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Sotomayor's Multiple "Wise Woman" Speeches:

This week it was reported that Judge Sotomayor has made several speeches in which she suggested that a "wise Latina woman," or simply a "wise woman," would make different or better decisions as a judge than a "wise man." Does this matter? According to some, this is further evidence that her statement in a 2001 speech that she hoped a "wise Latina" judge would make "better" decisions than a white male judge was not an isolated misstatement or "unscripted" moment, as claimed by the White House.

Sotomayor's supporters claim, however, that these prior speeches show that her 2001 speech was no big deal, as Republicans did not make these remarks an issue when she was nominated to the U.S. Court of Appeals for the Second Circuit. I am not sure I follow the logic of this argument, however, as it seems quite apparent that most Senators apply greater scrutiny to Supreme Court nominations than to those for lower courts. Most devote more time analyzing Supreme Court picks, and apply a higher standard for confirmation. So, for instance, there were Democrats who voted to confirm John Roberts to the D.C. Circuit who opposed his elevation to the Supreme Court, including Joe Biden and Dianne Feinstein. I also suspect many Democrats (and law professors, for that matter) who did not oppose confirming Michael McConnell to the U.S. Court of Appeals for the Tenth Circuit would have opposed his elevation to the Supreme Court. In the latter case, writings and speeches that were not an issue when McConnell was nominated to be an appellate judge would have been an issue in the context of a Supreme Court nomination. This does not mean that these speeches are sufficient grounds for opposing Sotomayor's confirmation, just that I don't see why Senators who failed to raise them before should be estopped from raising it now.

UPDATE: Commenter Barbra writes: "Your puzzlemant [sic] over the logic of the argument is a puzzle. If these comments were not enough to brand her a sexist-racist in 1998, they are not enough to brand her a sexist-racist today." If I thought Judge Sotomayor's comments indicated she was a "sexist-racist," then that would have been as true in 1998 as it is today. However, I do not believe Judge Sotomayor's speech indicates that she is either a sexist or a racist (and I find the repeated accusation, made in comment threads and elsewhere, quite tiresome). As I noted in my first post about the speech, my concern is what her remarks indicate about her conception of the role of the judge, and this is precisely the sort of concern that could well be greater for a potential Supreme Court justice than an appellate judge.

John (mail):
Oh for heaven's sake. Obama was going to nominate a wild-ass liberal and everybody knew it. She'll be replacing another one, and there is no stopping it. Can we move on?
6.6.2009 11:51am
ruuffles (mail) (www):

Obama was going to nominate a wild-ass liberal and everybody knew it.

Oh you mean the wild-ass liberal gun-grabber, that three conservatives (including Posner and Easterbrook!) explicitly agreed with in declining to incorporate the 2nd amendment? Even in Ricci she was in the mainstream of the 2nd circuit liberals.
6.6.2009 11:53am
DangerMouse:
She hates white men. What's there to debate?
6.6.2009 11:57am
Redman:

Its ok to be a sexist and a racist so long as you can prove you've always been that way.
6.6.2009 12:09pm
Rajesh Dhawan (mail) (www):

Obama was going to nominate a wild-ass liberal and everybody knew it.

We also know his agenda of diltuting the constitution and make America a socialist country. Should we just allow him to go ahead and do his thing without protest?

Next few years are going to be critical and giving up without a fight is not on my agenda. I hope to will become an American citizen someday and I'll do whatever I can to keep him from from fulfilling his agenda.
6.6.2009 12:14pm
ThreeOneFive (mail):
Well, when you become an American maybe you can vote against him. Until then, how about you make substantive arguments in support of your position rather than just throwing out op-ed drivel?
6.6.2009 12:23pm
ShelbyC:
ThreeOneFive:

Well, when you become an American maybe you can vote against him. Until then, how about you make substantive arguments in support of your position rather than just throwing out op-ed drivel?


Hey, you too, buddy.
6.6.2009 12:35pm
Upend, Coming:
Wow. Vitriol.

I agree with the premise of the post that the scrutiny will be higher for a SCOTUS nominee.

But, I disagree in part with the estopped language for two reasons.

