May 27, 2009

The Sotomayor-is-not-a-real-judge meme.

Let this William Warren cartoon represent what I'm calling a meme because I'm seeing it everywhere:



When a white man gets onto the Supreme Court, it's because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don't you see how unfair this marginalization is?

The fact that Sonia Sotomayor is female and Hispanic and that she got the nomination because of that does not nullify or degrade the legal credentials that she also has. It is wrong and unfair to say that it does.

Now, it's a separate question whether being female and Hispanic is supposed to play a part in constitutional interpretation. Both Obama and Sotomayor have made statements that suggest they believe something that many lawprofs say all the time: That a judge's background experiences and understandings play a role in answering hard questions of interpretation.

If you don't think that is true, think deeply about why you disagree. What do you know about the how human mind works that makes you think that our reasoning is abstracted from our real-world context? Don't tell me that you just feel sure that's what judges ought to do. The question is what human beings do, not what you wish they could do and would do.

And frankly, I think that if judges could reason about legal texts abstracted from the real world, they would make all sorts of intolerable, ridiculous decisions that would lead us soon enough to replace them with more practical judges. If your wish came true, it would only be temporary.

It's also a separate question whether Presidents should make Supreme Court appointments based purely on legal credentials. Is there some idea that all possible nominees could be ranked and the President ought to choose #1? Assuming some absolute rank order is possible — and I don't think it is — would you want to limit him that way? Why? What if it meant that the next 100 judges would be white males from upper middle class backgrounds? I think that would be intolerable.

324 comments:

1 – 200 of 324   Newer›   Newest»
onparkstreet said...

"When a white man gets onto the Supreme Court, it's because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don't you see how unfair this marginalization is?"

Well, then, maybe, it is better to start by discussing the candidates' legal credentials, and then start crowing about the 'first this or the first that' (that's not directed at you, but the breathless news coverage).

Honestly, I think a lot of what you describe has to do with the news coverage of this particular candidate - what is the number one thing you would learn about Sotomayor from the nightly news, etc? It's not some ruling she is famous for, is it? The cartoon's not the problem.

I dunno, somehow this fits into the Chicagoboyz post about the Age of Blather: we talk about all the wrong things in all the wrong ways. Jargon, identity, empathy, feelings.

(And, yet, what else have I done but emote all over this post? Oh, well, I'm not running a newspaper or anything).

SteveR said...

Gee, I wonder how that logic applies to Clarence Thomas.

muddimo said...

If you agreed with the criteria, it would not be intolerable. If so, you are a chauvinist.

traditionalguy said...

So tell us what you think! I think Sotomayor may be the first really good decision the Obama Boys have made. Let's not make fools of ourselves sliming a good Justice to prove we have slime guns. Save the guns for actually bad pick coming to a confirmation hearing near you soon.

Hoosier Daddy said...
This comment has been removed by the author.
Chase said...

Tension flows because each side of true believers - "Originalists" andr it's close relatives vs. "Living Constituionalists" don't want to acknowledge that each philosophy actually borrows everyday bits and pieces from the other.

You know good and well that as a Scalia supporter, I could care less about Sotomayors gender, race, or life story. I would like to be reassured that her temperament and determination to abide by the law above her emotions and "experience" - whatever those things may be - will insure the future value of the rule of law in the United States. No justice will perfectly perform in that way. But I want the philosophy that sets the law ABOVE her desire to "feel" or "empathize" with "real" people.

That is for a Supreme COurt Justice. I do believe that mandatory sentencing in criminal cases tie the hands of judges in places where their "feelings" for real people should be put to use.

Ironic isn't it? Supreme Court - spare us the empathy.

Hoosier Daddy said...

That a judge's background experiences and understandings play a role in answering hard questions of interpretation. If you don't think that is true, think deeply about why you disagree..

I don't disagree at all. It's a natural to have your experience and background play a role in decision making. The issue I have is Sotomayor's insistence that her background somehow translates to a better decision than her white male counterpart.

That being said there is another issue altogether. I'm not a lawyer but aren't the USSC justicies supposed to be the most disspasionate when ruling on constitutional issues and should throw discretion to the wind? Do we want any USSC justice drawing on their cultural or ethnic heritgae when deciding constitutional issues?

John said...

"When a white man gets onto the Supreme Court, it's because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don't you see how unfair this marginalization is"


You are right Ann. It is deeply unfair. But it is unfairness that Sotomayer and people like her create themselves. The problem is not that Sotomayer claims some access to truth and justice because of her experiences. The problem is that she denies other people, specifically white men, the same claim.

If a Republican President nominated a white, evangelical man who grew up poor and graduated from Liberty Law school, wouldn't that nominee be bringing a unique cultural prospective to a court full of mostly Ivy League Catholics? But of course both Sotomayer and Obama would deny any value of that diversity. The white male, no matter how different his experience is from the norm, can never be chosen for the sake of experience or diversity.

This means two things. White men are always assumed to be chosen for their competence until proven otherwise. And it means that minorities are always assumed to be chosen because they are minority. If Sotomayer doesn't like that fact, maybe she should lighten up on the "wise Latina" talk.

muddimo said...

"When a white man gets onto the Supreme Court, it's because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don't you see how unfair this marginalization is?"

Such marginalization is the natural product of decisions based partially on race or gender preference. Affirmative action corrodes trust.

Chase said...
This comment has been removed by the author.
John said...

"Such marginalization is the natural product of decisions based partially on race or gender preference. Affirmative action corrodes trust."

I suspect that was Ann's point.

PatCA said...

"Don't you see how unfair this marginalization is?"

It may be unfair, but it's de rigueur these days due to the dominance of identity politics. Even you touted her race and gender in your first post about her!

John Althouse Cohen said...

Well, then, maybe, it is better to start by discussing the candidates' legal credentials, and then start crowing about the 'first this or the first that' (that's not directed at you, but the breathless news coverage).

OK, so in other words, you like the way Obama introduced Sotomayor yesterday:

"While there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are few that stand out that I just want to mention.

"First and foremost is a rigorous intellect -- a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand..."

Chase said...

You are right Ann. It is deeply unfair. But it is unfairness that Sotomayer and people like her create themselves. The problem is not that Sotomayer claims some access to truth and justice because of her experiences. The problem is that she denies other people, specifically white men, the same claim.Which we plainly saw in her ridiculous and bigoted decision regarding the firefighters case. Can't wait for the Court to turn that one around.


So Ann - how do you explain her use of life experience in that one?

Widmerpool said...

John and muddimo said it all Ann. In other words: The fact that Sonia Sotomayor is female and Hispanic and that she got the nomination because of that DOES nullify or degrade the legal credentials that she also has.

Reap what you sow and all that.

A rather obvious point that all we anti-AA wingnuts have been making for years.

rhhardin said...

If you don't think that is true, think deeply about why you disagree.

Because language is something used every day with nuances used every day. People are very good at it. That's how it got nuances. They agree on the nuances, otherwise there would be no point to them. People are great interpreters all the time.

Interpreting the law is a small part of that larger universe, a specialization of it. The background and life experiences are less important than in everyday life just because it is specialized. That's why it's a specialization. The point is to cut life experiences out.

Specialization limits the game.

muddimo said...

"This means two things. White men are always assumed to be chosen for their competence until proven otherwise. And it means that minorities are always assumed to be chosen because they are minority. If Sotomayer doesn't like that fact, maybe she should lighten up on the "wise Latina" talk."Ouch!

MadisonMan said...

Do we want any USSC justice drawing on their cultural or ethnic heritage when deciding constitutional issues?

You didn't ask me, but I'll say probably not. They should be using the cultural/ethnic heritage stuff at the Question stage, grilling the poor attorneys who have to stand before the SC and argue. That's using your experience to help gather information.

Pogo said...

No one seriously argues that a judge's background experiences and understandings do NOT play A role in answering hard questions of interpretation.

However the left sees that role as primary, superseding all others, it is THE role. It's all that foucauldian crap, but now the inability to be blind is a job requirement, not a deal-breaker.

The left demands marginalization and then says it is bigoted to vote against the resulting balkanization it has created.

What bullshit. If they had put her up as a good judge, then fine. But they proposed her as a wise latina with necessary wise single woman latina experiences who BTW happens to be a judge.

The left wants marginalization, and demands it. When we point out these emperor's clothes we are insulted for it.

Chase said...

Even you (Ann) touted her race and gender in your first post about her!---

WOW! Caught you with your panties down on that one, didn't we?

muddimo said...

"The left wants marginalization, and demands it. When we point out these emperor's clothes we are insulted for it."

Absolutely. Parse us all into interest groups to be used against each other. Wealth, race, ethnicity, age, gender, sexual preference, and now, subdivisions thereof. If you can pare a group down to a single special interest, then you can lead them by the nose with it.

Hunter McDaniel said...

I don't disagree that a judge's background experiences and understandings have an effect on their interpretations. It's just that I consider that to be an unfortunate "defect" whereas Obama considers it to be critical "feature".

Or to put it another way, judges should try harder to think like mathematicians and less like artists.

garage mahal said...

Here is the very next paragraph from the infamous wise latina remark if anyone cares, which I doubt:

"I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.".

Source.

PJ said...

even though excellent legal credentials were required for her to make it into the pool of finalistsI think Sotomayor is a good judge and I tentatively support her nomination, but I'm not sure how you advance your argument by directing attention to "the pool of finalists." In my opinion, examination of that pool tends to reinforce the view that "excellent legal credentials" were of only secondary concern. If your point is that we shouldn't unduly discount the secondary qualification just because it was secondary, fair enough, but then who started us down that road?

hawkeyedjb said...

"You know good and well that as a Scalia supporter, I could care less about Sotomayors gender, race, or life story."

Why do people say 'I could care less' when they mean 'I could not care less?'

Widmerpool said...

How magnanimous of the wise Latina Garage! Hope for some of us pale penis people yet!

John said...

"And frankly, I think that if judges could reason about legal texts abstracted from the real world, they would make all sorts of intolerable, ridiculous decisions that would lead us soon enough to replace them with more practical judges. If your wish came true, it would only be temporary."

