place at the Appeals or Supreme Court level. I also agree with this position, for the simple reason that those courts are deciding issues that not only have apply to a wider portion of society, they have the capability of changing law. They must adhere closely to the Constitutional law, alternatively they create chaos.

  12. Occam's Beard Says:

    Huxley, right after she says that, Obama better step back sharpish, or he might get hit by the lightning bolt.

  13. FredHjr Says:

    This nonsense uttered by what I believe to be a power-mad twit is applied post-modernist epistemology. It says that there is no such thing as objective truth and wisdom apart from one’s ethnicity and gender. It’s bullsh*t. In her world, there is only the triumph of moral and epistemological relativism.

    This is why we have to have a robust defense of the whole natural law tradition. Natural law is a body of philosophical traditions that go back to Aquinas and Aristotle and it buttresses what we call the correspondence theory of truth. It means that there are truths quite apart from the subject’s existence and experience. The opposite of this tradition is exemplified by people exactly like Sotomayor.

    I think that the way this whole argument over her suitability has been improperly set up by the Democrats and their water carriers in the media. I could care less about her gender or her ethnicity. It matters not at all. When the norms of society “evolve” to demand that merit slide on down the list of criteria by which we assess the worthiness of work, scholarship, or the suitability of a candidate for a job, then we are well on our way to perdition and destruction.

    This whole affair is one more brick in the wall of my conviction that our civilization is circling the drain.

  14. br549 Says:

    O’Reilly has made a turn to the left. He just isn’t saying so yet. Not that he was ever a conservative or a republican. Not that he was ever a true independent either. It is my belief the term independent means you are one who wants your half in the middle. The night before the election, things O’Reilly said at the close of his show plainly shocked Chris Wallace. My bet is he swayed a million votes with his statement. And my bet is he voted for Obama right along side those swayed votes.

    I felt something was up when he dumped radio. Perhaps he fears the coming doctrine, and feels his long term chances are better on TV than radio.

    We are being told she will be confirmed, and we should get out of the way.

    Too many are beginning to say the right is diminishing in members, in power.

  15. nyomythus Says:

    Sotomajor’s statement is stunning, boldly, racist.

  16. FredHjr Says:

    People like Sotomayor are enemies of the U.S. Constitution. It is an abomination that people like this take an oath on the Bible to support and defend the Constitution, when they have such a hostile view of that document.

    These people cannot be trusted AND WE MUST NOT TRUST THEM. Their view of themselves is that they are gods who will decide how we are to live our lives, how we are to think, and what we can and cannot speak.

    I think the more important and revealing statement, neo, that Sotomayor uttered was the statement she made (and laughed about) at a talk at Duke University, when she basically said that her view of the judiciary is that they make the law and policy. You would be hard pressed to find a more openly honest totalitarian statement.

  17. Stphnd Says:

    Spilling the beans about her view of the appellate courts the way she did FredHjr, could hardly be taken as an example of her wisdom either. Her own reaction to that error condemns her, flustered, sputtering and backpeddling for all she was worth – how characteristic of the wise! – up is down, judiciary is legislature.

  18. ConceptJunkie Says:

    So if this judge is confirmed to the Supreme Court, will this make anti-white racism and anti-male sexism the law of the land?

    That’s obviously what Obama and his fellow thugs are after. It’s payback time, baby.

  19. br549 Says:

    I can’t help but wonder if the confirmation hearings will yield a Latino male staffer of hers who will testify under oath that he found a particular type of curly hair on his soft drink can.

  20. FredHjr Says:

    “Payback time,” as destructive a modus operandi as it is, is actually an offshoot of the miasma of epistemological subjectivism that I took pains to express in my above comments. Instead of being anchored within the Founders’ thinking about the Constitution, or even the actual Constitution itself, the judicial self-understanding of these people like Sotomayor is the core of this Trojan Horse’s dna, now infecting all of our society’s institutions and power centers.

    Their understanding of liberty, freedom, limited government, natural law, and the excellence of a society that is meritocratic is very, very far removed from the social engineering cultural Marxism of many in the “living Constitution” movement.