First, if you are using this language to criticize a jurisprudential character flaw -- the time to criticize it was before because the flaw would have been for "good behavior" on the second circuit too. The criticism that she is racially biased would have resulted in final case decisions on the second circuit for all but the 100 cases that come up on cert. On the other hand, I haven't really counted them up, but many of the constitutional cert cases come from the 9th circuit and not the 2nd circuit, because California's due process clause is defined as basically the same as the US constitution. So while she will have more impact on interpretation of the constitution, it can't be said that she didn't have any.

Second, if the language is to criticize her temperament or faculties on the basis that she has repeatedly made these comments, then the complaint is more valid, but still unseasonable. The judicial branch is widely regarded as the most austere branch of government. The language stands out compared to the cold feel of a court's marble wall. You might ask if a judge should have a higher bar for discretion. OTOH, it might be better to free a judge to speak frankly, rather than encourage intellectual dishonesty or expect them to be sly in their conversations off the bench.


But to you folks who have posted so far:

I saw a funny assertion the other day.

"To the religious nuts. Why don't you stop and think that maybe g-d wanted Obama to win?"

Meaning: if you're a fatalist or put your trust in a higher power, then you really should calm down and lower your blood pressure.

Otherwise, you resemble this political cartoon.

The point is: losing elections have consequences. The least of all is the realization that the constitution protects us from the tyranny of the majority, even if you didn't feel that way when you were in the majority.

Unfortunately, the same folks who decry putting someone on the Supreme Court that disagrees with their view are the same people that raved about putting folks on the court that will shape the constitution to their view when replacing others.

Like the Thurgood Marshall to Clarence Thomas shift. Helllooooooooooooo! After nearly 20 years, it is fair to ask: if you think that was OK, then a Souter to Sotomayor is nothing.
6.6.2009 12:52pm
24AheadDotCom (mail) (www):
Any public BHO opponent who isn't working against her nomination should be held accountable for what she does. If she makes it through, she's going to be a disaster, rewarding extreme ethno-centrism and membership in far-left groups that support illegal activity.
6.6.2009 1:12pm
Borris (mail):

Its ok to be a sexist and a racist so long as you can prove you've always been that way.

No No No
It is OK to be a sexist and racist if you are sexist and racist towards the right group, white males. Preferably someday they will all be dead white males.

Is your hate politically correct hate?
Do you believe that racism is wrong unless you hate white people?
Do you believe that sexism is wrong unless you hate men?
Do you believe that sexual discrimination is wrong unless you hate heterosexuals?
Do you believe that religious intolerance is wrong unless you hate Christians?
Do you believe that freedom of speech involves censoring offensive non-Politically Correct speech?
Do you believe that DoubleThink is hard and that DoubleThink is easy?
Do you keep such an open mind that your brain fell out or so open that any piece of garbage can blow in?
Are you a hypocrite and a bigot? Do your friends praise you for it and call you morally superior? Do you think that your bigotry makes you a better person than others?

If your hate is politically correct hate then the Democratic Party is the party for you.
6.6.2009 1:14pm
Barbra:
Your puzzlemant over the logic of the argument is a puzzle. If these comments were not enough to brand her a sexist-racist in 1998, they are not enough to brand her a sexist-racist today.

What part of that argument don't you follow?
6.6.2009 1:16pm
Upend, Coming:
I am dismayed at the level to which discourse has sunk in these comment threads. Many of you should be ashamed.
6.6.2009 1:17pm
M N Ralph:
As a partisan, liberal Democrat, I largely agree with Professor Adler on this one. First, he is undisputably correct that there is much greater scrutiny of a SC nominee's record than there is of a CA nominee's record. Second, just because you're OK with someone as a CA judge does not mean you also OK wit him or her as a SC justice. Finally, I'm not aware of any evidence that Senators were even aware of her prior speeches when she was confirmed to the Court of Appeals. Unless you could show they knew about it, then how do you claim they didn't think it was a big deal? At most, it shows poor due diligence in confirming her before, which should hardly be a bar to opposing her now. This line of argument is just Democratic spin.
6.6.2009 1:21pm
Tony Tutins (mail):

If these comments were not enough to brand her a sexist-racist in 1998, they are not enough to brand her a sexist-racist today

In 1998, the memory of nominating the "Long Dong Silver" fan was too fresh in people's minds for them to wonder about a little ethnic and gender pride.

