Obama has picked Sonia Sotomayor as the next Supreme Court nominee! …But already the bullshit begins:
“Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written,” said Wendy E. Long, counsel to the Judicial Confirmation Network, an activist group. “She thinks that judges should dictate policy, and that one’s sex, race and ethnicity ought to affect the decisions one renders from the bench.”
Riiiiiight. Like sex, race, and ethnicity doesn’t affect the decisions rendered by the white men who’ve dominated the court for all these years. Uh-huh. Yeah.
I’m too tired to really analyze this; just got back from Wiscon, where I got to meet several dozen ABW readers in person (hi, ya’ll!), and where the possibility of Sotomayor getting the nom was the subject of quite a few conversations. But I have to say, I’m bracing myself. Even though some are predicting smooth sailing in the confirmation process, I just don’t see conservatives letting this one slide, because she’s their worst nightmare. They’ve already tried to trash her by appealing to the worst intersectional stereotypes, painting her as domineering, a bully, and “not that smart”. In other words, an angry brown woman, wielding her inferior brown intellect like a girl-cootie-infested bludgeon. I predict this is only the beginning. The mouth-breather chorus has only begun to clear its throat, and I don’t want to see what it’s about to vomit up.
But for the time being, I’m just going to cheer.
I suspect it depends what you mean by smooth sailing. I find it hard to imagine that the few remaining moderate republicans will seriously oppose this pick. And that means there’s clearly enough votes to confirm her, even with the threat of a filibuster.
But I fully expect the radical right machine to go into action against her – if only as a fundraising tactic. How far they get among the more reasonable sector of the Republican party will be interesting to see.
Somewhat off topic but assuming she’s confirmed, does that bring the number of Catholic justices to 6?
Internet research confirms – a Sotomayor confirmation would take the Court to 6 Catholics, 2 Jews and 1 Protestant (Stevens, the oldest and widely thought to be the next most likely candidate for retirement; though Ginsburg could be next instead). That seems to me noteworthy, though I don’t really know what conclusions, if any, can be drawn from it.
I caught a few minutes of some asshole on the radio going on about a “slippery slope” of diversity. Sure, it’s politically smart for him to pick a Hispanic woman, this person said, but where do we go from here? Do we have a Native American justice, a Chinese-American justice, an Indian-American justice? Yeah … what if? My God! By the time whites make up only a plurality of Americans, they’ll be only a plurality on the Court.
I would conclude that a lot of past presidents have considered Catholics to be swing voters.
There are two schools of thought on this.
One is that you should try to be aware of who you are and where you are coming from, and should try somehow to compensate for and/or ignore your background to the greatest degree possible.
The other is that you should try to be aware of who you are and where you are coming from, but that you should feel free to disseminate your opinions and/or feelings without attempting to compensate for any effect on your background.
Obviously both sides are possible to do well, or poorly. This is really sort of a moral issue, albeit one where there is no definitive right/wrong, or good/bad answer to the question.
As applied to the judiciary, it can certainly affect your opinions. It’s difficult to state concisely, but at heart it really reflects the degree to which an individual judge signs on to an objective and/or idealist views of justice, as opposed to a subjective and/or realist view of justice. And people can certainly believe in either side of the coin without being morally problematic.
So: Sotomayor is apparently a believer in the second type of judicial analysis. I don’t think she’s amoral to have those beliefs, but since I’m a believer in the first type of analysis I hope that she doesn’t get confirmed.
Justice Oliver Wendell Holmes Jr. and noted almost a century ago that propertied white males have their own biases:
“Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” (dissenting from an opinion where the Court majority said that employers were free to demand as many hours of labor in a day as the employee would contract to work)
Judge Learned Hand made a similar point about the court decisions rejecting Progressive Era legislation, saying that the judges were influenced by their own status as belonging to the business owner rather than to the laborer class.
I’m going to repeat (mostly) a comment I made elsewhere.