    This exemplifies one of the reasons why, many years ago when I was a college sophomore, I decided to take a minor in philosophy (I was an economics major, at the University of New Hampshire). I began to realize that people are what they are because they are animated by (or attempt to justify their lives by) ideas. But their stated ideas have layers underneath what is ostensibly related to other people. Many people do not even know why they think the things they do or the provenance of those ideas. They lead unexamined lives. I did not want to live that way, and I sure as hell did not want other people leading me who had absolutely no clue as to what they truly believed and why they did so.

    Judicial philosophy is an extremely important topic. I might add that people like Ginsburg, Breyer, and Sotomayor know exactly where they are going and they have a very clear idea of how they want to shape society. They should be challenged right at the guts of what guides their thinking.

    Battles over the demographics of the judicial system are an obfuscation by the media and by the politicians. It is a way of kicking sand in our eyes.

  21. Gray Says:

    http://www.politico.com/news/stories/0509/23016.html

    Gibby brings the Mau-Mauing:

    “I think it is probably important for anybody involved in this debate to be exceedingly careful with the way in which they’ve decided to describe different aspects of this impending confirmation,” Gibbs said.

    http://www.merriam-webster.com/dictionary/maumauing

    Oh, f you, Gibbs. F all of you in the White House…. This is ugly.

  22. Kurt Says:

    One has to wonder why affirmative action is still around. What may have been proposed as a flawed remedy for years of discrimination certainly is not needed after at least two (if not three) generations of minority students have benefited from affirmative action policies.

    Yet now that we have our first affirmative action minority president (and as is par for the affirmative action course, an unqualified one at that), the policy is set to become even more entrenched in all of our institutions.

  23. rickl Says:

    FredHjr:

    Battles over the demographics of the judicial system are an obfuscation by the media and by the politicians. It is a way of kicking sand in our eyes.

    Every single news story I have seen and heard in the MSM led with “First Hispanic nominated to the Supreme Court”.

    Yes, we are being set up. Any opposition will be portrayed as racially or sexually motivated.

  24. jon baker Says:

    Ethnic balkanization is the long term trend here when Supreme court justices can be this racist. That speech was published in Berkeley La Raza Law Journal in 2002. “La Raza”= “the race” or “the people”. Its not “a race” or “a people” , as in one of many. If it was “a” it would be “un” or “una” Raza.

  25. nyomythus Says:

    Now he’s pissed me off. There is hardly a more divisive decision he could make than this one. What a shame!

  26. Logern Says:

    Daily Kos, & Salon, have a video of Samual Alito saying at his confirmation:

    Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.

    And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.

    But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”

    First one who claims it not at all the same gets the Karl Rove prize for best spin.

  27. grackle Says:

    The well-intentioned but I believe fundamentally flawed policy of affirmative action went beyond its own fair and desirable original goal …

    As a probable victim of affirmative action many times over I believe this practice is an abomination. One of the pernicious aspects of this policy is that like many other forms of discrimination it is usually applied without the victim being able to be certain it was used. Did they select the minority candidate on merit or was it another quota hire/promotion?

    Totally capricious, affirmative action is like a trial in which a defendant is found guilty but an innocent bystander who hasn’t been charged with a crime receives the punishment. My children, who have been raised to believe in equality, will also no doubt be sentenced for the crime of being ‘white.’ It’s one of the reasons I vote Republican.

  28. Highlander Says:

    If every Supreme Court justice thought the way Sotomayor did, we would have to have a court that seated a representative of every segment of society, to have any hope of fairness. We would have to have a African-American man, an African-American woman, a gay justice, a lesbian justice, an illegal alien – excuse me, undocumented worker justice, etc. One thing is for sure, we’d have to expand the number of justices.

    Is this not the logical result of multiculturalism? Instead of every American under one law – we have a clash of competing interests with no sense of unity.

    Sotomayor has admitted that, by design, she will most certainly not provide equal justice under the law. How can this ever be okay?

  29. Mrs Whatsit Says:

    Logern, you left out the part in the video where Alito says that he would hope that being a white Italian male with the richness of his experience would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.

    And now that I’ve copied and pasted that statement, I can no longer ignore the garbled syntax. I do hope it’s merely because she was speaking ex tempore, always more difficult to do coherently than writing with time for editing and reflection. But if not — where are my fellow commenters from the grammar thread? Join me! To the barricades!!

