Monday, July 20, 2009

Sotomayor, or, Whose Better?

Before I put out my MJ reflections, which really aren't writing too easily due to the way-deeper-than-it-looks complexity of the subject, some words on something I do know a little about. I'm not sure how many of my readers care about the law, the composition of the Court, or politics in general, but I just wanted to vent my frustration with a certain sector of the press and commentariat which views any questioning of Sotomayor's famed (and oft-repeated) remark on the judging abilities of wise Latinas as a racist move. (MSNBC, the Times op-ed page, Slate, virtually all major liberal bloggers, etc.) The lazy argument runs that, like, of course Sotomayor's super-qualified and everything, so it would be really unfair to read too much into one line that she's uttered a handful of times, probably because, um, she wanted to encourage the Latino/a audiences with which she frequently shared it. And besides, of course race matters! I mean, optics, and, um, perspectives and stuff. Hence, since the line means nothing, or is totally defensible to the extent it does mean anything, if you keep trumping it up what you're really doing is trying to tap into the racist fears of hillbillies, and you're probably a racist yourself. Especially if you have a Southern accent, or come from Oklahoma.

Now, let me state at the outset that Sotomayor is a competent and qualified, though hardly brilliant judge (however much time she's spent on the bench and whatever awards she may have garnered as an undergraduate notwithstanding), and deserves to be confirmed. Liberals will be disappointed if they expect her to become an intellectual standardbearer for their vision of jurisprudence; she lacks the firepower or the ambition. She's quite capable of doing the job, of course, but please don't imagine that she was chosen because she was the best mind or most-qualified individual on Obama's jurisprudential side of the aisle - or, conversely, that she's purely an affirmative action choice like Clarence Thomas was.* Rather, as the hearings have exposed, Obama looked through a list of qualified options and chose the judge who would best screw over his political opponents, my beloved GOP, who were naturally way too dumb to realize that anything but uniform praise of Sotomayor would inevitably piss off the very bloc of voters, namely Hispanics, they desperately need to be ingratiating themselves with if they plan on winning elections in the future. Why? Because besides the fact that she'd be the Court's first Hispanic member ever, leading Hispanics, understandably, to be pretty big fans, all the potential major lines of attack against her - she makes peculiar remarks about race and judging, doesn't give sufficient consideration to the reverse discrimination claims of white firefighters, is arguably not that smart and was chosen for reasons besides her intrinsic abilities - are all racially sensitive. With the proviso that this isn't to say that raising these points is actually racist.

So then, about that 'wise Latina' remark. If you weren't already convinced that Sotomayor didn't mean what she said - that a smart Latina, someone with both the experiential advantages of femininity and being a member of an underprivileged racial minority, should, more often than not, make better decisions than a smart white man - her wildly incoherent explanations before the Judiciary Committee should have convinced you. In fact, if I had never actually read some of Sotomayor's opinions, or better yet, heard tape of her in oral argument, where she really shines, I might've started buying into the "Sotomayor's actually an idiot" school of thought. Clearly, though, the befuddling gobbledygook she offered - that it was just intended to assure her Hispanic audiences that they could become great judges too, that it was just a rhetorical flourish that fell flat ("better decisions" = rhetorical flourish??), that it all somehow rests on her innocent misunderstanding of what the word 'wise' means - was simply an attempt to so confuse her questioners and the viewing public that everybody would just drop the topic rather than give themselves headaches. Not exactly the most honest course of action, but judicial nominees have been lying their way through confirmation for 20 years. That's life. But granting that the comment actually means what it seems to, I'd like to consider how it can be threshed out and defended and why people who object to her remarks have a legitimate bone to pick and shouldn't be peremptorily labeled race-baiters.