As I interpret her "wise Latina" comments, she expects more from Hispanic women than from white men, putting her in the reverse-reverse-racism camp.
6.6.2009 1:28pm
Barbra:
Mr. Ralph, the links make clear that these speeches were appended to her Senate Questionaire in 1998, just as they are today. That's the record on which they confirmed her. The charge is she is a sexist/racist and therefore should not be confirmed. It is relevant to point out that no one raised that previuosly, based on these same comments, so the charge is not warranted, just as it was not warranted in 1998.
6.6.2009 1:30pm
sbron:
Since Latinas, and I presume Latinos are wiser than whites, we should abolish affirmative action for the former group as they clearly do not need it.
6.6.2009 1:43pm
A. Non E. Mouse (mail):
I am going to start referring to myself as The Wise Caucasiana.
6.6.2009 2:02pm
Sarcastro (www):
Clearly, Sotomayor hates blacks and males, and wants to give Obama dictatorial powers. If Republicans don't vote against her, the end of the Republic is on their head.

I also wish the self-hating white males in Congress would stop passing anti-discrimination laws, since all they do is oppress the majority!
6.6.2009 2:07pm
Loren Heal (mail) (www):
While the legal term may be 'estoppel', it's really another example of ad hominem tu quoque. "You said nothing about Bush's deficits, so you can't oppose Obama now."

Saying that Judge Sotomayor's remarks didn't hurt her before, and so can't be used now, is like saying that if you don't kill the bear before he gets to the camper, you can't shoot him once he's inside. Too late!

(Not to compare wise Latinas with ravenous grizzlies. It's an analogy.)
6.6.2009 2:11pm
ruuffles (mail) (www):

While the legal term may be 'estoppel', it's really another example of ad hominem tu quoque. "You said nothing about Bush's deficits, so you can't oppose Obama now."

Actually it's an example of hypocrisy.
6.6.2009 2:15pm
ruuffles (mail) (www):

Hey, you too, buddy.

I'm not your buddy, friend.
6.6.2009 2:15pm
ruuffles (mail) (www):

Since Latinas, and I presume Latinos are wiser than whites, we should abolish affirmative action for the former group as they clearly do not need it.

Did you read the quote? No, because she used the singular: "a wise Latino woman."
6.6.2009 2:16pm
ruuffles (mail) (www):

I am going to start referring to myself as The Wise Caucasiana.

Rich Lowry, is that you?
6.6.2009 2:17pm
Barbra:
"Saying that Judge Sotomayor's remarks didn't hurt her before, and so can't be used now, is like saying that if you don't kill the bear before he gets to the camper, you can't shoot him once he's inside. Too late!"

No. Because they were not examples of racism and sexism before they are not now. Precedent, we call it in the law, not estoppel.
6.6.2009 2:23pm
Just an Observer:
On balance, the public revelation of the other speeches is a net negative for Sotomayor. It will make her hearings more uncomfortable, and she will have to rely on the nuanced context according to it merits (or lack thereof). That nuance does not play well with many in the center, but the nominee still enjoys considerable political support.

And opponents will have an easier time scoring political points by portraying Sotomayor's candidacy as a test of affirmative action as an issue.

In the end, there will be a plausible political reason to vote against her for those Republicans who choose to do so. I still doubt that a filibuster is likely or viable.

FWIW, I do not place much credence in the argument that Republicans forfeited their only chance to object to Sotomayor's rhetoric during her COA nomination.
6.6.2009 2:26pm
ruuffles (mail) (www):

FWIW, I do not place much credence in the argument that Republicans forfeited their only chance to object to Sotomayor's rhetoric during her COA nomination.