I think the value of experience is vastly overrated in an appellate judge. Life experience is valuable in a trial judge. Trial judges listen to witnesses, determine their credibility and make findings of fact. Clearly, having some experience and understanding of the real world is invaluable to make proper findings of fact. But appellate judges have the facts in front of them. They don't make findings of fact. They only determine if such findings are completely unsupportable given the evidence. Being an appellate judge is much more abstract. All they do is read the law and apply it to a given set of facts. It really is in many cases "if X, then Y" kind of reasoning.

One can imagine how someone like Sotomeyer who grew up in the projects would bring some really valuable experience as a state court criminal judge in her old community. She would perhaps, bring a sense of the community with her and know better how to evaluate credibility and do justice. But none of those skills mean a whit at the lofty level of the Supreme Court. At that level "empathy" is just code word for "doing whatever I feel like regardless of the law or the constitution."

AJ Lynch said...

Did I hear coorectly that 80% of her decisions have been overturned on appeal? Or am I making that up?

Joseph Hovsep said...

Pogo, you are wrong, absurd, and obscene.

Joseph Hovsep said...

AJ--you are making that up.

Dust Bunny Queen said...

Don't you see how unfair this marginalization is?

No. She did it to herself. By emphasising her "rich experiences" as a "woman Latina" Sotomayor brought this marginalization upon herself.

You didn't see Condoleeza Rice putting her gender or race FIRST did you?

I have zero sympathy for Sotomayor. She played these cards now she gets to reap the consequences.

Kansas City said...

Absolutely great cartoon.

John, I don't think Ann gets the fact that Obama and company ask for this treatment when they base their pick on empathy, gender, and her heritage and cultural background. I think Ann is genuinely offended by it.

But look, the sad state of the supreme court is that presidents pick justices to vote either liberal or conservative. Whether it was Sotomayer or a higher intellect liberal, it would be a liberal vote on all significant issues. Obama knows that. He just wants to maximize the political benefit (Hispanic votes) and maintain the liberal votes on the court, hoping that a conservative leaves so he can really change the direction of the court.

AllenS said...

AJ--

Earlier I had read that it was only 60%.

rhhardin said...

Where are Justice Thomas's life experiences in his opinions?

downtownlad said...

Sometimes it is obvious when there is an affirmative action choice. And there is nothing wrong with pointing that out.

If President Palin wanted to pick a gay conservative, for example, I'm sure she could find one, but they'd probably be pretty freaking incompetent, as she'd have to go to 104,567 on the list before they found one. That is where a lot of the criticism of Clarence Thomas came from. Let's find a black Conservative and put them on the Court - so they passed over hundreds of people who were more qualified. Affirmative action to the extreme. Not to say that he's an idiot and makes a bad judge. He's definitely competent. But the ONLY reason Clarence Thomas was picked was because he was black. From a party that is opposed to affirmative action, I think that is very hypocritical.

But to say that Sotomayor is only an affirmative action pick is demeaning. Based purely on her credentials, she's more qualified than Scalia was at the time. Princeton beats Georgetown and Yale Law beats Harvard Law. And she is probably more qualified than the majority of the current Court. If she was a white male and she was picked, many people would still say it was a fantastic choice. She was the top student at Princeton. That has to make her one of the hardest working students in the country for her graduating year, probably in the top 20 of millions of students.

Yes, being a Hispanic woman helped.

But guess what? Being a white male devout Catholic who was an arch-conservative also helped Roberts and Alito get picked. So did Scalia being Italian. How many people in this country are white, male, arch-conservative, devout Catholics? Not a lot. But the Republicans sure do like to pick from that pool and it is never questioned.

And I really believe that Obama picked Sotomayor, not because she was Hispanic, but because she shares Obama's philosophy and background. Minority, grew up under difficult family circumstances, moderate-liberal, and damn hard-worker.

Widmerpool said...

Hey Joe - two very unconvincing posts.

Judge S has written 5 majority ops which have been heard by the SC and been reversed 3 times. Make of it what you will.

muddimo said...

Joseph Hovsep said...
"Pogo, you are wrong, absurd, and obscene."

That's a weird thing to say. Pogo's last post was quite on point and well-stated.

Class conflict is the left's m.o. Black vs. white, gay vs. straight, women vs. men, poor vs. rich, consumer vs. producer, etc.

John said...

"I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.".


That needs to be read in context with the infamous "wise Latina" remark. She is saying three things. First, everyone brings experience to the bench. Second, a few special people can go beyond their experiences. And her experiences as a “wise Latina” are superior to those white males. The white males who decided Brown are in Sotomayer's view special to their race. Sort of like when racist whites used to call black people a "credit to their race." Lastly, in the infamous "wise Latina" remark she is saying, unlike white people, she is special and wise. Because she is non-white, she doesn't need to rise above her group. She automatically understands things in a way only really exceptional white people can.

It was a profoundly racist speech.

Sloanasaurus said...

Obama marginalized Sotomayer himself by requiring on empathy rather than something else for his pick.

Obama's whole point is that the marginalization doesn't matter because Sotomayer represents a new era of rule by man/woman rather than rule by law. The blindfold has been removed!

Imagine Obama making a speech about "we are a nation of laws" like Clinton did in the 1990s. Wow have things changed.

Lem said...

Well said professor.

In nature you find that genetic diversity most often leads to improvements. Where as the opposite (inbreeding) leads to disaster.

al said...

AJ @ 11:17

She's 3 for 5 in getting decisions overturned. There is another one that will probably be heard in the next SC session that should make it 4 for 6.

AllenS said...

"genetic diversity"

You mean like the jackalope?

Hoosier Daddy said...

Here is the very next paragraph from the infamous wise latina remark if anyone cares, which I doubt:.

Interesting. Completely contradicts her previous statement though. Maybe she realized she stuck her foot in her mouth.

La Raza. Heh.

downtownlad said...

And I think the strip search case of the 13 year old girl for advil is a perfect case of old, white men just not getting it. That applies to the old, white, liberal men on the court too.

I think the case of Justice Powell casting the deciding vote in Browers vs. Hardwick, which said it was ok to imprison gay people for sodomy - when Justice Powell also believed that he had never met a gay person in his entire life - is also a case of just not getting it.

http://en.wikipedia.org/wiki/Lewis_F._Powell,_Jr.

Damn right I want a Supreme Court Justice with empathy.

Sloanasaurus said...

Being a white male devout Catholic who was an arch-conservative also helped Roberts and Alito get picked. So did Scalia being Italian. How many people in this country are white, male, arch-conservative, devout Catholics? Not a lot.You are missing the point. Roberts and Alito were not picked because they were white conservative males. They were picked because they have and do apply the law with a blindfold on. Clarence Thomas also applies the law in this way. Sandra Day Oconner stated she believed that a woman and a man should reach the same conclusion of law, because she believed that Justice is blind.

Sotomayer will take the blindfold off before she applies the law - that is what Obama wants. Obama wants to remove the blindfold from Justice and replace it with empathy for groups he views as having been victimized.

In the end Obama will victimize everyone.

John said...

"Completely contradicts her previous statement though. Maybe she realized she stuck her foot in her mouth."

It really doesn't. You just have to read it understanding the Sotomayer looks at hispanics as a superior race. If you read it with that assumption, her speech makes perfect sense. Either Sotomeyer is a racist or she is incapable of making a logical argument. I think it is the former.

MadisonMan said...

Even you touted her race and gender in your first post about her!

I didn't remember that, so I clicked on the Sonia Sotomayor tag. The first post about her is this one -- doesn't mention a thing about race or gender. Then came the hilarious fisking of the Rosen article.

The only post in which althouse mentions gender of nationality is the list of 4 reasons why she's glad Sotomayor was nominated -- a list that, frankly, I took to be tongue in cheek.

So what the heck are you talking about?

Ann Althouse said...

"The issue I have is Sotomayor's insistence that her background somehow translates to a better decision than her white male counterpart."

You know, if you want to flaunt your allegiance to textual interpretation you should do better with the text you purport to interpret. Sotomayor said: "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."

Where is the "insistence" on anything? She expresses a "hope." Also look at all the other hedging words: "more often than not" and "wise." She's not saying anyone with her experiences, because the qualification "wise" is there. Do you seriously not see how real-world experience can help someone think better about legal issues? She's not saying that it always will or that anyone with real-world experience will answer legal questions better than anyone else.

It's a pretty open-ended sentence, and if you were to ask her a follow up question — like what about a white male who had acquired worldly wisdom through real-world experiences — I'd bet she would acknowledge that there are lots of different experiences and that white men also learn from their experiences and may become wise and become better judges because of it. Trying to portray her as bigoted because of that statement is really forced and absurd.

John said...

"Damn right I want a Supreme Court Justice with empathy."

No. You want Supreme Court Justices to decide cases the way you want them to be decided. Empathy is just the name you give to it to pretend that it is anything but what it is; naked power.

MadisonMan said...

She's 3 for 5 in getting decisions overturned. There is another one that will probably be heard in the next SC session that should make it 4 for 6.

IANAL, so that's the context of my asking this question. I thought judges were overworked, yet she's only written 6 decisions?

What constitutes overworked in the eyes of a judge, I wonder.

Hoosier Daddy said...

It really doesn't. You just have to read it understanding the Sotomayer looks at hispanics as a superior race. If you read it with that assumption, her speech makes perfect sense. Either Sotomeyer is a racist or she is incapable of making a logical argument. I think it is the former..

I tend to agree with your conclusion. My remark was based upon the sole paragraph that garage provided and really didn't think of it much further. Your statement about her viewing those 9 white men who voted on Brown as a 'credit to their race' was spot on.

Then again you're pretty much yelling into the wind with many liberals on the race issue. I doubt most, at least the one's who regularly comment here actually believe a minority can be racist. The excuses I heard over the Wright sermons last year pretty much convinced me of that.

traditionalguy said...