  30. Scottie Says:

    One doesn’t need to parse this candidate’s words too much to come to the conclusion that she made a racist statement, no matter how much the left bleats about context.

    If she were simply making the point that due to her own personal life experiences she felt she could make better judgements in general, then there would be no issue.

    Part of the problem is she projected the benefit of her own personal experiences upon all Latina women, as if all were equally experienced – this is definitely not going to be the case.

    A larger part of the problem is that she further bases her assessment that she and others of similar ethnicity are able to come to better judgements specifically because she is Latina, and specifically states they can come to better judgements than another specific ethnicity – in this case white men.

    How would her statement have been taken if she had contrasted the ability of Latina women to judge with that of black men instead?

    All hell would have broken loose.

    She is claiming superior judgement by virtue of no other fact than ethnicity, staking out the position that Latino judgement is better than “white man” judgement with no other qualifying factor.

    That alone is enough to condemn the statement as racist, and that should be enough to raise serious questions regarding this candidate’s suitability for one of the highest positions in our government.

    If I were ever unfortunate enough to come before her in a case, I would not feel I would get a fair consideration from this judge due simply to my being *white*.

    I would especially doubt the fairness of her judgement if the opposing party in the case were Latina…..

    A judge with such a world view will ultimately undermine the respect of the general population regarding the rule of law and the fairness of judicial proceedings, and could even lead to the general population becoming dismissive of judgements which would further undermine the ability of the judicial branch to enforce it’s rulings.

    I hear eveyone simply saying she will be confirmed – but even if this is the case there should be an opposition that stands up in the Senate and points out exactly what kind of judge the majority in the Senate is foisting off on the nation and specifically link them to her and her rulings for all eternity.

    Simply because you can’t win doesn’t mean you just roll over….

  31. Scottie Says:

    Logern,

    Exactly where in Alito’s statement did he claim superior judgement by virtue of ethnicity?

  32. Maggie's Farm Says:

    Thursday breakfast links…

    Your Wall of Bacon brekky above brought to you by Mr. Free Market. Too bad he doesn’t deliver, because I could go for some blood sausage, bacon, and runny eggs right about now.
    Judicial empathy for whom?
    Sotomayor is a racist. neoneo. Could b…

  33. nyomythus Says:

    Logern

    Sympathy for disadvantaged people who are striving to to archive something better for themselves is different from claims of superiority based on the superficiality of ethnicity. No spin required, just simple comprehension.

  34. huxley Says:

    Logern –Burden of proof is on you to show that Alito’s and Sotomaryor’s statements are the same, not on us to show that they are the different.

    This is the classic spin that I see from the left: that when the left loses a point irrefutably it hauls out some version of the tu quoque fallacy as a response.

    In this case, Sotomayor claims that a Latina judge will generally reach better decisions than a white male judge and her claim is therefore racist. The corresponding tu quoque claim would be Alito claims that a white male judge makes better decisions than a judge of color and i

    Though how we get from the Alito quote to there is a mystery, as Scottie points out, except Logern declares it to be so and if anyone objects, he or she is spinning in a manner which Logern insinuates that Rove does characteristically, again, with no support for that claim either.

    So what we have here is a failed version of the tu quoque fallacy.

    In any case, the upshot of the tu quoque fallacy, is that the original point stands, i.e. Sotomayor is making a racist claim.

  35. huxley Says:

    The other thing that bothers me about Sotomayor’s statement is that it is so easily challenged. It is a stupid thing to say.

    As neo points out, it is no trouble to switch the race and gender around in Sotomayor’s statement and see the inherent racism and sexism.

    However, Sotomayor is unable to see this and yet she is being considered for one of the most intellectually demanding jobs in government.

  36. Broadsword Says:

    Before Van Cliburn was awarded first prize at the first International Tchaikovsky Competition in 1958, the judges were supposedly obliged asked Khrushchev’s permission to give the award to an American. “Is he the best?” Khrushchev asked. “Then give him the prize!”

    If he had had one under his thumb, no doubt Khrushchev would have asked advice from a wise, Latina woman. They are, of course, most adept at picking piano contest winners.

  37. dane Says:

    Taken from this line in The Great Gatsby

    “So we beat on, boats against the current, borne back ceaselessly into the past.”

    in 1977 Eric Carmen released an album titled “Boats Against the Current” (oddly enough the title song was actually covered by Mel Torme).