Oh they can object all they want, they'll just look silly doing it.
6.6.2009 2:30pm
Allan Walstad (mail):
If you flip Sotomayor's comments--imagine a white male expressing the hope that a person like him would make better decisions than a Latina--you get something that would bring down a wild frenzy of shrieking vitriol. We need to get past "my gender/ethnicity is or ought to be better than yours"--all of us. Nevertheless, I think her remarks fall more in the category of running off at the mouth than anything terribly sinister, and Obama is unlikely to offer up someone better. Concerns should be aired, and perhaps Sotomayor deserves a lot of no votes, but I don't see filibustering her nomination.
6.6.2009 2:39pm
Barbra:
What discomfort:

Q. Are you a racist?

A. No.

Q. Are you a sexist?

A. No.

Q. So what do you believe?

A. I would hope, that a judiciary drawn from all Americans, would be better than one that excludes many, even most Americans.
6.6.2009 2:41pm
Thales (mail) (www):
Does anyone even read or think anymore . . . the operative and interesting phrase in the speeches is "with the richness of her experiences." Unless you have evidence of why a racist construction is appropriate (the fact that you don't want her confirmed doesn't count), the best way to read this is that she is suggesting it's possible (not a universal truth, but a possibility) that a member of an ethnic minority with many life experiences that privileged white males *tend* not to have, in view of the fact that they are privileged and sheltered, will be wiser. The idea being that experience and exposure to the world, especially the world outside of the privileged legal elite, tends to inform and enrich one's wisdom, including judicial wisdom. I'm not sure why this is even a controversial suggestion; our experiences *do* color our worldview and make us more or less sensitive to what facts our important in a given context, including the legal system. If she had wanted to say that one race is *intrinsically* better or wiser than another, she could have said it. But she didn't.
6.6.2009 3:00pm
Thales (mail) (www):
make that what "facts *are* important".
6.6.2009 3:01pm
Tony Tutins (mail):

If you flip Sotomayor's comments--imagine a white male expressing the hope that a person like him would make better decisions than a Latina

If you flip Sotomayor's comments, you have to imagine not only a white male making that comment, but you also have to imagine a Supreme Court historically comprising only Latinas, except for two Latin males recently appointed.
6.6.2009 3:02pm
Tony Tutins (mail):
Give thales full marks for reading comprehension.
6.6.2009 3:03pm
M N Ralph:

Mr. Ralph, the links make clear that these speeches were appended to her Senate Questionaire in 1998, just as they are today. That's the record on which they confirmed her. The charge is she is a sexist/racist and therefore should not be confirmed. It is relevant to point out that no one raised that previuosly, based on these same comments, so the charge is not warranted, just as it was not warranted in 1998.


Thanks for carifying the point about the speeches being appended to her earlierr questionaire for me. I still don't buy the argument that this somehow logically precludes Senators from objecting to her based on her speeches. I think you make a bit of a logical leap when you say that failure to object to her comments then means the comments are necessarily unobjectionable. If I fail to object to opposing counsel asking a leading question during trial, am I precluded from objecting when she does it later in the trial? Maybe the earlier question was relatively unimportant to me and I didn't want to appear obstructionist to the jury, but the later question is more important and I'm willing to risk looking bad in front of the jury to keep the testimony out.

I don't mind Democrats making the argument. I just dont find it persuasive.
6.6.2009 3:08pm
Allan Walstad (mail):

If you flip Sotomayor's comments, you have to imagine not only a white male making that comment, but you also have to imagine a Supreme Court historically comprising only Latinas, except for two Latin males recently appointed.

No, actually, I don't have to so imagine.

If you have a argument, let's hear it, ok?
6.6.2009 3:12pm
ShelbyC:

...she is suggesting it's possible (not a universal truth, but a possibility) that a member of an ethnic minority with many life experiences that privileged white males *tend* not to have, in view of the fact that they are privileged and sheltered, will be wiser. The idea being that experience and exposure to the world, especially the world outside of the privileged legal elite, tends to inform and enrich one's wisdom, including judicial wisdom.


Yes. That's exactly what she is suggesting. However, many of us have learned that the formula: "Because my race is [insert generalization here] and this other race is [insert other generalization here], my race is better at X" is a nonstarter. Because people can't be boiled down to generalizations about their race or ethnicity. Folks who haven't learned that probably shouldn't be on the supreme court.
6.6.2009 3:13pm
Soronel Haetir (mail):

I will also point out that the Senate that confirmed her for her previous seats is not the same Senate that is now considering her qualifications for a SCOTUS appointment. I see no requirement that current legislators follow their predicessor's judgement on such issues.