Time out: The same Lady's nomination under consideration would have been a coup and greatly admired if made by Bush, like Thomas' nomination. Since Obama made it, she is portrayed as a ploy to diss the WASPs. No, she is only a ploy to get cheap, baseless anti-Hispanic speech coming out of Repuplicans' mouths. This perfectly qualified nominee will be seated whether the Republicans destroy their cred with hispanic voters or not, that would only be icing on Obama's cake.

downtownlad said...

Sloan - You really believe that there is only one pre-determined outcome for judges?

Quick - Please explain how the Air Force is legal if you interpret the constitution solely with original intent.

Hoosier Daddy said...

IANAL, so that's the context of my asking this question. I thought judges were overworked, yet she's only written 6 decisions?.

That 60% overturn thing is a red herring. That's only six of her decisions that made it to the USSC. She's written hundreds I'm sure.

Pogo said...

"Joseph Hovsep said...
Pogo, you are wrong, absurd, and obscene.
"

From Joseph, the rare compliment.

John said...

"It's a pretty open-ended sentence, and if you were to ask her a follow up question — like what about a white male who had acquired worldly wisdom through real-world experiences — I'd bet she would acknowledge that there are lots of different experiences and that white men also learn from their experiences and may become wise and become better judges because of it. Trying to portray her as bigoted because of that statement is really forced and absurd."


If that is true, then what purpose does the phrase "wise latina" serve? Why didn't she say "I would hope that someone with the richness of her experiences would more often than not reach a better conclusion than a someone else male who hasn't lived that life."?

Ann you pretend she said that because you don't like thinking that Sotomayer is a racist. But what possible reason could there be for including the language about "wise latina" versus "white male" other than to point to the uniquely superior experience of the "wise Latina"? Further, what does she mean by "lived that life"? What life? How does a white male ever live the life of a wise latina? It doesn't make any sense. The white male can never live that life and will therefore always be an inferior judge to the latina.

Joseph Hovsep said...

rhhardin: "Where are Justice Thomas's life experiences in his opinions?"

http://writ.news.findlaw.com/lazarus/20021226.html

Dark Eden said...

She has specifically said she intends to legislate from the bench and thinks she is innately superior to white men.

I don't need any more reason to oppose her nomination than that. She is a racist, sexist, activist judge. Look the other way on this if you want. I won't.

Dust Bunny Queen said...

That a judge's background experiences and understandings play a role in answering hard questions of interpretation.

If you don't think that is true, think deeply about why you disagree.

Of course it is true. We always bring our baggage with us. The point, however, is that in a profession like law (and like my own) emotion, touchy feely, prejudices should not be the foremost part of that decision making.

Sotomayor has indicated that she thinks that her unique experiences (like she is the only one with unique experiences...what hubris) makes her MORE qualified to make BETTER decisions. This is fine if you are an artist, but she is being proposed for the highest court in the land and may subject all of us for generations to come to laws interpreted by whim, emotion and bigotry instead of the precise letter of the laws.

What do you know about the how human mind works that makes you think that our reasoning is abstracted from our real-world context?

I know that if I bring my own emotions and "rich experiences" to the table when making investment decisions, my clients and I are in trouble. My job as an investment advisor and financial planner is to get my clients to release their emotions and prejudices and view their investments as a tool to an end and not a sentimental journey.

So the question back to Althouse is:

Should a judge, especially a Supreme Court Justice, use the law FIRST or use their experiences, empathy and emotions FIRST when deciding cases and interpreting law?

Aaron said...

Look Ann, I am disabled, so i have long had to live with all the stupid prejudices that come with that, including but not limited to the claim that i haven't earned what i have earned.

But that is exactly what infuriates me about Soto. She reinforces those stereotypes of people playing the victim card to gain special advantages. She herself has expressed the opinion that latina women are better judges. You live by the sword, you die by the sword.

Bluntly a racist or sexist has no business of the Supreme Court, even if that racist/sexist is a female minority.

And even if you don't believe she harbors racial and gender bias, the mere appearance of bias is bad enough. when she says that sort of thing and then rules as she did in the Ricci case, people have to wonder if she would have ruled differently if the plaintiffs weren't white. And then she might feel a temptation to rule the opposite way to prove that she is not biased, which is a bias in and of itself.

Frankly, what she said was unprofessional. Its bad enough that she thought it, its worse that she said it. And in any case, utterly disqualifies her to serve. Lets find someone else.

downtownlad said...

Naked power?

Sorry - but saying that teenage girls should not be strip searched for advil is not an example of naked power. In fact, it's taking "naked power" away from the government. That is a good thing.

Funny - because I'm pretty sure you want the Roberts court to use "naked power" to declare affirmative action unconstitutional, even though the Constitution is pretty silent on the matter, and affirmative action laws were enacted by elected legislators.

peter hoh said...

Bonus points: the cartoonist makes her look fat.

former law student said...

Do we want any USSC justice drawing on their cultural or ethnic heritgae when deciding constitutional issues?

Want it or not, we haven't been preventing it. White males have empathy for other white males -- it's built into human nature. Blindness to this is called privilege.

Obama and company ask for this treatment when they base their pick on empathy, gender, and her heritage and cultural background.

What would you call centuries of white men picking other white men? Objectivity? A merit-based system?

To achieve either, you actually have to go outside your comfort zone and pick someone who doesn't remind you of you.

Roberts and Alito were not picked because they were white conservative males. They were picked because they have and do apply the law with a blindfold on.

If you believe this, I have a large riveted steel structure I'd like to show you. Shared bias is still bias.

peter hoh said...

"I have followed this man's career for some time. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor," - President George H.W. Bush on Clarence Thomas, July 1991.

h/t Sullivan

John said...

"Funny - because I'm pretty sure you want the Roberts court to use "naked power" to declare affirmative action unconstitutional, even though the Constitution is pretty silent on the matter, and affirmative action laws were enacted by elected legislators."

I guess equal protection under the law doesn't really mean that? The constitution is not silent on it at all. Further, I actually agree with you about the Advil case. But, there are better reasons to overturn the case than you don't like it. Further, any white male with a daughter is going to be offended by that case. I fail to see how the fact that they are white men prohibits them from ruling properly. There are almost too many layers of stupidity in your post to adress at one time.

Tibore said...

"Assuming some absolute rank order is possible — and I don't think it is — would you want to limit him that way? Why? What if it meant that the next 100 judges would be white males from upper middle class backgrounds? I think that would be intolerable."

Professor, I don't often disagree with you, but on this statement, I must. If some "absolute rank order" is possible, and if it's truly based on merit (i.e. judicial ability), why would having the "next 100 judges (be) white males from upper middle class backgrounds" intolerable? The fact that they'd be white, male, and upper middle class is not the relevant characteristic; judicial acumen is. To think that it would be intolerable would be to discard the notion that aspects other than race, gender, and economic status could provide a common base for society to operate.

I don't know what Sotomayor's CV or judicial abilities are, but I find it disturbing that her race and gender is what's being emphasized in all the talk that's going around, not the cases she's been involved in, or the texts of her decisions. I'd like to judge her by her abilities too, but the unfortunate fact is that any such talk is being drowned out by the roar of her being female and Latino.

----

Look, I know that you're trying to get us to respond in the context of judging via real world experience, not abstract, idealistic standards. I get that. You came out and said it, after all. But the problem with that is that how we think about things in the real world gets shaped by the abstract principles we derive from our experiences and education. So completely separating them is potentially an exercise in futility. And even when done successfully it doesn't always lead to a different answer than what would've been given when free to apply such principles. Sure, you can get, for example, the ex-Klan member who meets black people in real life and discovers that his ingrained principles are lacking. Problem is, you can also get the die-hard racist who'll meet an example of the dregs that exist in any racial group and allow him to vindicate his indoctrinated racist principles with his real life experiences. Whereas applying the abstract principle that good and bad isn't a racial characteristic would still allow the first person to transcend his prejudices but also deny the second person justification for maintaining racist mentalities.

See what I'm getting at? We can turn off our abstract reasoning for a little bit, but it doesn't necessarily lead to a desireable outcome.

What I'm trying to get at is the fact that abstract principles allow us to try and transcend our perceptual boundaries, as well as the limitations imposed by the practical inability to experience every different kind of person or experience in life. They can be a tool to remove our unique colorings on any given judgement and try to apply objective reasoning. If you want us to switch that off for a minute, fine, we can try. It would certainly lead to interesting commentary. But I'm not sure it would necessarily be truly enlightening. The discarding of abstract thought guiding our judgement and basing things solely on "our real-world context" turns everything into subjective argument. And I'm not really certain that such intellectual Balkanization-via-experience leads to any better, more coherent thought than allowing us to work from principles.

John said...

"I have followed this man's career for some time. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor," - President George H.W. Bush on Clarence Thomas, July 1991."

But the left has treated Thomas like an idiot for 20 years. Democrats routinely get up and refer to him as a moron. So given their treatment of Thomas, doesn't that leave them little room to complain about similiar treatment of Sotomayer.

MadisonMan said...

Hoosier, that makes sense. Thanks -- I should've thought of that.

Quayle said...
This comment has been removed by the author.
Quayle said...

DTL says, "Damn right I want a Supreme Court Justice with empathy."

Let me translate: Damn right I want a Supreme Court Justice that empathizes with the party that I favor in each particular case."

So, if the key qualification is to be sensitive and attuned to the side of the case that DTL happens to favor, why nominate a lawyer at all?

Why not nominate Oprah or Barbara Walters?

former law student said...

Sotomayor has indicated that she thinks that her unique experiences (like she is the only one with unique experiences...what hubris) makes her MORE qualified to make BETTER decisions.

MORE experience is better than LESS, and even better than NONE AT ALL.

Put it this way: we all have blind spots based on our upbringing and experience. The Court will see more clearly when it includes someone whose blind spot is located in a different place.

Lem said...

I’ll say one thing in her favor (by way of the meme Althouse has discovered ;)

If it is true that she’s not a “legal giant”, she could force (by the nature of her diminutive opinions) the other “legal giants” to show how good they really are. If they are any good.

Why should the "giants" fear her?

