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Knee-Jerk Identity Politics Assumptions:

The Toronto Globe and Mail writes (thanks to OpinionJournal's Best of the Web for the pointer):

Activists who oppose abortion rights are hoping Mr. Bush's choice of two conservative, white, middle-aged male jurists -- John Roberts, the court's new Chief Justice, and Samuel Alito, who replaced the centrist, swing-voter Sandra Day O'Connor -- will herald the end to all legal forms of abortion in the United States.

Roberts' and Alito's being conservative does indeed provide some basis for guessing their position on abortion. But their being male strikes me as not terribly probative; the gender gap on abortion is rather slim (see, e.g., here and here). Likewise, the age gap on abortion seems small or nil.

Finally, that Alito and Roberts are white would suggest that they'd be more supportive of abortion than blacks or Hispanics (see here and here). Of course, these general demographic indicators are useless in predicting the judgments of particular judges. But that's my point: The "white, middle-aged male" qualifiers (and especially the "white, middle-aged" part) are pointless for understanding the issue; the only reason to include them as if they were genuinely relevant seems to be an obsession with identity politics.

JLR (mail):
Also, it is crucial to note that both Chief Justice Roberts and Justice Alito were nominated to replace Sandra Day O'Connor, the female centrist on abortion. (Chief Justice Roberts' original nomination was to replace Justice O'Connor until the Chief Justice vacancy as a result of the sudden and untimely death of the late Chief Justice Rehnquist.) While not relevant (and in fact, misleading) as to the substance of the issue, it is interesting from a purely rhetorical perspective, especially for the purposes of a foreign newspaper.
2.27.2006 8:06pm
JLR (mail):
Addendum: So in a sense, if The Toronto Globe &Mail recalled with more specificity the dynamics of the Bush Supreme Court nominations, it could have scored even more identity politics points (with Chief Justice Roberts and Justice Alito having both been nominated to replace Justice O'Connor -- cf. my above comment).
2.27.2006 8:10pm
canadianllb (mail):
As a Canadian, all I can say is "there the Globe goes again." It's strange that most Canadians are so eager to distinguish themselves from Americans and yet are fixated on America. At any sign that Americans are imposing their views on this country, our elites vehemently object. Yet, the Globe on a weekly basis feels compelled to stick itself into American domestic affairs, always with a tint of moral superiority. It's amazing really... every other Canadian thinks he's an expert on American affairs.
2.27.2006 8:29pm
Eric Muller (www):
Perhaps the notion is that, on average, women are likelier to appreciate what's at stake for a woman contemplating an abortion more intuitively than men are.
2.27.2006 8:50pm
dunno:

middle-aged . . . jurists . . . will herald the end


the age gap on abortion seems small or nil.

Professor Volokh: there is more to "herald[ing] the end" of Roe than voting to overturn it. If you grant the author's other points (and you don't have to, but if you do), then age is indeed an important factor in one's ability to "herald."

Consider a comparison between, say, William Rehnquist aand Wiiliam O. Douglas, who entered the Supreme Court abortion line of decisions at exactly the same time. Who had more effect on the debate, over the long term? Who shaped it more? (It's hard to have a truly effective comparison, with only two dissenters in 74, one of whom later rose to the prominence of Chief Justice, but this works closely enough).

Surely if a President wants to affect any debate on the Supreme Court, he'd be wiser to choose a young nominee who can weigh in on more cases than one only like to see a few. Unless of course he's hoping the amazing power of the new Justice's faculties shall shine so bright a light on the Court's jusiprudence as to waken his slumbering brethren to the truth and lay to rest any doubts as to the veracity of his ruling for all the further history of the Republic.

I'm betting a sagacious President would hedge his bets with a young nominee who does not believe in "growing in office" and could, at the very least, be a constant voice for the position he took, and, if surrounded by enough like-minded people, actually turn the course of SCOTUS jurisprudence to fit his approach.

Sound like it even could be either the middle-aged Roberts or Alito?
2.27.2006 8:55pm
Mom of Two (mail):
Interestingly, I am a (gasp) middle aged woman who lived through both pre- and post-Roe. While I abhor abortion, I believe that a woman's choice must be just that...her choice. I'm not sure that conservative, white, male jurists are going to take on the Roe decision at this point in time. I don't think the votes are in place for an overturn.
2.27.2006 10:15pm
Justin Kee (mail):
2.27.2006 10:18pm
therut:
Oh those evil white males. Arn't white males more strongly supportive of abortin rights than say hispanic or black males. Espically the younger 18 to 35 y/o evil white male.
2.27.2006 10:28pm
Six of One, Half Dozen of the Other (mail):
White, middle-aged, Catholic, males

Shhh, Eugene, shhh... No more talking now. Wasted words.
Only time will tell us, now, how independent these two white middle-aged Catholic men are: how driven by reason and knowledge, or how wedded to their traditions. If they prove independent thoughtful thinkers, you win.