At John Roberts’ confirmation hearing, he made a big deal of how neutral he would be, about how his job was like that of an umpire, just to apply the rules. I remember distinctly that he said he wouldn’t look out for the little guy if the law said the big guy was in the right.
What has been the result of this approach? In a recent New Yorker profile of Justice Roberts, Jeffrey Toobin said:
I think there are legitimate arguments to be made for the approach Roberts takes (though I disagree with it), but to pretend that such an approach is neutral and unbiased really chaps my hide.
I caught a similar thing on FB. The commenter suggested we’d wind up as the Lebanese Parliament. I can only surmise that, for the FB commenter, results are more important than processes in a meritocracy. It’s a position I’d find bewildering if I wasn’t sure that it was just poor cover for the commenter’s prejudices.
Given that there are some 300 million Americans and only nine spots on the Supreme Court, it would obviously be a statistical impossibility to represent every group exactly according to its proportion of the population. But the idea that if we go from eight white people to seven, we’ve reached some kind of horrible tipping point doesn’t make a lot of sense.
Do you think these folks would feel better if they ignored intersectionality and pretended she’s just a woman (i.e. default white) instead of a WoC? According to the 2000 Census, 80% of Puerto Ricans consider themselves “white,” and the largest components of the Puerto Rican gene pool are European (albeit mostly in the patrilineal line). And she’s not dark skinned. And technically, “Hispanic” refers to a linguistic grouping, not necessarily a racial one (as opposed to Latino/a).
So if the talk radio jerks squint, they could maintain the pleasing illusion that Sotomayor’s white and defer their terrors of whites’ no longer being the dominant group to another day.
That would work for some of them. That still leaves the problem of her being a woman, though.
I figure the woman part is less scary. Sort of like how we ended up with federal law prohibiting sex discrimination in the first place: a Southern Senator opposed the Civil Rights Act of 1964, and inserted a provision to include sex as well, reasoning that if PoC were going to be getting what he saw as a leg up by not being discriminated against, he’d better make sure that white women were not disadvantaged relative to women of color. Reactionary white men are generally much less troubled by the rise of white women to positions of power than that of PoC, because they feel reassured that these are their women, women who are generally the daughters and wives of other white men, and so it’s like the power still remains “in the family.”
[shrug] I’m no fan of Roberts–as i said above, both sides are possible to do well, or poorly.
I am uncomfortable with judges, prosecutors, and the like who appear not to try to counteract their own backgrounds. So a judge who is white but who strives towards making decisions which do not privilege whites and/or which are not biased by her white experience* is in my mind attempting to act ethically. In other words, she would seek to view herself as a judge who also happens to be white. OTOH, a judge who considers herself as a “voice for” whites–who thinks of herself as a white person who happens to work as a judge–would be a scary person to have on the bench.**
Similarly, a judge who is a member of ANY identity group (large or small, privileged or not) can attempt to act ethically by striving to make decisions which do not privilege her group and/or which are not biased by her experience* as a member of that group. And a judge who considers herself a “voice for” a certain identity group would be a scary person to have on the bench.
Sotomayor appears to be someone who considers it appropriate to deliberately include her background and various identity group memberships in her decision making. That makes her a scary person to have on the bench.
Of course, you can argue that those personal issues are perfectly OK to consider. Frequently this can be distilled to a claim that some bias is appropriate, because the deck is already stacked so far the other way. This may be the most compelling support of Sotomayor, but it’s a whole sight different than the usual arguments for a judge’s confirmation.
* although the latter is in many ways impossible to actually achieve.
** This assumes that one is looking for ‘objective’ justice, and not ‘better for me’ justice. IOW, it assumes that one would rather not have a biased individual on the bench, even if that declared bias happened to match your own beliefs. That’s arguably a bad assumption, since it appears to infrequently apply to liberals and conservatives alike.