NKVD said...

Wait, what? That's not Oprah? I thought they did nominate Oprah. Come on, that's Oprah.

downtownlad said...

Equal protection under the law?

Since when do conservatives believe in equal protection?

They certainly don't believe in equal protection for women. They don't believe in equal protection for gays. And if you look at historical decisions, they definitely don't believe in equal protection for minorities.

Oh yes - they believe in equal protection when it comes to Bush Vs. Gore, but that only applies for that one decision - and then goes "poof".

PJ said...

I'd bet she would acknowledge that there are lots of different experiences and that white men also learn from their experiences and may become wise and become better judges because of it.Yes, I'd bet that in response to a follow-up question she'd be smart enough to acknowledge those things. But this was about interpreting the text wasn't it? So let's review the text:

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.First, observe that the "woman" in "Latina woman" is superfluous and shows a desire to emphasize both aspects of her identity. Second, it's unclear whether the "wise" is intended to be restrictive -- Sotomayor may think that only "wise" Latinas would on balance reach better conclusions than people with pallid penises, or she may think that every Latinas is superior in wisdom because of the "richness of her experiences." Let's give her the benefit of the doubt and say she meant the former. Certainly, however, the text indicates that the "richness of her experiences" is simply not accessible to the white male, because there is no way he could have "lived that life." He may have different rich experiences, to be sure, but Sotomayor "would hope" that her Latina kind of rich experiences would "more often than not" result in "a better conclusion" than his.

What kind of person would hope for such a thing?

Sofa King said...

You know, if you want to flaunt your allegiance to textual interpretation you should do better with the text you purport to interpret. Sotomayor said: "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 problem is she's not qualifying this statement at all to cases where such "experiences" would be relevant. She seems to be saying that in general, she "would hope" (which everyone knows is an idiom for "fully expect," i.e., if such were not the case, then something would be seriously amiss) that her background improves (or at least makes it far easier for her to improve upon) the judgment of those without such a background.

Put another way, grant for a moment the charitable meaning of her remarks - that different backgrounds give people different insights, and that therefore there are some cases in which she would bring better judgment to bear. Does the corollary not also follow, that there are some cases in which white males would bring better judgment to bear than she would? If so, she doesn't appear to acknowledge that in her remarks, so we don't really know if she believes that or not.

To sum up, we have 2 propositions that could be supported by her remarks:

1. Latinas (or minorities in general) exhibit superior judgment in all cases because they have better experiences.
2. People of different backgrounds bring different insights to the judging process, none of which are more inherently valuable than the others.

The latter, I think, is supportable but the former is not.

Diamondhead said...

"Based purely on her credentials, she's more qualified than Scalia was at the time. Princeton beats Georgetown and Yale Law beats Harvard Law."

Hilarious. There is no demonstration of brilliance more important than where one earned his/her degrees. Those are the only credentials you both to cite. I suppose this ranking system allows you to memorize the names of a few white-shoe institutions and categorize everyone accordingly. "Hmm, this person studied nuclear engineering at Penn State, but this person has a women's studies degree from Brown...let me just consult US News here... Ah, clearly, Brown beats Penn State, so the second person is smarter."

rhhardin said...

@JH cross burning.

Good example.

I'd say one that lead Thomas into error, as well.

al said...

Hoosier @ 11:40


Sotomayor wrote 380 majority opinions during her 11 years on the appeals court. Of those 380 opinions, the Supreme Court heard five of the cases and overturned her on three.


The 3 for 5 average is meaningless in terms of assessing her as a judge. However I think it will make a good soundbite opposing her if done right.

PatCA said...

MadisonMan,
Okay, it was the second post. And if that was in jest and doesn't count, why does the cartoon?

AJ Lynch said...

Althouse:

Is there such a thing as non real-world experience? If so, who determines which is which?

This wiseass would like to konw.

Lem said...

If was secure in my legal philosophy I would welcome someone like Sotomayor so I could put my stuff to the test.

John said...

"The Court will see more clearly when it includes someone whose blind spot is located in a different place."


Why is that? How is a woman who grew up in the Bronx and has never worked in the private sector going to empathize with a small business owner or someone from a small town? Indeed, Sotomayer showed an amazing callousness towards the New Haven firefighters. One of the plaintiffs denied promotion was dyslexic and spent 100s of dollars paying his friends to help him study for the test. Yet, Sotomayer was unable to empathize with his cause. She found the cause of blacks and Hispanics who were not handicapped and didn't work as hard to be more compelling. She clearly has no empathy or understanding for white people. How is having that blind spot a good thing?

Too many jims said...

downtownlad said...
Equal protection under the law?

Since when do conservatives believe in equal protection?
I seem to recall this one time.

daveUSA said...

I agree, mostly, and it is unfair; but that is what you get when you let 'affirmative action' run wild. When I see a women or minority in a higher possition that is the first (almost) thing that crosses my mind. Is it fair, maybe not, but is affirmative action fair for minorities. I say no.

downtownlad said...

Daimondhead - You're the one saying Sotomayor is an imbecile, solely because she's an Hispanic Female.

She had more judicial experience than Scalia. She did better as an undergraduate. She went to a better law school, and she held more important editorial positions at Law School.

She'll make a much better judge than that wop Scalia.

John said...

"She'll make a much better judge than that wop Scalia."

Because throwing in a racial epitath is always a good way to make a point. Are you for real or just performance art?

Lem said...

She'll make a much better judge than that wop Scalia.

I wouldn’t put money on that ;)

Diamondhead said...

"Daimondhead - You're the one saying Sotomayor is an imbecile, solely because she's an Hispanic Female."

I didn't say anything remotely like that. But, typical discussion strategy for your side.

former law student said...

Does the corollary not also follow, that there are some cases in which white males would bring better judgment to bear than she would?

Having worked in a white male dominated world for so long, Sotomayor demonstrated she can empathize with the white male perspective. White males who have worked in different milieux (e.g. matriarchal Asian cultures) could probably do as well.

Quayle said...

They [conservatives] don't believe in equal protection for gays.

As equal protection means that no state shall deny to any person within its jurisdiction the equal protection of the laws, I am confident that conservatives absolutely do believe in EP for gays.

A so-called straight person can't marry another person of the same sex, and a person that labels him or herself gay can't either, nor can a black, a Jew, a Redsox fan, a Mormon, or any other "group."

That is equal protection - the law applies to all equally.

William said...

There's a paradox here. The fact that she is Hispanic and a woman gives her an edge in the appointment. However, she is many clicks off a stereotypical Latin or female. Her experience as a woman does not include motherhood or marriage. Her experience as a working Latina does not include any actual working class experiences. She came down the river not in the bubble of birth privilege but in the bubble of scholarships and the choice jobs given to scholarship students. She has never known the futility of a bad marriage or a dead end job. Her experience is far from typical of the wretched fate of many women. ... I am not saying that there is anything wrong about this. I just wish to point out that her actual identity does not coincide with the identity that identity politics claims she should have.....She can claim to have greater empathy towards people who look like her. I can claim with equal validity that she lacks empathy toward people who look like the employers of people who look like her. I would hope that the aspiration for justice would trump more emotive feelings in the heart of a judge.

rocketeer67 said...

In the richness of my experience, I have met dozens of truly stupid people with degrees from Georgetown, Princeton, Harvard and Yale.

I would hope that a hungry jurist with a degree from a good state university law school would more often than not reach a better conclusion than a yawning mediocrity with a fancy degree from a groupthink-reinforcing Ivy League "intellectual" puppy mill.

former law student said...

One of the plaintiffs denied promotion was dyslexic and spent 100s of dollars paying his friends to help him study for the test.

Nobody got promoted, so everyone who spent time effort and money in order to take the test is equally aggrieved. Hopefully his studying will make him a more effective firefighter.

John said...

"Having worked in a white male dominated world for so long, Sotomayor demonstrated she can empathize with the white male perspective."

What evidence is there of that? The only evidence I have seen is the New Haven case where she did exactly the opposite. Further, we have her speech where she says that Latinos are superior to whites.

Kirk Parker said...

hawkeyedjb,

Why don't people recognize irony when they see it?

Bart Hall (Kansas, USA) said...

The deeper issue in this all is the preponderance of Ivy-League-educated judges and justices. Therin lies the narrowness of perspective, of greater concern to me than the usually identity politics piffle.

SCOTUS needs rather desperately some deep experience in commercial law, contracts, and property rights.

Unfortunately Sota's approach to the latter is amply demonstrated in Dillard and (if confirmed) would suggest that Kelo was only the beginning of a furious assault on private property rights by governments at all levels.

John said...

"Nobody got promoted, so everyone who spent time effort and money in order to take the test is equally aggrieved. Hopefully his studying will make him a more effective firefighter."

No one got promoted because the wrong color of people passed the test. The guy worked his ass off and studied and didn't get promoted despite passing the test because white people were not allowed to succeed.

Palladian said...

downtownlad, you have proudly proclaimed your lack of empathy many, many times. Why, suddenly, do you claim to want a Supreme Court justice with "empathy"?

Widmerpool said...

FLS,

Were I on your side I would steer well clear of that stinkeroo of a case with the firefighters - dead cert you lose - and in the court of public opinion too.

former law student said...

What evidence is there of that?

She.is.a.judge.on.the.Second.Circuit.Court.of.Appeals. Not.a.manicurist.in.a.Bronx.beauty.parlor.

An outsider cannot make it in a male-dominated world without understanding how white men think, their value system, etc. etc. Outsiders who succeed have been careful students of the white man.

MadisonMan said...

She has never known the futility of a bad marriage

Well, she is divorced.

@PatCA: You can argue that the cartoon is in jest, but I'm not sure I would believe it. Like I said, I thought the althouse list of four was tongue-in-cheek; at the very least, it is an incomplete list of why she's happy that Sotomayor was nominated.

rhhardin said...

Because throwing in a racial epitath is always a good way to make a point.

Homphobic epitaph news real audio October 30, 2001.

mariner said...

"When a white man gets onto the Supreme Court, it's because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don't you see how unfair this marginalization is?"