Almost by definition a new legislative body is allowed to come to a different conclusion from previous legislative bodies, even from the same evidence.
6.6.2009 3:28pm
Barbra:
"I think you make a bit of a logical leap when you say that failure to object to her comments then means the comments are necessarily unobjectionable."

I'm not making that leap.

Rather, since the objection is that a sitting judge is a racist and a sexist, one would expect that such a grave objection, if in the least valid, would have been raised.
6.6.2009 3:37pm
anony:

(link)ruuffles (mail) (www):

Hey, you too, buddy.


I'm not your buddy, friend.


I'm not your friend, guy.
6.6.2009 3:37pm
Leo Marvin (mail):
Allan Walstad:

If you flip Sotomayor's comments--imagine a white male expressing the hope that a person like him would make better decisions than a Latina--you get something that would bring down a wild frenzy of shrieking vitriol.

You mean as opposed to the thoughtful commentary on this thread?
6.6.2009 4:02pm
Allan Walstad (mail):

You mean as opposed to the thoughtful commentary on this thread?

Not in all cases, no. :-)
6.6.2009 4:05pm
Jonathan H. Adler (mail) (www):
Barbra --

I don't believe that Sotomayor's remark indicates that she is sexist or racist, and I don't consider that to be a reasonable objection to her comments. Rather, as I indicated in my first post on her "wise Latina" remarks, I think her speech could raise some concerns about he she sees the law and a proper role of a judge, and these are the sorts of concerns that could be greater for a potential Supreme Court justice than for an appellate judge.

JHA
6.6.2009 4:10pm
M N Ralph:

Rather, since the objection is that a sitting judge is a racist and a sexist, one would expect that such a grave objection, if in the least valid, would have been raised.


I'm not sure most of the Sotomayor critics would go as far as saying her comments mean she's a racist and a sexist. Only Limbaugh and Gingrich have said that AFAIK (and Gingrich has walked it back). But, yeah, if you take that position now and you were aware of what she said then and said nothing about it, then that's probably good grounds to doubt the sincerity of your objection now.
6.6.2009 4:23pm
EricH (mail):
my concern is what her remarks indicate about her conception of the role of the judge, and this is precisely the sort of concern that could well be greater for a potential Supreme Court justice than an appellate judge.

That you have to express this obvious point again and again and again is mystifing.
6.6.2009 4:46pm
Barbra:
Thank you for pointing me to your prior objection, Professor. As you state in your earlier post, your thougts were not based on the text of the speech but on a press account. Your concern was that Judge Sotomayor, perhaps, did not aspire to be objective. As you are aware now from reading her entire speech, she says there that she, personally, and all judges, should aspire to objectivity.
6.6.2009 4:51pm
Guest12345:

The point is: losing elections have consequences.


True enough. If certain democrats hadn't lost elections none of this debate even exist. Unfortunately for Obama, those elections were lost and now he has to accept the consequences.
6.6.2009 4:58pm
Allan L. (mail):
I don't understand. Isn't her Circuit Court confirmation transferable as such to the Supreme Court?
6.6.2009 4:59pm
RPT (mail):
"EH:

That you have to express this obvious point again and again and again is mystifing."

It is not at all mystifying. The explanation is that the SS critics have seized upon these comments because her actual judicial record contains no evidence of an "improper conception of her role as a judge," much Dangermouse's "hatred of white men", or Limbaugh/Gingrich's "racism", or any other nonpartisan basis for opposing her. Wendy Long, Curt Levey, Manuel Miranda, and their various cohorts are paid very well to oppose her or any other Obama nominee, and will seize upon any basis to do so, whether it requires them to manufacture "facts" or simply distort them.
6.6.2009 4:59pm
Allan L. (mail):
I mean, of course, mutatis mutandis.
6.6.2009 4:59pm
RPT (mail):
Fortunately, we will not have to wait to hear what ex-senator Coleman might have to add to the debate. We can hope that Prof. Kerr is responsible for Sen Cornyn's abandonment of that lame legal battle. I expect Sen Franken will vote for SS.
6.6.2009 5:02pm
ShelbyC:

It is not at all mystifying. The explanation is that the SS critics have seized upon these comments because her actual judicial record contains no evidence of an "improper conception of her role as a judge," much Dangermouse's "hatred of white men", or Limbaugh/Gingrich's "racism", or any other nonpartisan basis for opposing her. Wendy Long, Curt Levey, Manuel Miranda, and their various cohorts are paid very well to oppose her or any other Obama nominee, and will seize upon any basis to do so, whether it requires them to manufacture "facts" or simply distort them.