Sailorman said:
Although I agree with the sentiment behind your stated ideal, I do have to say that my preference would be to have the “pulled-up-by-her-own-bootstraps” Latina judge with real hardship experience operating under the subjective view of justice rather than yet another rich hetero white male justice with little real world experience operating under the subjective view of justice (all while attempting to pass off his conservative racial and gender privilege as “the objective view” simply because the majority of the guys that wrote and passed the laws originally were also rich hetero white males with little real world experience).
Sometimes it’s nice to have someone pulling the other way to at least counteract some of the more extreme legalistic readings that occurs from the still-predominant hetero white male side trying to justify and maintain a still largely racist and sexist status quo (often simply because it is the status quo).
I mean, yeah, it would be great if we could rely on “purely objective” judges to interpret a “purely objective” legal code. Only we’ve had 200 years of mostly non-objective laws being interpreted by mostly non-objective judges skewing things in ways that are contrary to the spirit of “all men are created equal ” (for one, we still haven’t passed a constitutional amendment that officially and definitively says: “Oh yeah, that applies to women, too”).
And if we had relied solely upon “purely objective” judges to interpret our clearly not-really-objective laws, then blacks, latin@s, and women would have had to wait even longer for many of the rights they are now afforded thanks, at least initially, to judicial “subjective interpretation” rather than actual legislative action.
Sailorman, where has Sotomayor said she considers herself as a “voice for” women or PoC? Everything I have read from her says that while her experiences inform her decision-making, it is not in order to always decide on behalf of minority groups. I really think you should provide some basis for these claims.
I agree w/ PG, Sailorman. As far as I can tell, Sotomayor’s big sin was to verbalize her belief that experience informs judgment. I view that sin as a virtue. If you don’t think that your experiences inform your decisions, if you believe that you are totally objective, that is a scary thing. As Judge Roberts has shown us, stated objectivity and actual objectivity are two entirely different things.
@ Sailorman
What would constitute ignoring or counteracting your background in making decisions?
Ginsburg so frequently ends up in the opposition in cases that touch at all on gender discrimination that it is impossible to conclude she is not influenced by her gender. She quite clearly is not ignoring her identity. Is Ginsburg a scary person to have on the bench? (That she is my personal favorite, of course, shouldn’t stop you from giving an honest answer.)
Er, I don’t think I said what you are saying I said. I don’t think I need to provide basis for a claim I didn’t make.
But rather than get into a “why did you say that’s what I said” war, let me be explicit. This:
is not what I said.
What I *did* say is that she does not seem to be particularly upset about the possibility that her experiences will significantly affect her rulings, and that I think that from my point of view, the appropriate stance is for all judges to attempt to avoid such an effect.
OK, you agree and I disagree. I don’t think that is especially surprising; as I said this isn’t a “right answer” kind of disagreement.
Nobody is totally objective, of course. (And I said that, too, though you seem to be implying I missed it. Why are both you and PG doing the misquote thing? It probably isn’t intentional, but it’s frustrating. Use blockquotes, and then you won’t have the ‘incorrect summary’ problem.)
The issue is not only whether you are objective, but whether you adopt a philosophy that requires you to attempt to be objective. Sotomayor appears to be more comfortable with a lack of objectivity than I like. She may in fact be just as objective as someone who is striving towards objectivity, but I believe her intent is relevant.
Let me make this clear first: I am a process person. That means that I tend to look towards certain processes as superior, even when they give results (in a particular instance) which I don’t like. So for example, i don’t think things are “bad” cases if I don’t like the results; I tend to think they’re “bad” cases if I don’t like the logic of the opinion. Roe: good result, bad case. And so on.
Sotomayor is apparently fairly liberal, and as such I would like the results of having her on the bench. But I attempt to try to ignore that preference and to use the same criteria which I would have applied to a candidate whose results I wouldn’t like. If I apply fair weather criteria, then they aren’t really criteria at all, are they?
Ignoring your background is often a synonym for attempting to understand the backgrounds, views, and positions of your opponents. It is extremely difficult to do well; I try constantly myself.