This is a load of crap, Althouse. I expected better from you.

Sotomayor herself said that she believed being a Hispanic woman meant she would make better decisions than a white man.

She's a racist and unfit for the High Court.

John said...

"An outsider cannot make it in a male-dominated world without understanding how white men think, their value system, etc. etc. Outsiders who succeed have been careful students of the white man."

That is the dumbest thing I have ever heard in my life. If it wasn't so stupid it would be insulting. Just because someone succeeds, doesn't mean that they aren't racists or have any emapthy towards another group. John Rocker succeeded in baseball but hated latins and asians who made up the majority of baseball players.

MnMark said...

What do you know about the how human mind works that makes you think that our reasoning is abstracted from our real-world context?....The question is what human beings do, not what you wish they could do and would do.Yes, judges' decisions will be swayed by their race and gender and other aspects of their identity. And since that is the case, let's stop pretending that people will behave as though race doesn't matter. In that case, I want people making the decisions who are of MY race and MY gender.

This kind of liberal have-it-both-ways stuff drives me crazy. For much of the last century, non-whites and women were convincing white men to give up power over the country they conquered and built on the basis of the argument that race and gender should not matter, and that people should be based on the content of their character. The white men in power said, "OK, we'll take you at your word that you really want a society where race and gender does not matter," and they abolished slavery, gave blacks, Indians, and women the vote, outlawed discrimination, and so on. No non-white or woman forced them to do this. They did it because of the seeming rightness of the argument.

But as soon as the non-whites think they are behind closed doors and out of earshot, we start hearing how actually they have no interest whatsoever in ignoring race. They want power for their race, and as their power is growing, sometimes their sense of triumphalism and gloating slips out and they say something that betrays their real feelings - like "wise latinas make better decisions than white males".

I say: fine. Bring it on. What's good for the Latina is good for the Gringo. Let's agree that the idea that people will behave as though only character matters is idealistic nonsense. And therefore it comes down to power and whose people have the power. If that's how it is, I want MY people to have the power. I want white men running things.

onparkstreet said...

@ John Althouse Cohen:

Yes, I do like the way he described Sotomayor in his pretty speech - it is absolutely the correct thing to say. Unfortunately, it's not the first time I've heard a pretty speech from this President. Whether he actually means what he says, well..... :)

(Hey, he won. He gets to pick. She seems reasonable enough, given what you lawerly smarty smarts say. But, my natural grumpiness lumped in the 'wise latina' stuff with the Age of Blater stuff. It grates, for some reason, that kind of nonsense speaking).

Here's the 'blather' post I was talking about

http://chicagoboyz.net/archives/7167.html

downtownlad said...

Guess what Palladian - I don't pretend to be a judge.

I favor limited government, so I want a judge to have a healthy dose of skepticism when it comes to the law.

And yes, that does require a judge to put themselves in the plaintiffs shoes and ask if the law is fair. Is the law unconstitutional? That requires empathy.

Scalia has empathy when it comes to religious people. When it cames to gay people, he automatically rules against them, no matter what the case.

Sotomayor also sided with a racist cop when it came to free speech. That's also an example of empathy, even though the cop was despicable, - and I think she got that case right.

Der Hahn said...

I see a cartoon that suggests Sotomayor is willing to ignore the Constitution (and by extension, other legal guideposts such as the text of the law and precedent) in favor of ordering results that she finds pleasing based on her politics. Several examples of Sotomayor expressing opinions similar to this are widely known now.

I don't see anything about her not being a 'real judge'.

If that's what you think the meme is then in a backhanded way you're pointing out most people don't consider giving benefits to people that look like you and a desire to 'stick it to the Man' to be qualities that 'a real judge' (i.e. a fair one) should have.

Fritz said...

Ann wrote: "Trying to portray her as bigoted because of that statement is really forced and absurd."

She and Justice Thomas have very similar experiences. He grew out of his anger and militancy; Sotomayer hasn't. Her remarks are offensive, they are racial stereotyping.

Sloanasaurus said...

I don't care if the court has 9 women or 9 hispanics on it. I just want to be treated equally under the law when I appear before the court. The ability to wear the blindfold is the most important quality for a judge.

With Sotomayer, there will be no blindfold and no equality. As Obama desires, she will "empathize" and, therefore, support some individuals and groups over others.

Aaron said...

Former law student:

> White males have empathy for other white males -- it's built into human nature.

Don’t shove your prejudices on me.

> Blindness to this is called privilege.

So you think that Dr. King’s dream is unrealistic, then?

> What would you call centuries of white men picking other white men?

Presuming you mean for racial and gender-based reasons, you seem to believe in something called payback so that I, who have never discriminated against any woman or minority, should be punished because I have the same pigmentation and spare parts as people in the past who did. But what is that but rank racism and sexism?

Mind you, I support some affirmative action, but on the theory of correcting current bigotry, not because of the past, and bluntly I support affirmative action in the creation of opportunity, not in ensuring a certain outcome which you apparently support.

Indeed, you are sharing the same myopism I criticized in Soto the other day. Yes I am a white man. And because I was born with a disability, I was driven out of high school. Does that count as disadvantaged in your eyes?

> you actually have to go outside your comfort zone and pick someone who doesn't remind you of you.

And thus obama picked a liberal minority law professor. Because he was going out of his comfort zone, you know. /sarcasm

And can you back up your claim that Bush was biased to pick Roberts and Alito?

Lem

Careful. That sounds an awful lot like the old plea for the representation of mediocre people on the court.

Downtown

> Since when do conservatives believe in equal protection?

Well, in case you missed something, republicans INVENTED equal protection. They were the first to explicitly write it into the constitution, and it was republican justices who started to enforce it.

But then the fact you called Scalia a “wop” is the perfect demonstration of how much you care about equality.

Diamondhead

“Yale Law beats Harvard Law."

As a Yalie, it is contrary to my self-interest to say this, so I hope you take this with a little extra credence. If Yale is better, it is a game of inches not miles. And I would say the best HLS grad beats the worst YLS grad any day of the week. Let’s judge each candidate as an individual and not just label them according to school.

That being said, Soto isn’t stupid or unqualified in terms of academics or experience. My problem is solely with her racist/sexist comments.

Ralph said...

Y'all missed the joke in the cartoon. Someone in the press asked Obama a pointed question!

mariner said...

traditionalguy:
Time out: The same Lady's nomination under consideration would have been a coup and greatly admired if made by Bush, like Thomas' nomination.

Speak for yourself. Would you have looked at her nomination any differently?

I would not. This woman is openly racist and I'm appalled that she will probably be seated.

former law student said...

I would steer well clear of that stinkeroo of a case with the firefighters

Sotomayor and the other judges followed the law. Would you rather that judges told the fire department who to hire?

While Ricci was disappointed, disappointment is a part of life most adults have come to accept. Read the decision for yourself and show me where the racial discrimination took place. (get the .pdf for the whole thing.)

United States Court of Appeals, Second Circuit Frank RICCI v. John DESTEFANO Argued: Dec. 10, 2007. Decided: June 9, 2008.
Before POOLER, SACK and SOTOMAYOR, Circuit Judges.

PER CURIAM:

We withdraw our Summary Order of February 15, 2008. Ricci v. DeStefano, 2008 U.S.App.
LEXIS 3293, 2008 WL 410436 (2d Cir. Feb. 15, 2008).

Plaintiffs appeal from a judgment of the United States District Court for the District of
Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn.,
Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration.
Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.
CONCLUSION
The judgment of the district court is AFFIRMED.


http://www.jmls.edu/faculty_pages/schwinn/pdf/Riccidecision.pdf.

AJ Lynch said...

In the cartoon, I noticed there are very few minorities among the members of the press.

At least that part of the cartoon is indesputable. Heh.

Bruce Hayden said...

Nobody got promoted, so everyone who spent time effort and money in order to take the test is equally aggrieved. Hopefully his studying will make him a more effective firefighter.

Not everyone passed the test or was otherwise qualified. The city spent a lot of time and effort trying to come up with a test that was both job related and race neutral. And then when the wrong people did best on the test, she approved of refusing to allow the promotions.

If you really did go to law school, you should know that not everyone who took the test has a colorable cause of action here, or at least from that time.

I do think though that the city's refusal to promote anyone since then (or its inability due to this situation) may possibly give some others a cause of action, given that the pipeline is now clogged.

PJ said...

I favor limited government, so I want a judge to have a healthy dose of skepticism when it comes to the law. And yes, that does require a judge to put themselves in the plaintiffs shoes and ask if the law is fair.DTL, I also favor limited government, but I see some tension between that and your statement that judges must sometimes put themselves in the plaintiff's shoes. A plaintiff is by definition someone who is going into court and asking the government to exercise power in some way. Sure, sometimes one part of the government (the court) will exercise power in such a way as to restrict another part, but in most ways a plaintiff-friendly court is a government-power-expanding court.

(BTW, can anyone tell me the trick to getting a space between an italicized quotation and my response?)

former law student said...

she approved of refusing to allow the promotions.

She refused to force the promostions. She did not meddle with how the New Haven Fire Department chooses its management personnel. This is the opposite of judicial activism.

Ralph said...

Put a return in before you close the italics.

former law student said...

Not everyone passed the test or was otherwise qualified. The city spent a lot of time and effort trying to come up with a test that was both job related and race neutral.

What if, after all this effort, only black people passed the test. Would you still urge that the high scorers be promoted? Or would you allow the fire department to be suspiciious of the skewed result, and cancel the test?

Lem said...

It's about time Scalia learns the salsa ;)

Fritz said...

Considering how hard she worked to get into Princeton and Yale, she would appreciate all the hard work by the firefighters. They were evil white males, and we know what she thinks of white males.

Diamondhead said...

Aaron, I think you kind of missed my point - which was basically the same as yours.

Widmerpool said...

FLS,

A dose of reality for you: If only exclusively black firefighters had passed the test, and the city cancelled it, I am sure the black firefighters would have won in court and the wise Latina would have sided with them. That's why this case is viewed as a nighmare by those of your political persuasion.

former law student said...