    The relevancy (and well you may ask) is what I think Alito alluded to and Sotomayor completely dismissed – that judges must strive to be “boats against the current” of their life experiences in order to fairly administer justice.

  38. Promethea Says:

    Sotomayor’s Puerto Rican. We still need a Mexican on the Court.

    And what about a Cuban? Oh, not possible. She’d probably be Republican.

    :-(

  39. Baklava Says:

    Logern,

    The words were clear. :)

    He said:
    And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.

    Comprende?

    It’s his job to apply the law. The next paragraph he showed compassion because that is the new age way.

    But he prefaced it with is clear clear very clear statement that you didn’t comprehend…. :)

  40. Occam's Beard Says:

    It’s not my job to change the law or to bend the law to achieve any result.

    Please point out where Sotomayor says the equivalent, and then I’ll withdraw my opposition to her candidacy.

    We would have to have a African-American man, an African-American woman, a gay justice, a lesbian justice, an illegal alien – excuse me, undocumented worker justice, etc. One thing is for sure, we’d have to expand the number of justices.

    A modest proposal: let’s play Ethnic Bingo but allocate Supreme Court Justices by the number of Nobel Prizes (real ones, in physics, chemistry, and medicine, not that crap “Peace” Prize, or the risible “Literature” Prize). Also, it’s about time Asians received some representation. They contribute a lot, and get nothing back, unlike some of the most loudly whining groups, who do quite the opposite.

    If I were ever unfortunate enough to come before her in a case, I would not feel I would get a fair consideration from this judge due simply to my being *white*.

    It would be great to see a litigant ask her to recuse herself on those grounds.

    Perhaps instead of an Associate Justice of the Supreme Court, she could be the Chief Justice of the Latina Supreme Court, the final arbiter of all disputes between Latinas, kind of like the Hispanic equivalent of sharia. I’d be good with that. Or at least better.

  41. Occam's Beard Says:

    And here I’ve only had a poor experience as a white man.

    Looks like “rich” is going to be the new liberal watchword. “Robust” (as in “robust diplomacy,” whatever that is) had a good run, but now has joined “nuanced” on the trash heap…er…make that the “recycle bin.”

  42. FredHjr Says:

    Thomas Sowell’s recent column on this topic hits the bulls eye (as far as I’m concerned). Excellence in any profession is what a meritocracy is all about.

    If you or a loved one (and I have had recent experience of this very example) needed open heart surgery, would you employ a surgeon who is brilliant and a top physician in his field available to you, or someone who may have come from the right schools but whose skill is of a lesser quality but who claims that he or she has a compelling story about the struggle he or she had to get through Ivy League schools and into a top med school? And if peer reviews of this aspirant surgeon were mixed and sometimes unflattering?

    If you would not dispense with employing excellence for open heart surgery for yourself or a loved one (in my case my Mom got lucky and we had an excellent surgeon for her aortic valve replacement), why would you dispense with standards of merit when considering someone for the highest court of law in the land?

    Sotomayor is not a top legal mind. Her opinions have been peer-reviewed and found faulty and controversial. She has obliquely and sometimes openly expressed a diminution of the U.S. Constitution. Folks, this has nothing to do with her gender or her ethnic background. Making counter charges of racism on her part do not cancel out the charges of racism and sexism flung at her opponents by the media, the president, and the Democratic Party. I’ve always seen the tu quoque argument to be the lowest form of debate tactic – it’s basically the default tactic that adolescents employ.

    Let’s be adults and aim for higher things here. I do not agree with the philosophy that the judiciary should be the policy making and law making arm of our government. The Founders did not intend this.

  43. Occam's Beard Says:

    The Founders did not intend this.

    Ah, but they lacked that Latina insight, doncha know?

  44. Thomass Says:

    Just a word about affirmative action having always (re: from the start) being wrong. I don’t think it started as quotas. I think people just pledged to try harder to overcome biases. Like promoting the white guy between two equal candidates because your unconsciously more comfortable with them… Sort of a ‘pause and take a second look’ thing.

    Then it devolved into today’s nonsense. Largely due to court decisions.

    I could be wrong but its worth a check before attacking it from the very start.