If they prove to represent white middle-aged Catholic male interests, instead of practicing as judges in this great country of ours that includes black and brown people, women, atheists, young and old people, you lose. (as your blog pushed their stellar credentials and urged us to trust on that basis)

They'll always be wondering if perhaps half-a-brain Harriet would have provided better for them then these two, hand selected by the conservative interests (perhaps??) to represent their own white, middle-aged (some Catholic, all traditional conservative) male interests. But right now, that would be cynical. In a few years, after we can see their work up close and taste the consequences, it might not be.
2.27.2006 10:56pm
Dominican sister (mail):
"But their being male strikes me as not terribly probative; the gender gap on abortion is rather slim "

Yadda yadda. Not sure how many practicing Catholic men you all hang out with here at the Conspiracy (and I don't count Bainbridge as he's a newcomer), but there is no gender gap on abortion for the practicing Catholic male crowd.

You're missing something in your identity analysis here, namely the Catholic part and it's deep tradition of pro-male bias and Jesuit sophistry to explain rationally it's biases.
2.27.2006 11:00pm
Eugene Volokh (www):
Eric: That must be the notion, but the polling data generally doesn't much support it.

Dunno: Nice bit of defense lawyer work for the newspaper, but I don't think it will fly -- in context, it seems clear that "middle-aged," like "conservative," "white," and "male" seems to be an attempt to predict votes from identity group membership, not an attempt to measure the likely tenure in office.

Dominican Sister: If the newspaper had focused on Alito's and Roberts' being Catholic, I wouldn't have complained (just as I don't about their focusing on Alito's and Roberts' conservatism). Catholicism isn't a perfect predictor of views on the constitutional issue -- Justices Brennan and Kennedy are both Catholic -- but it surely is relevant. But the newspaper neither focused on Catholicism nor Jesuist sophistry yada yada.

Six of One: You keep talking about "white middle-aged Catholic male interests," but don't confront the actual data I gave, which is that as to abortion -- the topic of this post -- "middle-aged" is largely unrelated to one's views, "male" is only very slightly correlated to opposition to abortion, and "white" is correlated to support for abortion. I'm trying to shift the discussion from knee-jerk identity politics assumptions (see the title of the post) to data. Any chance you might shift with me?
2.27.2006 11:35pm
Lev:
Maybe it's just me, but I would have thought that white men, especially middle-aged white men likely to be having midlife crises, would be enthusiastic about the feminist position of sex without consequences, I mean, freely available and societally approved abortion. It makes cleaning up mistakes so convenient.
2.28.2006 12:12am
logicnazi (mail) (www):
Muller said:

Perhaps the notion is that, on average, women are likelier to appreciate what's at stake for a woman contemplating an abortion more intuitively than men are.


This is preciscely the problem with the debate over Roe v. Wade in this country. UNDERSTANDING WHAT IS AT STAKE FOR A WOMAN SHOULDN'T BE RELEVANT TO DECIDING ROE V. WADE Having emotional sympathy for the people affected by a law gives one no better understanding of the constitutional principles involved. There simply isn't a principle, no matter how broadly you read the constitution, that says no law shall be passed which has really bad effects for some people's personal lives. If this principle was valid we should appoint drug users to the supreme court as they have a better idea what is at stake for the pot smoker when deciding if drug laws violate the implied right to privacy.

Also it isn't that male justices don't understand propositionally what effect this has, they just don't have the same emotional pull. Yet this argues strongly that questions of abortion's constitutionality would be better decided by all male justices. In general we feel that justices should recuse themselves in cases where they are likely to have strong emotional pull, e.g., family members, an ex-lovers new lover on trial. Why doesn't this same argument apply to abortion. If women really do have a stronger emotional connection to the case doesn't this suggest that it would be better (even if it doesn't rise to the level of recusal) for men to make the deciscion?
2.28.2006 1:50am
James968 (mail):
Heard this on the radio

I few weeks ago when they proposed having a monument for 'Pappi' Boyington at U of Washington, one of the members of the Student Senate got up and proclaimed:
We don't need anymore monuments to 'Rich White Men'

To which someone pointed out that Boyingtonwasn't rich

She revised her statement:
We don't need any more monument to 'White Heterosexual Men'

To which someone pointed out Boyington, wasn't white he was a Native American. (I forget which tribe).
2.28.2006 8:20am
Six of One (mail):
"... but don't confront the actual data I gave, which is that as to abortion -- the topic of this post -- "middle-aged" is largely unrelated to one's views, "male" is only very slightly correlated to opposition to abortion, and "white" is correlated to support for abortion."