They were evil white males, and we know what she thinks of white males.

What about Judge Sack, who was also on the panel? Is he a self-hating white male?

What about the great Guido Calabresi, who opposed en banc review of the decision? Is he a self-hating goomba? (although in the case of Ricci v. DeStefano, where would a paisan's sympathy naturally lie?)

Aaron said...

Former law student

She followed the law in Ricci?

The court below said that no discrimination occurred at all because they threw out the results.

Imagine if the races were reversed.

Before test: “Okay everyone take this test and we will decide who is promoted based on it.”

After test: “Oh no, too many black people will be promoted. Okay, forget the test then. Let’s use a method that gets us a sufficient number of white people.”

If that happened, black people would be apoplectic, and rightly so.

Now, given there is such a thing as affirmative action, you might be justified in saying that even though NH discriminated against the white firefighters, it is okay. But to pretend it is not discrimination at all is contrary to law. It is unquestionably discrimination and the only question is whether it can be justified or not.

The Ricci decision was s---. The appeals court should have reversed it on at least that issue. But they chose to praise it was well-reasoned. Sheesh.

Aaron said...

Diamond

Um, yeah, you are right. my apologies.

Bruce Hayden said...

The problem that I see with the New Haven firefighter case is that the judges there really do seem to be racists to me there, looking to equality of results (i.e. disparate impact), as opposed to equality of opportunity.

There is an interesting Slate article on the case, suggesting that the panel's failure to actually grapple with the merits of the case may have helped it get Cert., instead of burying it, as they might have preferred.

The problem is that "Ricci is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws.", and what it could (I would argue likely will) do damage to is the legality of some "disparate impact" conclusions.

former law student said...

judges there really do seem to be racists to me there, looking to equality of results

Bruce: are you really a lawyer? The court looked for discriminatory intent and found none. In fact they found the Fire Department was trying hard as they could not to discriminate.

traditionalguy said...

Mariner...The Puerto Riccan culture is Spanish in its approach to authority and to family life when compared to the Anglo-saxon culture of Great Britain that settlers of the original 13 brought over with them. So there has been a necessary cultural mixing in the great American experiment. How again does Race War come out of the Cultures in question successfully living together as Americans? The New Orleans folks managed it with a mixture of French, Spanish, Negro, Scots Irish, Choctaw and many others from up river. Education and a religious tradition causes the best to come out of the cultures living together in cultural border towns. So don't get racial fears involved into something that is good.

Hoosier Daddy said...

Want it or not, we haven't been preventing it. White males have empathy for other white males -- it's built into human nature. Blindness to this is called privilege..

I guess then we should establish ethnic only courts so we can ensure the appropriate empathy is coming from the ‘right’ justices.

What would you call centuries of white men picking other white men? Objectivity? A merit-based system? .

So just clarify for me FLS, are you now advocating a get back at whitey policy in picking nominees? For a group who prides on being forward-thinking, you certainly seem to have a difficult time keeping your eyes off the rearview mirror.

former law student said...

even though NH discriminated against the white firefighters

How did NH discriminate against the white firefighters? Start with any definition of discrimination that you like.

elHombre said...

Althouse: Both Obama and Sotomayor have made statements that suggest they believe something that many lawprofs say all the time: That a judge's background experiences and understandings play a role in answering hard questions of interpretation.

Are you implying that's some kind of approbation? "Lawprofs say it all the time?" C'mon, Professor!

It's just a statement of the obvious, not an desirable aspirational goal.

If nobody else has done so, let me be the first to suggest an alternative interpretation:

Obama and Sotomayor will simply use this "something many lawprofs say all the time" to justify elevating empathy over impartiality; sort of a "whatever's fair" judicial philosophy.

Hell, why not?

Salamandyr said...

Considering Sotomayer's opinion regarding the incorporation of the 2nd Amendment, I question her respect for freedom, and her empathy for poor people living in crime-ridden areas.

A lot of the cases the Supreme Court is going to be deciding in upcoming days are going to hinge on expanding or limiting essential freedoms, in the area of gun rights, speech rights, rights of conscience, and most of all property rights. Based on what I've seen so far, and judging by the Presidents preferences, I hazard she's hostile to all of those fundamental freedoms.

Aaron said...

Former law stupid

> What if, after all this effort, only black people passed the test. Would you still urge that the high scorers be promoted? Or would you allow the fire department to be suspiciious of the skewed result, and cancel the test?

That’s exactly my point. You wouldn’t deny that this was discrimination if they said “too many black people scored too high.” But the principle set down in that case says exactly that.

Or are you under the impression that discrimination is defined differently depending on the color of the person claiming discrimination?

The answer is, it isn’t. What might be confusing is that the Supreme Court has said that discrimination, once found, is easier to justify when it is affirmative action which by definition can’t include white people. But in all of those affirmative action cases, they haven’t denied that there is a racial discrimination. Likewise, when you are guarding against disparate impact discrimination, some kind of literal discrimination is inevitable, but it might be justified.

> What about Judge Sack, who was also on the panel? Is he a self-hating white male?

You and Soto are the one who thinks that ethnicity/gender is destiny. The rest of us think we should be judged not by the color of our skins, etc.

> What about the great Guido Calabresi, who opposed en banc review of the decision?

Guido is a smart guy, but he is an activist with flashing neon sign designating himself as such. He told me all about how the Clinton administration did their best to keep the senate unaware of what he actually has written on the subject. It always struck me as a coward’s way out; if you can’t honestly say what you are doing, maybe you shouldn’t be doing it.

> Is he a self-hating goomba?

Do you see how ugly your identity politics becomes after a while?

former law student said...

are you now advocating a get back at whitey policy in picking nominees?No. I'm trying to undercut the assumption that white men picking white men is evidence of a meritocracy.

John Stodder said...

Calling Sotomayor is racist is about the lamest thing I've seen in politics for...well, about a week, but still.

She is completely, utterly, qualified. Seriously. Those who are fearing some kind of radical Obama version of jurisprudence should keep their powder dry. She ain't it.

I do think Obama blew the launch with his empathy comment. Having told us to expect someone who keeps a "living Constitution" as a pet, any Obama nominee would have certainly come in for this kind of criticism unless he had reversed field and appointed a hard-boiled hanging judge.

Seriously, Obama is frustrating and distressing in a number of ways, especially his complete insensitivity to the limits of federal spending and power. But the harsh response to Sotomayor reflects nothing less than Obama Derangement Syndrome. It's no prettier than BDS. I implore conservatives to focus on other areas where Obama is about to make some epic mistakes.

former law student said...

You wouldn’t deny that this was discrimination if they said “too many black people scored too high"

Don't shove your prejudices onto me.

Do you see how ugly your identity politics becomes after a while?

I was questioning the characterization of Sotomayor as someone who thought white males were evil

Dust Bunny Queen said...

other areas where Obama is about to make some epic mistakes.

About to? !!!

You don't think that completely destroying the economy of the US and guaranteeing that no one is going to want to buy a GM car for the foreseeable future or pretty much any American made car, putting us into trillions of dollars of debt that we will never be able to recover from and practically insuring that we go into double digit inflation if not hyper-inflation isn't epic?

Beth said...

It does seem as though the conservatives here condemning Sotomayor for the Ricci decision are arguing for an outcome-based ruling (an "it's only fair" decision) rather than a ruling that applies the law, blindfold in place.

Nothing like consistency, is there?

Aaron said...

Former law student (sorry about before, Freudian slip)

> How did NH discriminate against the white firefighters? Start with any definition of discrimination that you like.

Easy, it took a bunch of scores that could have been blind as to the color of their skin and then classified them according to skin color, and when they didn’t like the racial makeup of the group they did something different than they would have if they had liked it. Indeed, when they were discussing the scores, they didn’t attach names to the scores, but they attached colors to them, because that was all they were in their mind: colors.

If there had been more non-whites in that pool, then N. Haven wouldn’t have canceled the test. That is exceedingly clear from the record. That is racial discrimination.

Now, that doesn’t end the inquiry. You then have to ask whether it is justified or not, because in fact not all racial classifications are illegal: they are just very, very suspect. Avoiding disparate impact discrimination is one potential justification. So is affirmative action. But you don’t pretend it is not discrimination. In that the lower court was clearly wrong, and the 2nd circuit was equally wrong.

> that white men picking white men is evidence of a meritocracy

The fact that people in the past have been prejudiced doesn’t justify prejudice.

> Don't shove your prejudices onto me.

I assumed you were a reasonable person opposed to racism. I apologize for the misunderstanding.

> I was questioning the characterization

You were using an ethnic slur. You shouldn’t have.

Aaron said...

John

If saying that people of a particular race or gender are better judges is not racism and sexism, then what is?

Aaron said...

Btw, here is the whole quote, and its even worse than reported:

"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 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 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."

Got that? Being a wise latina might be, according to her, the result of "inherent physiological ... differences." nice. didn't larry summers get pilloried (and rightly so) for saying something like that?

Palladian said...

"Calling Sotomayor is racist is about the lamest thing I've seen in politics for...well, about a week, but still."

The continual defense of her moronic comment is about the lamest thing I've seen from people who should know better in, well, about a day.

Big Mike said...

When a white man gets onto the Supreme Court, it's because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don't you see how unfair this marginalization is?

Well, Clarence Thomas could presumably answer your question, Professor.

Please keep in mind that Obama himself raised "empathy" as one of his leading criteria -- if not the leading criterion -- in selecting a justice for the USSC. Is it not manifestly unfair for you to suggest that those of us skeptical of Sotomayor's credentials and ability would be concerned?

I'm certain that from the perspective of a Con Law professor that Sotomayor is very exciting, but from my own perspective I'd like to see less excitement and more reason to believe in the predictability of the law. It shouldn't come down to how a particular swing vote Justice of the Supreme Court feels on a given day.


After all, drawing upon personal experiences led to Dred Scott and Plessy v. Ferguson did it not?

veni vidi vici said...

Racial "epitath"/"epitaph"???