  45. Thomass Says:

    Logern Says:

    “First one who claims it not at all the same gets the Karl Rove prize for best spin.”

    I’ll take it. :) Not the same as he discussed the same issues but did he come to the conclusion that it is ok to bend the law or create policy?

    I can discuss things without meaning to agree with them. Its like saying Fredhr is a socialist since he discusses it and its influence on his life (leaving out he doesn’t believe in it).

  46. Logern Says:

    Alito says:

    And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.

    How nice. How PC.

    Further on in the same speech Sotomayor says:

    I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

    Hmm, not PC. Gender too, might affect her judgement. Don’t forget to pass that on to all your conservative cronies.

  47. Logern Says:

    Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar.

    And not PC!!!

  48. Logern Says:

    I will note she should take the bad from her experiences as well. Obviously, her lack of intellect, that she missed it.

  49. Mrs Whatsit Says:

    “How nice. How PC. ” Logern, that’s not an argument. And it’s actually not PC, either — there’s nothing PC about applying the law rather than one’s feeeeeeeeeeelings in deciding a case. You really should explain why you are equating Alito’s acknowledgment that he remembers his own immigrant heritage when deciding immigration cases — but does not use those memories to try to change or bend the law to achieve any particular result — with Sotomayor’s statement that she believes her gender and ethnicity makes her legal decisions superior to those of white males. The difference is enormous, and pretending that you don’t see it or that it has something to do with Karl Rove doesn’t make it go away.

    Further, if you knew anything about the judiciary, which apparently you don’t, you would know that good judges acknowledge that their life experiences can influence their judgment (though in my view a good judge would never, ever claim that the color of their skin or which bits are between their legs makes their judgment superior to those who have different hues or bits, as did Sotomayor.) What needs to come with that acknowledgment – and did, with Alito, while Sotomayor asserted the contrary — is the concept analogized by Dane to “boats beating against the current” that a judge must never start with the result and bend the law to arrive there, regardless of her personal sympathies, and when those sympathies pull toward a given result — and believe me, they do — the good judge will be aware of that and will strive against it.

  50. Mrs Whatsit Says:

    Boy, you really do think that sneering constitutes reasoned discussion, don’t you?

  51. FredHjr Says:

    Mrs. Whatsit,

    Like your above posts.

    I think it’s a foregone conclusion that Sotomayor is going to be on the court. However, I expect that no one on the Court is going to be impressed with her. Even some of the folks on the Left are not impressed with this pick.

    My $.02 worth about affirmative action…

    I went to a Catholic, all-boys boarding school for high school. Small classes and excellent instruction and curriculum. My freshman class was twelve kids. One of my classmates was a black kid from Sommerville, MA. By the time we were juniors, the school was going to close down the following year, so we would have to all depart and go elsewhere. This kid was a straight A student, and I heard that at the local high school he continued that achievement. I very much appreciated having him as a classmate and a friend, as he would tutor me in Algebra my freshman year. I was one of those kids who, from grades 7 through 9, had a brain that took longer to be ready for abstract math (but then I did very well with it after that bump in the road). He went on to the University of Notre Dame on a full scholarship, and later, I heard, Harvard Law. HE EARNED IT.

    My classmate did not need affirmative action, and knowing him he would have been insulted if it was applied to him.

    I met some black guys in the Army and later on in college who achieved quite well without any help or crutch.

    So, having the media get all hissy about our criticizing the legal career and views of Ms. Sotomayor, attributing it to sexism and racism is a real slap in the face. I AM insulted. My wife is against her nomination also, and for the same reasons I am. Is my wife a racist? I hardly think so.

    We conservatives cannot get a break. The Left is trying to bully us, and that’s just another brick in the wall that solidifies my view that we are heading towards civil war/rebellion. The more bullying, vicious, and slanderous the Left is towards us, the more horrific it is going to be for THEM when the shit hits the fan.

  52. Cappy Says:

    What kind of intrinsic physiological differences would a Latino have from a non-Latino? Can someone help me here?

  53. Logern Says:

    Well, Mrs. Whatsit, feel free to have a go at Ruth Bader Ginsburg as well.

    Her status as the court’s lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl’s lasting humiliation, but Ginsburg stood out in her concern for the teenager.