Eugene,
Would have replied last night, but I got temporarily banned for expressing contrary views on Kopel's International Law/Israel post. Thanks for letting me back in; good luck to Kopel and others searching for the "right" answer in that survival dilemma.

Here, I object to your firm reliance on your "data". Never put much stock in poll results myself, but I've seem you do. I don't trust polls enough to base big generalities -- too many other factors to take into account.

Justices Alito and Roberts are a different kind of Catholic than Justice Kennedy or the late Justice Brennan. Maybe you are not "Catholic savvy" enough to see this, but it's like gaydar to those raised in the flock. These two are "conservative" Catholics, which helped them get on the Court. They aren't going down the paths of Kennedy or Brennan.

I doubt either man will stray from the teachings, esp. not to impregnate someone on the side and wish for abortion to clean it up, as Lev suggested of other middle aged white men. Not these two Catholics. People just don't change like that.

Just because one Catholic polls this way, (or one white, or one middle aged man, etc) doesn't make it true for the group as a whole. That is why gay Catholics (yes, we are here, Bainbridge-type deniers aside; think of us when making secular decisions -- we are invisible to our families and churches under their rules, so we turn to the bigger law for "justice" = an equal enforcement of our rights, based on who we are as Americans, not what we do differently. Nope, not there either. Only for richer homosexuals who can afford lawyers to draw up private agreements, wills, visitations, child-rearing etc. That only works for some; too bad ) can't be lumped into the Catholic category on some polls, nor can middle aged white men. You have to look closer before making such generalities.

You are a smart man, but let me top you here. I am very confident that my knowledge on Catholic matters is stronger than yours, and I'll come back and visit in a few years, after a few opinions are issued, to see if the new justices hue closer to my predictions or that of your poll data. Maybe I'll even be able to forgive you for pushing so strongly Harriet Miers out of the way (was holding out hope for her on some issues as a self-made woman, vs. conservatively raised, Catholic, middle aged white men -- no doubt very smart men, just naturally representing the world they know in their opinions which does not represent the capital A America we live in today. I know, I know, the Legislature is supposed to do the representing, but with them punting so often to the legal arena, those Justices personal views and upbringings are going to affect us all.)
2.28.2006 8:27am
Peter K. (mail):
There is another flaw to the Globe and Mail's comment: "White male" Alito was neither Bush's first or second pick to succeed Sandra Day O'Connor. He was the third choice. Have we forgotten the Protestant female Harriet Miers already?

Also: How many Supreme Court nominees of the past sixty years have not been "middle aged"?
2.28.2006 9:52am
submandave (mail) (www):
I am surprised that noone has yet pointed out the glaring problem with the article's logic, one that pervades most pro-choice pro-RvW hystarics: the assumption that an over-turn of RvW is the same as a federal ban on abortion. It is completely foreign to their thought process to even consider the very real likelihood that abortion laws in many States will remain unchanged regardless of what the Supreme Court may or may not decide.

I believe RvW is a bad decision on a number of grounds. Not only do I think it is baseless from a Constitutional perspective, but it has poisoned the judicial landscape. Because of RvW judicial appointments have become even more blatantly politicized. Confirmations have been reduced to simple yes/no questionaires. Further, the grand over-reach of the federal embodied by RvW has, over the past 30+ years become an almost accepted part of the judicial. It is just this expectation of grand sweeping federal action that allows some to entertain the otherwise blatantly ridiculous idea that the day after RvW falls Republican jack-boots will sweep the abortion clinics and imprison all they find. RvW must fall, just as a body can never heal so long as the cancer is allowed to remain.
2.28.2006 10:41am
eddie (mail):
I would like to have seen a correlation using all of the adjectives simultaneously. It's easy for statistical analyis to stop short of comparing apples with apples. So yes, perhaps there nothing statistically significant comparing men to woman, comparing white to non-white and comparing middle-aged to middle-aged, but how about a statistically relevant discussion of white, middle-aged men versus the rest of the population.

Your indignation is a bit premature as regards the proof from behind which you scowl.
2.28.2006 10:42am
WB:
One person's "obsession" is another's "affinity"
2.28.2006 11:37am
Calvin Massey:
I've spent a lot of time in Canada, reading the Globe and Mail. It is relentlessly PC, with no self-consciousness of its orthodox, reflexive approach to just about everything. As a result, it's terminally boring. My Canadian friends refer to it as the "Probe and Flail."
2.28.2006 12:41pm
Jess Askin (mail):
How about that thank you note from Justice Alito to James Dobson.

Veddy scary!

Say, how come you don't have any women conspirators on here for balance. Also, after reading DB's recent post: any chance you might get some non-white contributors also? (apologies if there are any already and I have missed their contributions -- Juan??).
3.2.2006 10:12pm