I disagree. Many folks, myself included, feel that a Latina woman saying what she said is just as bad as a white man making similar comments. Other's don't. You don't have to impune people's motives.
6.6.2009 5:15pm
troll_dc2 (mail):
A column by Adam Benforado in The Philadelphia Inquirer offers a useful perspective:


Some have suggested that Sotomayor brought this on herself by saying that her background and experiences as a Hispanic woman give her a unique perspective when judging cases.

Yet the isolated snippets of Sotomayor's remarks that have become so contentious are hard to distinguish from some of the comments made by recent Republican appointees to the Supreme Court. Justice Samuel Alito, for example, explained during his confirmation hearings that when he gets a discrimination case, he takes into account the experiences of people in his "own family who suffered discrimination because of their ethnic background or because of religion or because of gender."

The general thrust of these comments - that personal perspective affects the way judges construe facts - is well-supported in the academic literature. But that has not stopped critics from assailing Sotomayor as an "activist" judge and casting Obama's call for an empathetic appointee as code for one guided by feelings rather than the law. As freelance Inquirer columnist John Yoo put it in a recent blog post that echoed comments by Sen. Orrin Hatch, Sen. Mitch McConnell, and others, the danger is that Sotomayor will be "voting her emotions."

Whether deliberate or not, such statements play on stereotypes of women as ruled by hormones, devoid of reason, and lacking the discipline to put aside their feelings and make hard decisions. The same assertions have been raised for centuries to prevent women from taking positions of power outside the home.




http://www.philly.com/inquirer/opinion/46796457.html

How many people complained about Alito's remark? And in his Title VII decisions, is there any evidence that he has taken his family's experiences into account?

I cannot help but think that the people who are complaining about what Sotormayor said are doing so because they cannot come up with anything better.
6.6.2009 5:22pm
Moneyrunner43 (www):
The nomination of Judge Sotomayor is yet another opportunity to have that discussion on race that the mainstream media editorial boards are constantly saying we should be having. Yet when the discussion begins, we have the demand by the “progressive” community that we shut up. That words like racist should not be thrown around (unless they are used … entirely justifiably … by a minority). They demand that remarks that can be interpreted as racists or sexist cannot be interpret that way … and that people who do so are marginalized … like Rush Limbaugh.

Rush Limbaugh is not the only one calling Sotomayor a racist. No less a wise observer of American culture as Thomas Sowell of the Hoover Institution called her remarks racist.

Then there’s the bizarre demand that if we did not object to these remarks in 1998 or 2001 we are precluded from objecting to them today.

Well Barb, I was unaware that Sotomayor existed before her SC nomination was announced. And for anyone to state that - in the 21st Century – judges who use multiple occasions to trumpet their own racial, ethnic or gender superiority are fit for the Supreme court does not pass the laugh test..

As to the argument that her “experiences” make her a better judge, let me allow Thomas Sowell – a black man – to respond:


What does it say about a nominee to the Supreme Court that the most that her defenders can say in her defense is that her critics used words that her defenders don't like?
What does it say about her qualifications to be on the Supreme Court when her supporters' biggest talking points are that she had to struggle to rise in the world?

Bonnie and Clyde had to struggle. Al Capone had to struggle. The only President of the United States who was forced to resign for his misdeeds-- Richard Nixon-- had to struggle. For that matter, Adolf Hitler had to struggle! There is no evidence that struggle automatically makes you a better person.

Sometimes, instead of making you appreciative of a society in which someone born at the bottom can rise to the top, it leaves you embittered that you had to spend years struggling, and resentful of those who were born into circumstances where the easy way to the top was open to them.