    “They have never been a 13-year-old girl,” she told USA TODAY later when asked about her colleagues’ comments during the arguments. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

    In interviews with USA TODAY before Souter’s retirement announcement Friday, Ginsburg said the court needs another woman. “Women belong in all places where decisions are being made. I don’t say (the split) should be 50-50,” Ginsburg said. “It could be 60% men, 40% women, or the other way around. It shouldn’t be that women are the exception.”

    http://www.usatoday.com/news/washington/judicial/2009-05-05-ruthginsburg_N.htm

  54. Promethea Says:

    Cappy . . .

    Umm. They can roll their Rs?

  55. Mrs Whatsit Says:

    Again, Logern, if you can’t or won’t see the differences, it is well past my capabilities to get your blinders off.

  56. Promethea Says:

    Hi Mrs Whatsit . . .

    Logern is definitely one of those people whose brains are made of concrete.

  57. Logern Says:

    I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.

    Whatsits’ distortion: “Sotomayor’s statement that she believes her gender and ethnicity makes her legal decisions superior to those of white males “(white males who haven’t lived that life)

    cue: Ginsburg- white males haven’t been 13 y/o girls.

    Of course, maybe Sotamayor believes the “Latina” is just generally superior to white males. But that’s not what she said.

  58. Tom Says:

    Logern: Soto hasn’t had gay anal intercourse and fears of HIV either. She has been, for one year, a 13-year old girl. So what?

  59. FredHjr Says:

    The logic of Logern’s example is supposed to emphasize a philosophical perspective that I reject; and I know it well since when I was on the Left years ago I subscribed to a degree of it: that truth is perspectival. In other words bias is unavoidable. I had even read philosophical comments about it, to the effect stating that even the scientific method itself is biased. The corollary is that objective truth does not exist. Therefore, the cultural Marxists would hold that until the revolution transforms society we should aim for a balance of biases in politically influential and judicial bodies.

    Thus, we need another female on the SCOTUS in order to counterbalance the bias of the male members.

    I have never had a problem listening to my wife, past girlfriends, my sisters, my mother, and any other women, for that matter, and registering and understanding aspects of their existence that I cannot share. But it is a responsibility of a truly moral human being to exert efforts to do so.

    So, I reject the logic of Ginsburg’s statement, because I am capable, as are other men capable, of understanding the female experience, if you give us a chance.

    As for the police strip searching a 13 year old female for drugs, I can only say these things. First, I’m quite sure that in overwhelming number of cases female officers do this. And if they had reason to suspect she had drugs on her, something tells me that she is not likely to be a prude and embarrassed about being strip searched. Sounds like legal prep work was done by her counsel. Also, the bias of Ginsburg is telling: she never considers the case in reverse – a 13 year old teenage boy being strip searched by male officers.

    Anyway the logic just spins into infinity with many potential kinds of bias that could exist. This post-modernist denial of objective truth is nauseating. I’m sorry, but after my journey through the history of ideas I find that I’ve come back to Aristotle and Aquinas and sanity.

  60. Promethea Says:

    I was extremely active in the women’s movement in the early 1970s, and I feel qualified to say that the goals of most women in that era were achieved. I could write an essay on this topic, but will confine my remarks to a brief post.

    In the 1970s, some women pushed the envelope as far as they could, and those are the ones who managed to commandeer the word “feminist,” push for 100% abortion rights (NARAL), and make men feel uncomfortable and vaguely guilty of unknown crimes. Meanwhile, healthy feminists like me stayed married, raised happy families, pursued careers when we wanted to, and celebrated our good fortune in being born at a good time for women in America. We were helped along the way by fair-minded men like my husband. One of my closest friends in the women’s movement became head of a rather large corporation. Others ran for office and won.

    You get the picture.

    OK, fast-forward to 2009. Some people have never recognized the fact that feminists of the 1970s won. Where’s the money in that? No, it’s much more productive to keep picking at scabs, whining, bitching, moaning, etc.

    This is the same exact trajectory for the civil rights movement, which I watched from its heroic moments in the late 1950s and early 1960s to today, the modern era of race hustlers and grievance mongers.

    The United States of 2009 should throw out affirmative action candidates to anything as soon as it is able. The fact that a candidate to the Supreme Court has been chosen because she is Puerto Rican is beyond disgusting.