There are two obvious interpretations of Sotomayor's comment; the first I'll dub the additive thesis. The additive thesis takes its cue from a criticism of Sotomayor's remark, which reads "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The natural criticism is that white males have lived different lives, lives that also contain rich experiences. To which the additive thesis counters, "yes indeed, but Hispanics are exposed to both the white culture and Hispanic culture, whereas whites, culturally, are singlely exposed, and in Sotomayor's case and in the case of any other Hispanic jurist, have spent lots of time in White People Land
" (a coinage brought to you by Dayo Olopade, author of the Beyonce is the next MJ article and a marginally more astute commentator on matters non-musical). One trouble with this argument is that White People Land (in which, apparently, the federal courts reside) is actually an extraordinarily diverse place, culturally, ethnically, and socioeconomically; therefore, a white male judge could spend time in many different parts of White People Land in his life and hence have a pretty rich set of experiences himself. But even if we accept the ludicrous fallacy that white male America is a homogenous place and that Sotomayor, by going to Princeton, buying a condo in Greenwich Village, and sitting on the Second Circuit knows all there is to know about it (besides missing out on being poor and white, southern and white, rural and white, born-again and white, Jewish and white, filthy rich and white, whatever, where in her journeys through White People Land did she learn what it was like to be a man?), there's still a large question being begged that the seductively simple "Experience of Latina Land + Experience of White People Land > Experience of White People Land" logic masks. Namely, whether experience of Latina Land makes you a better judge. To just say that two experiences are better than one doesn't cut it; for that to be so, the second experience has to add something that contributes to better decisionmaking. Otherwise, one could argue that Hugo Black was better qualified to be a Supreme Court Justice than, say, Earl Warren, because Hugo Black was a liberal Senator and in his early years an Alabaman KKK member - rich experience! - whereas Earl Warren was just a liberal (albeit Republican) Governor of California and never a member of any racist societies. Which brings me to the second reading of Sotomayor.

The second reading, which one actually has to buy into for the first to make any sense, is that the experience of being Hispanic and female, and particularly the experience of sexism and racial discrimination which that experience unfortunately is often packaged, will lead a judge to make better decisions in cases about race and gender. By experiencing discrimination in real life rather than merely understanding it in a purely abstract and rather distanced way, one will have a better sense of how terrible discrimination really is, have a better grasp of which sorts of discrimination are more important and invidious than others, etc. (For instance, it's frequently argued in defense of Sotomayor that Justice Ruth Bader Ginsburg "got" the high school strip search case recently before the Court, because as a woman she understands how much getting strip searched sucks for a girl at a young age, whereas the men on the Court could only compare it to their experiences of changing in the gym locker room.) It's pretty clear that this is what Sotomayor really meant. The very next sentences after her comment on wise Latinas go:

Let us not forget that wise [white] men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972 [there were never any women on the Court until O'Connor's appointment sometime later], no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.

Now admittedly, no one can argue with the claim that in the nearly ninety years between the end of the Civil War and the Court's decision that segregated schools were unconstitutional in Brown, we would have gotten much farther if the courts weren't occupied by entirely white judges, or that gender discrimination law wouldn't have been essentially nonexistent for as long as it was if we had had some female representation on the federal bench. But today, racial discrimination law and gender discrimination law are quite alive and well, so the question isn't whether courts will turn a blind eye to these issues. The questions are about the exact extent of constitutional and statutory prohibitions of race and sex discrimination, the scope of the power of Congress and the states to remedy discrimination, and to what degree whites, men, and other groups not traditionally discriminated against are protected from measures that adversely affect them by aiding minorities and women. And whether Sotomayor's statement is correct comes down to the question of whether an Hispanic and female judge is better positioned, by virtue of her personal experiences of discrimination, to adjudicate these much more complicated issues.