Much in the past of Sonia Sotomayor, and of the president who nominated her, suggests such resentments. Both have a history of connections with people who promoted resentments against American society. La Raza ("the race") was Judge Sotomayor's Jeremiah Wright. If context is important, then look at that context.

Sonia Sotomayor has, in both her words and in her decision as a judge to dismiss out of hand the appeal of white firefighters who had been discriminated against, betrayed a racism that is no less racism because it is directed against different people than the old racism of the past.



Regards,

Moneyrunner
6.6.2009 5:31pm
Tony Tutins (mail):

If you have a argument, let's hear it, ok?

In the absence of any substantive argument of your own, for your substitution to be valid, one must assume you are arguing implicitly that the experiences of a "wise Latina" who had made it to the Court of Appeals was indistinguishable from any white male's.

If that curious assertion were true, if there were nothing special about a Hispanic female being nominated to the Supreme Court, if it was just as easy in the aggregate for Hispanic females to make it as white males, there would be proportionately as many Hispanic females as white males on the Court.

But that is manifestly untrue, as the past two centuries of the white male dominated Supreme Court shows.

So your argument fails.

For your substitution argument to describe Sotomayor's actual situation, the white male would have to have had an outsider's experience, the same as the Hispanic female has in reality. The odds would have had to have been stacked against him, the same as for the Hispanic female in reality.

And for that to be true, the Supreme Court would have had to have been dominated historically by Hispanic females.

And that's why the simple substitution fails.
6.6.2009 5:31pm
Moneyrunner43 (www):
troll_dc2,

What an interesting comment. Perhaps you can find the part of his testimony where he proclaims that his rich experiences make him a better judge than a black man, or woman, or Latina. And right afterwards he sailed through with Ted Kennedy's blessing. That would really be a gotcha.
6.6.2009 5:37pm
Tony Tutins (mail):

Sonia Sotomayor has, ... in her decision as a judge to dismiss out of hand the appeal of white firefighters who had been discriminated against, betrayed a racism that is no less racism because it is directed against different people than the old racism of the past.

In Ricci, Sonia Sotomayor agreed with the reasoning of a white woman, Judge Janet Bond Arterton. If anything, this shows she's too deferential to white women.
6.6.2009 5:39pm
troll_dc2 (mail):
Moneyrunner, why did no one complain about Alito? Why is the difference in treatment between him and Sotomayor not an example of hypocrisy? And, most importantly, is there ANY evidence that Alito has taken his family's experiences into account in any of his opinions on the Supreme Court?
6.6.2009 5:42pm
troll_dc2 (mail):

What an interesting comment. Perhaps you can find the part of his testimony where he proclaims that his rich experiences make him a better judge than a black man, or woman, or Latina. And right afterwards he sailed through with Ted Kennedy's blessing. That would really be a gotcha.



Your reply came while I was posting my previous entry. I want to know what the personal experiences of his family have to do with being a justice of the Supreme Court.

It's really all about politics, isn't it? You wanted Alito; you don't want Sotomayor. So you pump up her remark and ignore his.
6.6.2009 5:45pm
EricH (mail):
The explanation is that the SS critics have seized upon these comments because her actual judicial record contains no evidence of an "improper

Whether her critics are motivated by the highest principles or the lowest, the reason that her comments are now drawing attention as opposed to her previous confirmation hearings has been explained again (and again) by Professor Adler et al.

I still stand with my mouth agape as to how people can't see this.

Yes, it's not a pretty pose.
6.6.2009 5:45pm
Barbra:
"Drawing attention" is not the issue. The issue is the conclusion drawn.
6.6.2009 5:49pm
troll_dc2 (mail):
EricH, neither you nor Prof. Adler has discussed the failure of anyone to complain about Alito's remark.
6.6.2009 5:51pm
ShelbyC:

Moneyrunner, why did no one complain about Alito?


Why would anyone complain about Alito? The complaint is that SS compared herself as a member of her race favorably to a generalized member of another race. Can someone please point me to where Alito did that? I keep missing it in the quotes people post.
6.6.2009 5:54pm
Tony Tutins (mail):

As I noted in my first post about the speech, my concern is what her remarks indicate about her conception of the role of the judge

What Professor Adler wants to see happen -- asking a nominee what she meant by certain statements -- is perfectly fine and unobjectionable. Assuming that that any statements she made regarding race or gender means she's a racist or sexist is not.