    I say that after she is confirmed, all who believe in “equality of opportunity,” which is what us feminists fought for, should stand up and say “enough.”

    Call me racist. Go ahead. I dare you.

    BTW, most of my specialist doctors and my husband’s specialist doctors are immigrants from India or Indian-Americans. Did they benefit from some secret affirmative action program that I never heard about? I think not.

    The grand-daughter of the Spanish-speaking immigrant who was my children’s babysitter is in the Air Force Academy. THAT is the American dream. Let’s not forget who we are.

  61. Gray Says:

    Ruth Bader Ginsberg has never been a gun-owner either, so how can she decide 2nd Ammendment issues?

    I would hope that a gun-owning white male with the richness of his experience would more often than not reach a better conclusion than a jewish female who hasn’t owned a gun.

    How about this: “I would hope that white males would reach a better conclusion than jewish females.”

    Everyone ‘OK’ with that? Hmmm? Anyone see anything wrong there?

    (What the hell does ethnicity have to do with legal conclusions any-f’ing-how?!)

  62. FredHjr Says:

    Gray,

    Thank you for expanding on the reductio ad absurdum that is at the heart of their legal reasoning. In fact, I hope lots of people add their own permutations of this important point.

    This is why I recoil in horror at the thought of these people who think they are our betters and believe they must impose their will on us. They think they know how we are supposed to live.

    This is why I smell tyranny around the corner. And why I think there are even odds that we may end up in a shooting war some day.

  63. Gray Says:

    And another thought:

    Does this mean that white males conclusions are wrong for white males?

    Let’s just nevermind this “Constitution” thing and just have a council of Wise Latina Females decide everything.

    We could have a Gynolatinocracy!

  64. Scottie Says:

    Logern,

    Ginsberg was never a 13 year old boy either.

    Generally speaking, it’s a tumultuous age for both sexes.

    Male children, while expected to be “tough”, are in their own way just as fragile as any female child.

    Don’t believe it?

    Check out statistics.

    Who is usually more often going to be fingered by school systems as having some sort of disorder (ADD,ADHD, etc.).

    Males.

    Who is usually going to more often end up in trouble with the law in their teens?

    Males.

    And for one more example I’ll offer as an extreme barometer that proves the point I’m making, go check out the suicide statistics.

    The suicide rate for males is about 4 times that of females.

    By the logic displayed in Sotomayer’s argument, males should be even more heavily represented in positions of power!

    This whole notion of ethnicity or sex being a factor in selecting anyone for any position needs to go the way of craniometry.

  65. Jamie Says:

    Logern, what are you trying to say, exactly? That Sotomayor would not be unique on the Court in claiming special wisdom based on an accident of birth, followed by a set of “life experiences” (what a silly phrase) peculiar only to those born under the same circumstances? Because so far you’re not actually providing any support for that position.

    Or are you trying to say that Sotomayor would not be unique on the Court in acknowledging the contribution, for good or ill, of her “life experiences” to her judgment? You’d be right, there – all good justices would have to acknowledge that they bring their own experiences to their time on the bench – but you gloss over her absolutely inflammatory statement that “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life,” regardless of the situation, regardless of the law. Emphasis mine, of course. How – how on earth – can you take those words of hers as anything other than evidence of her poor judgment and heedlessness where her own gender and ethnicity are concerned?

  66. Jamie Says:

    (I add:) Sometimes you’ve got to observe the first rule of holes, Logern.

  67. Mrs Whatsit Says:

    How – how on earth – can you take those words of hers as anything other than evidence of her poor judgment and heedlessness where her own gender and ethnicity are concerned?

    Jamie, Promethea provided a succinct and accurate explanation upthread.

  68. Adagny Says:

    Obama, speaking off the cuff without his teleprompter in L.A., revealed what this nomination is all about when he said, and I paraprhase, “I can just imagine her walking up those marble steps, goin’ up there to get us some justice”.

    I believe this reveals the angry chip on his shoulder. He has chosen Sotomayor because she mirrors his disgust for America and it’s institutions.

  69. Oblio Says:

    I hear today that Lanny Davis is trying to say that Judge Sotomayor “mispoke.” Pure spin. We should demand that any retraction Sotomayor might make be accompanied by an explanation of why what she said was wrong and repugnant as a matter of principle.