Whether that is correct isn't such an easy question to answer, and will depend heavily on one's view of what the law on race and gender ought to look like. To demonstrate that it isn't so obvious that experiences of discrimination will just naturally cause a judge to "get" cases of discrimination in a way that a white male judge wouldn't, consider the following hypothetical. Suppose a bunch of executives of Fortune 500 companies get together and one says that what we need in this country are judges who understand business, have sat on the boards of or worked for big corporations. With those experiences, they argue, these judges will be better qualified to decide issues of corporate law, of employment law, or whether measures that severely regulate business are constitutional. Now this isn't a ridiculous argument by any means; certainly judges who have these experiences bring something to the table as far as business knowledge that some others don't have. But I venture to guess that many people would strongly disagree. What we need, they might say, surely isn't judges who "understand" - read, are biased towards - business. At most what we need are judges who've dealt with issues of corporate law, employment discrimination law, regulatory law, but not from the business side. Rather, judges who have worked for regulators or unions would be nice. Of course, neither side is "right." I would humbly suggest that the experience of being a minority and/or woman is similar to the experience of working for a large corporation - or a regulatory agency, or union. While both experiences certainly contribute something to the knowledge base a judge draws from when deciding a case, they surely don't give a judge some sort of special access to what the law really says about a certain question. Rather, they're more likely to condition a judge to reach a certain result.

Sotomayor herself comes close to acknowledging this when, in that famous speech, she says in defense of her point that "the
Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases." It strikes me that these excellent studies can be read in a few ways. Maybe the female judges really are "getting" the claims of sex discrimination in some way that the men aren't; there really was illegal discrimination and the men just can't see it. But maybe they're getting these cases wrong. Or, maybe there is no right and wrong answer in any of these cases and the judges are shaping the law in a certain direction, a direction that some might think is positive and others might not. That is, it isn't simply the case that (a) the law clearly and plainly states what's illegal, (b) there's illegal stuff going on that the male judges couldn't see and (c) the female judges saw it; rather, there's (a) discriminatory stuff going on that may or may not violate the law, (b) the law on gender discrimination is still unshaped, and (c) because of their gender-informed perspective on what the law should be, they've decided that this stuff should be illegal. This third reading seems like the most realistic description of what's happening by far. But to approve of these results, much less cite them as evidence for the "female judges really do decide gender discrimination cases better" thesis, it strikes me that you have to not only think they're taking the law in the right direction, but also think that the law is sufficiently ambiguous that the female judges had the power to take it there. And the idea that the law is really so ambiguous that it's cool to take it in any old supposedly socially beneficial direction you want is really what worries me.

Put it another way. Clarence Thomas hates affirmative action. For this hatred, some folks have called him an Uncle Tom. Now, Clarence Thomas actually hates affirmative action for not-so Uncle Tommish reasons; he hates it because he believes affirmative action screwed him over. Having gotten into Yale Law because, in part, of his race, he found that his Yale Law degree was virtually worthless because potential employers assumed he hadn't deserved to get into Yale in the first place. So in a somewhat bizarre way, he came to feel that getting into Yale somehow stigmatized him. And once on the Court, Clarence Thomas got to pontificating about how racial preferences are evil, profoundly harmful, and of course, totally unconstitutional. Now, if you wanted racial preferences to get shot down more often by courts, you might say, "what we need are more judges like Clarence Thomas, judges who feel they were screwed over by affirmative action. White judges who didn't get into Harvard Law because blacks with lower LSAT's took their spot, and black judges who got in and felt terribly about their devalued diplomas afterwards." And maybe you could argue that such judges would "really get" what affirmative action is all about, having experienced it in a concrete way, and make more informed decisions because of it. But in reality, what you're really saying is that you don't like affirmative action and want to fill the courts with judges who despise it for personal reasons. Now, whether that's okay depends on whether the constitutional provisions on race are so vague that it's alright for Thomas to inject them with his purely personal views, views which in that case may be relevant to what we ought to take the Constitution to say about race. But if you think that the Constitution has a fairly fixed and knowable meaning, one which does not include prohibitions of affirmative action, that we can tell this from things the authors of the relevant provisions said and did at the time, then the fact that Thomas has this personal experience of how much affirmative action sucked for him in the early years of his legal career really shouldn't play a role in his adjudication. Affirmative action may suck, but the Constitution doesn't prohibit it.