It is not so hard to imagine doing. If you are male and if you are attempting to interact with someone female in a fashion which reflects true gender equality, and if you are attempting to assess your own standing and bias and somehow compensate for it, etc; if you are thinking hard and trying (often unsuccessfully, but trying) to see things as if you were not male, then you are doing what I am talking about.
If you are male and you enter an interaction thinking, “well, males may think differently, possibly due to inherent physiological differences;*” and “well, males may be justified in coming to different conclusions;**” and possibly “well, being male may well mean your conclusions are better;***” then you are not doing what I am talking about.
Now: When Sotomayor does it, it has a different effect than when Roberts does it. It’s liberal (which I like) and perhaps it benefits people who are oppressed by government (which I like) and underserved groups (which I like.) But of course, if I decided to ignore what Sotomayor was doing just because I liked the results… well, I’d be cheating, wouldn’t I? It’s not any better just because it benefits the left.
* 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. -Sotomayor.
**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. -Sotomayor.
***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. -Sotomayor.
I don’t understand where you are getting this from. She admits that her decisions will be influenced by her experience just as everybody’s decisions are influenced by their experiences and you come up with this summary of her position? How? Is it because she said that decisions are inevitably influenced by experience? I’m missing how you’re getting there.
I understand your position wrt attempted objectivity, I just don’t see why you think Sotomayor makes less of an attempt than Judge Doe. Is it just that she admitted that experience colors her judgment and that is a taboo thing to say? Does her judicial history show that she doesn’t try to be objective? Does her judicial history show bad processes in your opinion?
SM,
Apologies for misstating your position. But now that you have explained it more fully, could you put forward a case in which Sotomayor actually did what you’re saying she does in a case, or is your entire basis for your opposition to her in a speech she gave several years ago to a Latino group? She’s been a 2d. Cir. judge for a decade, so there’s a pretty enormous paper trail of actual work deciding cases, including oral arguments (are the questions she asks indicating that she believes Latinas superior to white dudes?) and her written opinions.
“Ignoring your background is often a synonym for attempting to understand the backgrounds, views, and positions of your opponents.”
Huh? In my experience, if I’m pretending that I was dropped on the planet fully sprung from Zeus’s forehead, I’m requiring other people to pretend the same about themselves. Why does it make sense that a person who ignores her own background is thereby attempting to understand her opponent’s background? It seems far more likely that if I am able to recognize my background, I also extend that grace and courtesy to my opponents.
I think PG’s comment on the other Sotomayor post – the one with the full text of her speech – is relevant here, that people from disadvantaged groups tend to be more familiar with the experiences and perspectives of people from dominant groups than the reverse.
PG, that line which you are questioning is explained in considerably more detail in the three paragraphs below.
SM, I read the three paragraphs and they provided no more rationale for why I should believe that ignoring one’s own background is synonymous with being attentive to others’ backgrounds than the sentence I quoted did. Indeed, this:
is not the same as your idea that ignoring one’s background is the way to see others’ backgrounds. After all, “trying to see things as if you were not male” =/= “trying to see things as if you were female.”
Instead, by stripping yourself of gender, you’re putting forward a platonically gender-less mind. This just goes back to what I’ve already said: pretending you have no race/gender/orientation/etc. generally leads to pretending that others don’t either, and insisting that they make their arguments on an abstracted plane without reference to their own experiences.
Which is how you end up with nine men saying that pregnancy discrimination is not gender discrimination.
chingona,
To be fair, three men (Marshall, Brennan and Douglas) dissented in Geduldig v. Aiello, and three men (Marshall, Brennan and Stevens) dissented in General Electric v. Gilbert. As Judge Sotomayor’s speech noted,
My bad, and my apologies to the gentlemen.
And to be even more fair, there are conservative and/or libertarian women who would argue pregnancy discrimination is not gender discrimination.
But I don’t think a Supreme Court made up of nine women, no matter what their judicial philosophy, would have decided those cases the way they were decided.
chingona,
Agreed, and I’m particularly sorry for that reason that Bush didn’t appoint a woman to replace O’Connor after all — it would have been interesting to see a right-wing woman’s perspective.