FLS: "If you believe this, I have a large riveted steel structure I'd like to show you."

Just for once, FLS, I wish you'd stop boasting about the size of your dick...

elHombre said...

FLS wrote: How did NH discriminate against the white firefighters? Start with any definition of discrimination that you like.

Discrimination: treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit.

1. Treatment resulting in distinction against: Temporary disqualification from promotion;
2. Group: Non-minority firefighters (who passed the test);
3. Individual merit, i.e., passing the test, was actually a disqualifying factor.

Wow! That was pretty challenging.

ricpic said...

Aspiration is out. Payback is in.

Sully said...

we know for a fact, Ann, that you got your position at your university because of your gender.

Aaron said...

elhombre

I think you should write a book: "antidiscrimination law for dummies." just make sure there are lots of pictures for FLS.

Heh.

Alan said...

"Both Obama and Sotomayor have made statements that suggest they believe something that many lawprofs say all the time: That a judge's background experiences and understandings play a role in answering hard questions of interpretation.

"If you don't think that is true, think deeply about why you disagree."

There's no doubt that it's true, to some degree. The difference between Obama & Sotomayor, on the one hand, and those of us who object to their emphasis on race and gender, on the other, is as follows: Although those of us in the latter category agree that it's human nature for one's background to affect legal decisionmaking to some degree, these effects should be *neutralized* to the extent possible and judges should attempt to be objective. By contrast, Obama & Sotomayor play up what is actually a bias that jeopardizes objectivity as though it is a positive thing.

Not sure if someone else has made this point above; I haven't read through all 145 comments.

Palladian said...

"we know for a fact, Ann, that you got your position at your university because of your gender."

Wow, you know you should get a restraining order when the psycho stalkers start referring to themselves in the plural. Scary!

elHombre said...

She refused to force the promostions. She did not meddle with how the New Haven Fire Department chooses its management personnel. This is the opposite of judicial activism.

Actually, she permitted discrimination against the non-minority firemen who passed the test. Not a responsible exercise of judicial restraint.

Big Mike said...

@Beth, you've twisted Ricci precisely backwards. New Haven went to great lengths to develop a race-neutral test, and no one has ever suggested that the test was otherwise. The invalidation of the test's results can only mean discrimination against the successful test-takers on the basis of their having the "wrong" skin color or ethnic background.

In the world where you want to live this is perfectly rational. In the world where I want to live, people who work hard and who study hard deserve what their hard work has earned them. It should never be taken away on the grounds that the results are not what a pile of liberals "feels" is "just."

Fritz said...

Sully,
Right, Ann is hot.

garage mahal said...

Calling Sotomayor is racist is about the lamest thing I've seen in politics for...well, about a week, but still.

These are Republicans we're talking about here.

dbp said...

I would hope that a wise law professor and woman, such as Ann Althouse, with the richness of her experience would reach the obvious conclusion that Sotomayer thinks that a latina is in some way superior to a white male who hasn’t lived that life.
I don't see how that experience would make her superior, but maybe I don't understand it because I do all my thinking with one of those inferior white male brains.

Palladian said...

I posted this comment back in February when it seemed that Ginsburg's seat might become vacant:

Nina Totenberg was speculating about nominees should Ginsburg decide to retire. Apparently it's now the rule that a "woman's seat" on the Supreme Court has to be filled by a woman. Totenberg stated that Obama's list of possible nominees is "exclusively women" and going through her list, said this:

"Sonia Sotomayor who's a judge on the Second Circuit Court of Appeals and who also is something of a twofer, she's also... um, Hispanic."

So that's what it's come to. Apparently her two qualifications are that she's a woman and she's "hispanic". Tina seemed like she regretted saying it as she was saying it.
There was no mention of her qualifications, her scholarship, her political persuasion. That was the first time I'd ever heard about her. And the first and only thing I heard about her for a while, until I decided to research it myself, was that she was a "twofer".

Alex said...

Well I'm taking the Titus approach here. She isn't hot so no way.

former law student said...

The invalidation of the test's results can only mean discrimination against the successful test-takers on the basis of their having the "wrong" skin color or ethnic background.

In other words, any test that whites excel at, is race-neutral.

Joseph Hovsep said...

Judge S has written 5 majority ops which have been heard by the SC and been reversed 3 times.1. Trying to find a statistically significant thesis out of a sample of 5 is pretty difficult.

2. The average reversal rate for cases taken up by the Supreme Court is 75% (they tend to take appeals where the lower ruling is seen as problematic). Sotomayor's record is better than average and better than Alito's on that score. But, again, its not a useful way to evaluate judges.

former law student said...

she permitted discrimination against the non-minority firemen who passed the test.

To discriminate, you need intent. The Fire Department lacked intent, because they tried with every fiber in their being not to discriminate.

John Stodder said...

The continual defense of her moronic comment is about the lamest thing I've seen from people who should know better in, well, about a day..

Note: I wasn't defending her comment. But to extrapolate from a dumb remark made in a casual setting that she is a racist, i.e. has a deeply rooted belief in the superiority of her race, is political grandstanding at best, and paranoid at worst. The idea that the validity of one's point of view is determined by their upbringing and/or skin color is an unexamined belief shared almost universally among the left, and she was doing was parroting it. I doubt anyone can find any proof that this belief has played a role in her jurisprudence. From what I've read, it has not. Even Rush Limbaugh felt the need to modify it with his awkward "reverse-racist" coinage.

Palladian said...

"The Fire Department lacked intent, because they tried with every fiber in their being not to discriminate.'

LOL. You've never been to New Haven, have you?

Alex said...

John Stodder:

Note: I wasn't defending her comment. But to extrapolate from a dumb remark made in a casual setting that she is a racist, i.e. has a deeply rooted belief in the superiority of her race, is political grandstanding at best, and paranoid at worst.
More intellectual dishonesty. If it was Alito/Roberts had said something like what Sotomayor said, you'd be all over em with "racist, KKK, Nazi". Stop it already!

John Stodder said...

On the New Haven case... obviously, I would disagree with Sotomayor's ruling. I'm not completely familiar with the current status of affirmative action law, but isn't strict scrutiny required if the effect of a given government policy is to exclude a class of people? Maybe the law is the problem, not the judge.

Aaron said...

Former law student, who apparently didn’t finish the class on racial discrimination

> In other words, any test that whites excel at, is race-neutral.

No, that is not what he is saying or I am saying. I am saying that they had to notice the race of the firefighters to notice a so-called disparity. That is a racial classification, a discrimination, which the supreme court has said for decades is inherently suspect.

The correct answer is to say it is discrimination and then try to justify it. Not easy to do, of course, but that is the law. And frankly I agree.

> To discriminate, you need intent.

Seriously, were you asleep in civil rights class? That absolutely isn’t true. Indeed, the entire theory of disparate impact discrimination generally holds that this kind of discrimination is very often unintentional.

Kirby Olson said...

I'ts "essentialist" to assume that demographics determines viewpoint, I think.

John said...

"Note: I wasn't defending her comment. But to extrapolate from a dumb remark made in a casual setting that she is a racist, i.e. has a deeply rooted belief in the superiority of her race, is political grandstanding at best, and paranoid at worst."

When people make racist statements that generally means they are racist. I don't sit around and tell collegues how such a wise midwestern white man is so able to judge. If I did, people would rightly think I was a racist. Moreover, her decision in the New Haven case gives context to what she considers to be the wisdom of Latinas. Whatever that wisdom is, it involves her being superior to everyone who doesn't look like her.

You and Ann are just guilty white people who are terrified of calling anyone of color a racist, regardless of how loathsome their behavior and comments are.

John Stodder said...

If it was Alito/Roberts had said something like what Sotomayor said, you'd be all over em with "racist, KKK, Nazi"..

In context, it would have been deranged for Alito or Roberts to say any such thing. The sheer stupidity of it would have been disqualifying, leaving aside the question of whether they were revealing racism.

In context, what Sotomayor said is a truism among left-wing scholars and activists, relating to the perceived superior authenticity of a person from a certain background with regard to issues that effect others in her class. It sucks, but that's our political culture now. We disdain Marxism everywhere but in the academy, where it has permeated everything. Go work on changing that.

I would be more concerned if there was a pattern in her decisions and prosecutions of favoring one group over another, and that pattern does not exist. She is not going to demand that the court vote her way on a case involving a Hispanic defendant by claiming "you don't get it." She is going to be a perfectly acceptable, probably unexceptional, justice.

Aaron said...

Former law student

and, btw, intent doesn't mean "evil intent." it just means "not by accident." They intentionally looked at the races of the firemen, and intentionally threw out the result because they didn't like the colors of the high scorers. that might be justified discrimination, but that is still discrimination. And from what the buzz i am getting about this case in the Sup. Ct. it will turn out not to even be justified.

Are you really going to endorse the view that when an entity throws out the results of a test because they don't like the racial break-down of the result, no racial classification, no racial discrimination, has occured because they were equally not promoted? Or are you going to admit that racial discrimination occured, but maybe it is justified?

Jim said...

When a Latina expressly says that she can reach a better decision solely by virtue of being Latina, that is racist. Pure and simple. Replace "Latina" with "white" and we wouldn't even be having this discussion at all because the person who said would have been run out of public office a long time ago. Somehow we're supposed to excuse or overlook her racism because she's not white as I see so many here bending over backwards to do. The logic pretzel both Ann and many of the commenters required not to read her statement as out and out racism is amazing.

She's a racist, and everyone who makes excuses for her racism is just as guilty. Either claiming special knowledge based on your race and gender is allowed for everyone (in which case I expect your full support for a KKK member to be seated on the Supreme Court at the earliest opportunity), or it isn't. This is a bright line issue: there is no shades of gray which allow a minority to say it but not a white person.

Beyond her racism, her intellectual laziness (which has been cited by her colleagues more than once in her decisions) and her flat-out wrongness (she's overturned 60% of the time) are more than enough to disqualify her from the highest court. Obama wants a liberal, fine: maybe he should try picking one that's actually qualified for the job.

John said...