But if you're okay with this argument, that Thomas's personal hatred of affirmative action really has no business entering (or at least, completely clouding) his mind when he's deciding affirmative action cases, that he should just try, as best as he can, to determine what the Constitution really says about the permissibility of racial preferences, then it strikes me that you should have some trouble with the claim that Latinas make better decisions than white men. Because what that statement arguably and probably boils down to is that there is a certain set of decisions that should be made and that Latinas, because they've experienced sex discrimination and racial discrimination, are more likely to make those decisions. And if you believe that the Constitution really means something and isn't just this Mona Lisa-like text out of which we can read whatever interpretation might benefit society, you really shouldn't be talking about shoulds and oughts in the legal context, or at least, not to the extent that I believe you need to for the "Latinas make better decisions" claim to make sense. And that, whether you buy my whole argument or not, is the reason why worrying about Sotomayor's remark is not whatsoever the mark of a racist.

* Though Thomas has actually developed into one of the more intellectually honest and interesting members of the Court. Read his opinions for yourself sometime; the Scalia's puppet meme is utter bullshit.


bding7 said...

In regards to the additive thesis, it's fairly obvious that "White People Land" (someone actually wrote that? ooof) is more diverse than people sometimes realize. To ignore that would simply be ignorant. In regards to Sotomayor's comments, however, what I think she was trying to get across is that all too often on the Supreme Court, the white men chosen come from a background that did not expose them to much ethnic, racial, economic, or intellectual diversity. Because of that, her experience as a Latina would presumably give her more to draw from than the majority of her colleagues. Now, I'm not a budding legal scholar, so you might know more about the personal backgrounds of the white men on the Supreme Court. Also, she really, really articulated that point very poorly.

I would humbly suggest that the experience of being a minority and/or woman is similar to the experience of working for a large corporation - or a regulatory agency, or union.

As a minority, I'm going to ask that you explain this more fully, because while I can imagine some parallels, overall, I don't think this is a fair comparison at all.

In regards to Clarence Thomas, I see his point on Affirmative Action. It's really an idealistic view. But, sadly, it ignores reality in many ways and it seems like he is not open to cases where AA seems to have worked.

Badmon3333 said...

bding7: I think Tray meant the minority quote you italicized in the context of the corporation/corporate law metaphor.

Honestly, I'm much more interested in the details of the Connecticut case as opposed to the "wise Latina" hubbub. Personally, I think the suggestion that questioning the remark is racist is just as ridiculous as the suggestion that she's a racist for having SAID it.

I won't argue that White People Land (WPL) has plenty of diverse neighborhoods, mine included. But it's hard to argue - and I think this may be what Sotomayor was trying to get across in what turned out to be a stupid, awkward way - is that WPL's Supreme Court neighorhood has not traditionally been one of them., for the most part.

This is definitely the best, most cogent case I've read criticizing Sotomayor. Excellent work, my friend.

bding7 said...

Yea, this certainly was a good post. I would like to apologize for the "ignore/ignorant" sentence. As far as the quote I highlighted, I am just unsure being a part of a corporation, regulatory agency or union instills in a person the same values and lessons as a minority. Not to mention the values and prejudices ascribed by people in "outside" groups. I can see Tray's point a little bit in the case of Tom Daschle and his botched nomination, but his association was strictly business.

Badmon3333 said...

I just thought he meant that being a minority was the equivalent of having worked for a corporation in his corporate-law judge metaphor.

Badmon3333 said...

Well, hypothetical situation, not metaphor.

tray said...

So, my answer is this. Being black, or a woman, has the same sort of effect on one's judging of cases on race or gender as working for a corporation has on judging cases about business. It, yes, provides the judge with information they wouldn't otherwise have (or might not otherwise have). But it isn't the case that it shows you what stuff is "really" discrimination, or that working in corporate America will cause a judge to know what business regulations are "really" going too far. Rather, it's more likely to condition a judge to rule a certain way. Which isn't to say that minority judges are uniquely biased, because white judges are probably more likely to err in a direction that favors whites. But I certainly don't think that, like, Sotomayor's a minority, so being one she should know better about whether the Voting Rights Act has run its course. Being a minority, she's more likely, statistically, to think it hasn't. (Just as I'm more likely, being white, to think it has.) Which may be true! But may be not.