There is a difference between saying “I have no identity!” and saying “I have an identity, but I am going to do my best to identify how it might be biasing me away from objectivity, and to counter that bias.”
I feel like i am trying to explain that, and for some reason it is not working. If you can’t see that difference based on my explanation, then you and I are not communicating properly–as much my fault as yours, I’m sure–and perhaps the conversation is not going to be especially productive.
As for the abstraction: Well, yes, sort of. I am open to either type of argument, from the “personal experiences” type to the abstract type. I generally prefer the latter, and by and large I think it is more effective. I also think it is preferable for judges, given how they practice. On the justice/fairness scale, I lean heavily towards the justice end, though as I said this seems more an issue of personal preference than morality.
But generally, the “reference to own experiences” thing is only workable if it is practiced by both sides, right? I don’t see any reason why one side would be allowed to reference their own experience as argumentative fodder, but the other side would not. So then it becomes an experience v. experience thing, and that is basically a battle of anecdotes. not very likely to be as useful, I don’t think. At least in my experience ;)
SM,
I got the impression that you were saying, “Ignoring your background is often a synonym for attempting to understand the backgrounds, views, and positions of your opponents.” This does not seem consistent with your concern about a battle of anecdotes if people’s experiences get introduced into the discussion.
Moreover, I think it’s problematic to evaluate what judge does based on how you or I behave in making arguments. We are speaking as litigators looking for the best way to make a case for our side, which is a very different thought process from that employed by a judge in evaluating the litigators’ arguments. A judge should not be thinking in the terms that you have been using about “opponents” and “one side referencing their experiences.”
You seem to be setting up Judge Sotomayor as being a “side” or “opponent,” and I’m not sure why.
Sailorman,
I’m still curious if your concern about Sotomayor is based on the speech she gave or her record or both.
I think that the main difference of opinion (on this thread) is between people who think there is such a thing as “objectivity” and people who think that there is not. If you believe as a factual matter that there is no such thing as completely un-biased “objectivity” then you cannot, by definition, see it as a moral imperative to strive for it.
Actually, I think the portion of Sotomayor’s talk quoted in the comment #25, comes as close as is logically possible for someone who does not believe in a Platonic “objectivity” to come to saying that she will strive to reach the objective truth in spite of her own biases of knowledge and experience. “I will use my experience to help me understand the experiences of others, but cannot know to what degree my experience being ME will affect me,” is actually extremely close to what Sailorman says he’s looking for (someone who acknowledges that their experience affects them, and uses that to strive to understand how the experiences of others are different) – it just leaves out the acceptance of the fact that there is any real, true objective truth that can be divined by “leaving aside” one’s subjectivity.
Personally, I’d rather have a justice who is ACTUALLY good at understanding the experiences of lots of different people than one who “strives to find the objective” but ends up (inadvertantly, accidentally, whatever, who cares) basing their decisions on their own experience and calling it universally objective. I care more about the results (since they are what actually affect MY RIGHTS) than the intention of the judge. Also, I think that people are incredibly good at deluding themselves into thinking they’re being “objective” when really they’re benefiting their own group. So intention doesn’t hold much value to me. Because it’s easy to say you have good intentions. It’s hard to actually have the introspection to accurately identify where your concept of “objective” comes from.
This helps me get at what you’re getting at better than your previous comments. I also get what you’re saying about process, and I get why it matters – poorly argued decisions with “good” outcomes are more easily undone. But I still have a hang-up.
Furry Cat Herder, in the other thread, mentions being aware of “disparate impact.” Certainly, white men can make an effort to be aware of disparate impact (or PoC can decide that disparate impact is something the law should not concern itself with). But women and non-white men will almost always be more aware of disparate impact.
Why is that? Presumably the answer is life experience. So, are they not being objective when they bring awareness of disparate impact to their decisions? To counter their natural bias, which comes from their life experience, should they discount or downplay their concerns about disparate impact?