    Krauthammer, Gerson, and Noonan argue today that Sotomayor must be opposed in order to debate the principles involved and to educate the public. It matters not at all that she will be confirmed.

    Nor does it matter that Democratic hacks and progressives will play the race card. They have already starting doing so preemptively, which means they know their case is vulnerable. It also means we have nothing to fear from arguing the merits and demonstrating that this is not a racial issue that should alienate Hispanic voters from the Republican Party. If Hispanic voters as a whole hold group solidarity to be more important than impartiality and equal protection under the law, the Republicans will never get them anyway. For my part, I believe that the idea Hispanic voters would do so is a racist assumption on the part of the Democrats, and that Hispanics are as capable as anyone else of deciding as individuals to support principles that promote the common good.

  70. Oblio Says:

    sorry about formatting…I only meant to bold as a matter of principle

  71. Baklava Says:

    Logern mentioned the strip search case.

    Logern, once when I was 21 in 1991 I had a hernia surgery at a Naval hospital. The doctor came in after the surgery and asked if it was ok if he brought in some trainees to look at me. I said ok as it seemed fine.

    I felt violated as a 21 year old male as about 50 people come walking in including females.

    Ginsburg has never been a 21 year old male in that situation.

    I’m not sure why it would matter that a person is a 13 year old girl or 13 year old boy. Either one will not want to submit to a strip search. It’s humiliating and you are scared as “authorities” are making the request of you – you feel like you must comply.

    Whatever the case – for Ginsburg to attach her coworkers that way makes her a lowlife.

    For all of the issues involved in that case, Ginsburg owes an apology for the statements she made about her coworkers.

    And if liberals want to play this “I care” card to it’s finality they will lose. Liberals could care less in the individual. They care less about individual rights and freedoms and liberals care less about personal responsibility.

    You want to go down the road – lets.

    I personally think the Sotomayor pick was a one that should be seated on the Supreme Court.

    She would serve as a reminder to people as to what happens when you pick an Obama. She would do more damage to future presidents being “DEMOCRAT” than if he had picked somebody who does apply the law.

    She is only one of 9.

    She can’t unilaterally make preferential treatment the law of the land or apply law in such a way that people are stripped of their rights. She’s only one. With Ginsburg…. but replacing Souter.

  72. Scottie Says:

    I have to confess I’m a little puzzled, even after catching myself repeating it, that her confirmation is a foregone conclusion.

    Ya know, if there is enough of a $hitstorm about this woman, even the conservative democrats (and there are a few, they come from the South) may find the kitchen too hot for their comfort.

    Perhaps the best course here is to give these conservative Democrats a way to oppose this woman with at least a fig leaf of cover regarding the overall leftist mentality at work in the Democrat party.

    Raise a substantial issue, then let them use it themselves as cover to vote against her confirmation.

    If they choose not to take the path offered them on a silver platter, then have them explain their vote in 2010.

  73. Occam's Beard Says:

    Alito says:

    And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.

    How nice. How PC.

    No. The term you’re groping for is “professional” (or perhaps, “intellectually sound”). Here’s the acid test. Implicitly you think Sotomayor will change the law to your liking. Suppose the next President is Patrick Buchanan, and he appoints Supreme Court Justices to change the law the way he would like. No problem?

    The point is that Justices changing the law (and in effect, enacting their own laws in many cases) are in effect arrogating to themselves a power the Constitution assigns to the Congress. It’s as inappropriate for the Supreme Court to change laws (as opposed to interpreting existing ones) as would be for Congress to legislate the outcome of judicial proceedings (e.g., pass bills of attainder). That’s the problem. I would oppose Buchanan’s nominee just as I oppose Obama’s, and for the same reason: the Supreme Court’s function is to interpret the Constitution and the Congress’s intent with respect to any legislation, not substitute their own policy views for them.

  74. nyomythus Says:

    I’m glad the White House has made some acknowledgment of the “Latino Woman Wiser Than White Man” statement.

  75. Oblio Says:

    The White House is being disingenuous. What do they think is wrong with what she said?

  76. The perils of post-modern mumbo-jumbo writ large « Please, No Bull Hockey Says:

    [...] power—and the Constitution—by appointing nominees who share their misguided attitudes about the importance of judicial “empathy”, I have to call them on [...]

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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