"In context, what Sotomayor said is a truism among left-wing scholars and activists, relating to the perceived superior authenticity of a person from a certain background with regard to issues that effect others in her class. It sucks, but that's our political culture now"

So if Alito had said something like that to a KKK rally it would have been okay because that is their political culture? Bullshit. It shouldn't be our political culture. The Republicans in the Senate need to reem this woman mercilessly on this. Yeah, she will get confirmed, but it would leave no doubt that to Democrats at least, it is okay to be a racist as long as you are of the right color.

ricpic said...

How can Sotomayor - who acknowledges the aspiration to impartiality while simultaneously dismissing it as artificial and even inauthentic relative to her identity based partialities - be relied upon to make the effort to judge objectively?

John said...

"Obama wants a liberal, fine: maybe he should try picking one that's actually qualified for the job."

How about Cass Sunstein or Larry Tribe? Those are a couple of giant brains that no one could argue with. They are wildly more qualified than Sotomayer. But, I guess they don't bring the "wise Latina" prospective so were not considered.

Aaron said...

John

And if you are Ricci, a learning disabled firefighter who passed the officer test but had the results thrown out because you are white, and Sotomayer voted against your case, how would you feel about that comment?

The rules of judicial ethics concern itself not only with the reality of bias but the appearance of bias. Even if not actually biased, she has tainted herself with the appearance of bias. She should, at the very least, recuse herself from every case involving civil rights, a latina or a white male. Which means we are getting about half a justice, not a whole one.

We can do better than this.

Palladian said...

"She's a racist, and everyone who makes excuses for her racism is just as guilty."

YOU JUST DON'T GET IT DO YOU?! Minorities can never be guilty of racism, sexism or anything else. ONLY white people, Jews, and Asians maybe. BROWN people are pure of spirit. You fucking oppressors are getting what you deserve!

I'll be marching in West Hollywood tonight in white-face to protest in favor of Sonia Sotomayor's right to marry her gavel.

Palladian said...

"How about Cass Sunstein or Larry Tribe? Those are a couple of giant brains that no one could argue with. They are wildly more qualified than Sotomayer. But, I guess they don't bring the "wise Latina" prospective so were not considered."

LOL. Are you kidding?! Those fucking straight white males?! You act like this is about qualifications and choosing the best, smartest jurists or something!

John Stodder said...

So if Alito had said something like that to a KKK rally it would have been okay because that is their political culture? Bullshit..

Uh, no, that's not what I said. But go have fun with it.

It shouldn't be our political culture..

We agree. As I said twice. But wishing won't make it so.

The Republicans in the Senate need to reem this woman mercilessly on this..

I don't mind if they raise it and ask her to explain it. Reaming here? No, that would be politically foolish.

My original point was to say I thought calling Sotomayor a "racist" based on this comment was lame. I say that because this kind of name-calling was once exclusively the province of the demagogic elements of the left. If the right now wants to adopt it, well I guess you can, but how much more marginalized do you want to be?

Aaron said...

For instance, Connecticut's Code of Judicial Conduct has this to say on the subject of bias:

"A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned[.]"

Is it reasonable to question her impartiality, given that she has said that there are possibly inherent differences between latina wisdom and the wisdom of white males that makes latina wisdom better? Of course there is. indeed, so much so that on my spare time tonight, i am going to write a letter of complaint. She never should have sat in on an affirmative action case, period.

Ann Althouse said...

@elhombre I mean that it's basically banal common sense, heard all the time in law schools and not some unusual thing to say. Just the usual platitude, but it sounds alarming to outsiders because they're not used to hearing it. My guess is that she was mainly making the small talk that fits the environment in which she found herself. It was fluffy feel-good talk for the audience and not evidence that she's radical or hateful.

Dust Bunny Queen said...

In other words, any test that whites excel at, is race-neutral

Males tend to do better on math and spacial relationship testing and excel in careers that require those skills: such as navigation, nuclear physics, piloting aviation equipment, civil engineering.

Obviously those tests are not gender neutral and I insist that all such tests aforementioned be invalidated, restructured so that women will pass the tests and that we have a representative selection of women going forward piloting planes and designing bridges and high rise buildings. Going forward I will not be flying and will be checking to see just who has designed the bridges and buildings where I am putting my life into danger.

Blacks tend to do much better in certain athletic areas. Perhaps we should make black basketball players wear weights so they can't jump so high? Would that be good?

Not everyone is the same in the way that they process information. The test was designed to be as neutral as possible and the topic was the subjects that the applicants needed to know in order to do their jobs.

Call me crazy, but I would like to have the best qualified personnel in charge of emergency equipment and in emergency situations. I don't give a flying fig what color they are as long as they are the best qualified people to save MY LIFE!!.

Alex said...

Althouse - I'm not going to let you get away with that one. If a white male justice said something similar in a friendly environment, you would not let him off the hook. You are just SCARED TO DEATH to call racist because she's a minority.

John said...

"I mean that it's basically banal common sense, heard all the time in law schools and not some unusual thing to say. Just the usual platitude, but it sounds alarming to outsiders because they're not used to hearing it. My guess is that she was mainly making the small talk that fits the environment in which she found herself. It was fluffy feel-good talk for the audience and not evidence that she's radical or hateful."


Just a thought Ann. But perhaps it shouldn't be okay for people to say things like that. Perhaps it is objectionable to outsiders because it is you know objectionable. How does someone say something like that in small talk? Who talks like that? Come on Ann. That is really lame.

Palladian said...

"My guess is that she was mainly making the small talk that fits the environment in which she found herself. It was fluffy feel-good talk for the audience and not evidence that she's radical or hateful."

I know how she feels. Whenever I'm around my racist distant relatives I'm always mystically compelled to assert the superiority of the white race, in a casual, fluffy feel-good kind of way. It just sort of comes out. Nothing meant by it, of course!

Alex said...

Palladian - that makes too much sense. Althouse is simply scared.

John said...

"Whenever I'm around my racist distant relatives I'm always mystically compelled to assert the superiority of the white race, in a casual, fluffy feel-good kind of way. It just sort of comes out. Nothing meant by it, of course!"

LOL. That is great. If Ann were fair to her critics, she would post that one as an addendum to the original commment.

Palladian said...

For instance, my cousin Cletus was saying last month at the reunion that Obama was a bad President because he couldn't understand the experience of fully white people like us. He said it would take a wise white man to bring the richness of the white male reality to the people who just couldn't understand our experience. We all nodded. It's just something you do out in the sticks. It's expected.

Palladian said...

"LOL. That is great. If Ann were fair to her critics, she would post that one as an addendum to the original commment."

The problem is that people incubated in the womb of academia think, as I said earlier, that "minorities" are incapable of being racists.

Fritz said...

Do ya think he picker her because she is/was a smoker?

John said...

"He said it would take a wise white man to bring the richness of the white male reality to the people who just couldn't understand our experience."

Whenever I am bass fishing with my older brother, we always talk about our unique experiences as white men. Those experiences make us wiser and better suited for positions of responsibility than someone who hasn't lived the life. Certainly, there are a few credits to their race out there who might get it, but they are the exceptions. That is why they are such credits to their race.

I have these kinds of conversations over Miller Light and tacos all the time. Who doesn't really?

AJ Lynch said...

La Raza literally means The Race? That is AOK for minorities.

Stodder a few commenters here called Sonia a racist but most here don't believe that. However, I agree with you she needs to be asked and vetted about her statements and others (if they exist) that suggest her "real world" experiences are more valuable on the court than a typical white person (i.e Obama's granny). Heh.

John said...

"Just the usual platitude, but it sounds alarming to outsiders because they're not used to hearing it."

I just dropping an N bomb around black people disturbs them because they're not used to hearing it.

Aaron said...

Ann is actually close to the truth when she says that this kind of racism is accepted in the academia. There are alot of crazy sh-- you can say in a law school that you can't say anywhere else.

But why we the general public should accept it, is beyond me.

Again, a judge should recuse themselves when there is a reasonable question to their impartiality. This comment raises such a doubt in the Ricci case, at the very least. So now we have two problems: she may be a racist, and she definitely should have recused herself. And will have to do so in the future, I think.

Joseph Hovsep said...

"Intellectual dishonesty" might be defined as taking one sentence out of a longer nuanced talk (and one talk out of a 30 year career full of speeches and written opinions) to support a claim of unambiguous racism.

Going through life as a woman or as a racial minority or gay or poor or disabled affects your worldview and your wisdom in a different and valuable way than going through life as a rich white man. That doesn't mean that rich white men aren't wise or empathetic but they tend to be so in a different way and in a way that is already overrepresented in politics and law.

Of the 110 justices who have served on the SCOTUS, 106 have been white men. Do you think there is any relation between the demographic makeup of the court and the legal rights of white men relative to nonwhites and women throughout our history?

AJ Lynch said...

Palladian said:

"I know how she feels. Whenever I'm around my racist distant relatives I'm always mystically compelled to assert the superiority of the white race, in a casual, fluffy feel-good kind of way. It just sort of comes out. Nothing meant by it, of course!"

LOL. Althouse I dare you to put this up as a post. It warrants it.

Palladian said...

Oh, here comes Joseph Hovsep, the Althouse blog's queen of empathy! I'm surprised you could get through that comment without crying!

Palladian said...

"LOL. Althouse I dare you to put this up as a post. It warrants it."

No, I get quoted too much. I'm a white man, after all. How about some diversity! I can't possibly really understand anything at all, at least not with any richness, can I?

Synova said...

"And if you are Ricci, a learning disabled firefighter who passed the officer test but had the results thrown out because you are white, and Sotomayer voted against your case, how would you feel about that comment?"

Heh.

It's evidence of "privilege" isn't it? The white firefighters were all so completely blind to privilege that they studied their butts off to pass the test and Ricci studied even more than that because he considered himself disadvantaged and even spent money to study so he could pass the test.

Absolute *proof* of privilege, because there is no real racial privilege but what people take for granted and are unaware of.

Being unaware of privilege is what makes all white people racist and makes it impossible for minorities to be racist.

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