Disparate impact strikes me as an abstract principle that can be applied across the board, without using anecdota to make things come out better for “your side.” (I’m not sure if it fits in your idea of objectivity and process or not.) And deciding whether the law ought to take into account disparate impact or if being facially neutral is enough would be part of an overall judicial philosophy that you could apply to cases regardless of your personal feelings about the sides.
But how does someone arrive at the idea that disparate impact ought to be taken into account? If they arrive at that position because they have personally experienced disparate impact, should they disregard it? Are they not being objective?
Incidentally, a case that shows how grotesquely over-simplifying it is to think in terms of “The Latina will always favor PoC and women!”:
Will they? I don’t buy into the concept, really, that women and POC are some sort of super-people who, by simple virtue of their gender and/or skin color, are given an understanding of life that is entirely unavailable to anyone else, try as they may.
I can certainly see that people have different experiences, sure. But the claim seems to be that Joe Whitedude’s experiences are by default not just different, but are less than are Jill Blackgal’s. The claim as I’ve heard it presented by specific individuals also comes down to “I can understand you perfectly and am entitled to speak from and represent your POV; you cannot understand me and are not entitled to speak from or represent my POV.” in other words, it’s not that people are claiming DIFFERENT knowledge, they’re claiming MORE TOTAL knowledge.
Frankly, that seems like bullshit, at least on any large generalizable scale. There is only so much of the world that people have time to learn about (at least on average); the idea that someone can conveniently pick up all that extra knowledge without a single tradeoff is ridiculous. In scifi, it’s the Mystical Intelligent POC or something like that, where the Planetary Natives are Imbued With Great Knowledge Unattainable to the Rest of Us; right, Mandolin?
And PG:
I think you get this by now, but just in case: That (The Latina will always favor PoC and women!) is not what I’m saying, at all. Are we both clear on that?
I think the most relevant quote from her speech (which you may not have heard) in regards to how Judge Sotomayor thinks about objectivity and her background has got to be the third from the last paragraph:
The italics, of course are mine.
This seems extremely uncontroversial, and it was enough to convince Rod Dreher, who can hardly be termed liberal.
Furthermore, I do think that there’s something to be said here about how the white-straight-cisgendered-religious-male perspective gets framed as the ‘neutral,’ ‘objective’ one. After all, you didn’t hear this kind of squawking about the perspective of Justice Roberts, and there was no talk about how he’d benefited unfairly from his race/sex/etc. When white guys get it, after all, it’s their due. When a Latina woman gets ahead, though, it must be because of racist-affirmative-action-something-or-other. Or, as Matt Yglesias put it:
—Myca
I think you get this by now, but just in case, this (that women and POC are some sort of super-people) is not what I’m saying, at all. Are we both clear on that?
Sailorman,
Which part of “Certainly, white men can make an effort to be aware of disparate impact” sounded to you like “an understanding of life that is entirely unavailable to anyone else, try as they may“? It doesn’t work well for you to complain of having your words misconstrued when you do it to others.
Also, please don’t assume that my every comment in this thread is directed toward you or anything you’ve said. I recommend looking for those comments that begin with “Sailorman” or “SM” or a quote from your comment if there’s confusion about this.
“Objective” is usually code-speak for “from the rich white male perspective” in US culture, especially in politics. I believe there are some fields of study that can be somewhat objective, but I do not think politics is one of them. Nor is the interpretation of the law and constitution something that can always be objective, especially when it comes to the cases that usually reach the Supreme Court.
Also, you aren’t answering my questions, which certainly is your right, but I asked them in a good-faith effort to understand your position, not in some attempt to tar you, despite my snottiness and irritation in the previous comment (which stands, because I feel you are misrepresenting the positions of several people on this thread, your use of blockquotes notwithstanding).
Sailorman,
What is it about Judge Sotomayor’s record that concerns you wrt her ability to be as objective as any other Justice? Even after all these comments, I don’t understand your actual objections to her appointment.