The upper reaches of the judiciary are still a white, male world. Acknowledging that one is an outsider and a pioneer is not inappropriate.
6.6.2009 5:55pm
ShelbyC:

Acknowledging that one is an outsider and a pioneer is not inappropriate.


Where did anyone suggest that it was?
6.6.2009 6:06pm
troll_dc2 (mail):
ShelbyC:


Why would anyone complain about Alito? The complaint is that SS compared herself as a member of her race favorably to a generalized member of another race. Can someone please point me to where Alito did that? I keep missing it in the quotes people post.



I quite agree that SS should not have said what she did. But should SA have referred to his family's experiences? If you argue that he was merely recognizing that he was shaped by his life expeiences, I would agree (and I would also recall criticism that SS's viewpoints were shaped by her life experiences).

I truly think that she was merely engaging in hot air and pandering to her audience. (SA may well have been doing the same to his audience.) She has 17 years of rulings that ought to provide evidence of whether she carried out what she said. Have I missed the article discovering a race-based ruling?

You can argue all day that this is about race, and I will say right back that it is about ideology and politics. That's all.

On another subject, I now have a copy of John V. Orth's Due Process of Law, which you cited to me the other day.
6.6.2009 6:06pm
Moneyrunner43 (www):
Tony, Tony, Tony,

Judge Janet Bond Arterton was not nominated for the Supreme Court. When she is, we'll take up her issues.

Regards,

Moneyrunner
6.6.2009 6:07pm
Tony Tutins (mail):

Sotomayor's supporters claim, however, that these prior speeches show that her 2001 speech was no big deal, as Republicans did not make these remarks an issue when she was nominated to the U.S. Court of Appeals for the Second Circuit. I am not sure I follow the logic of this argument, however, as it seems quite apparent that most Senators apply greater scrutiny to Supreme Court nominations than to those for lower courts.

And yet once you realize that Republicans excuse the prior confirmations of Sotomayor on the grounds that keeping racists off the Federal bench is not worth the effort, you start to consider how many cases a District Court judge rules on, and how few cases are appealed, and what in what a small number of those were the factual determinations held to be clearly erroneous. And then the decision to skip due diligence and confirm racists is indefensible.
6.6.2009 6:07pm
Moneyrunner43 (www):
troll_dc2,

You may want to brush up on the Ricci ruling. It has race as its central feature.

Regards,

Moneyrunner
6.6.2009 6:12pm
Moneyrunner43 (www):
Tony,

We agree. Sotomayor should not have been confirmed to the Court of Appeals. Perhaps this confirmation process will correct that error.

Regards,

Moneyrunner
6.6.2009 6:15pm
ShelbyC:

You can argue all day that this is about race, and I will say right back that it is about ideology and politics. That's all.


Well, I'm sure it's about both. Folks tend to cut alot more slack to folks they agree with. I personally find the "white folks don't know anything 'cause they're just a bunch of priveleged little idiots that get everything handed to them" meme about as tiresome as anyone else would find similar generalizations. And the main proponent of that view is the publically funded academic sector, so it's not an outsider/insider thing.

And I hope you like the "Due Process" book. I found it about as helpful as ~100 pages on the subject could possibly be.
6.6.2009 6:18pm
troll_dc2 (mail):
Moneyrunner, I have read the Ricci decision. Have you?

SS was part of the majority that affirmed the district court's ruling that New Haven could refuse to certify the results of a content-valid promotion examination because it believed that the racially disparate results would cause it to lose a lawsuit brought by minority-group plaintiffs. But she could not have done it alone. So were the judges who agreed with her racist too?
6.6.2009 6:21pm
Moneyrunner43 (www):
troll_dc2


SS was part of the majority that affirmed the district court's ruling that New Haven could refuse to certify the results of a content-valid promotion examination because it believed that the racially disparate results would cause it to lose a lawsuit brought by minority-group plaintiffs. But she could not have done it alone. So were the judges who agreed with her racist too?

First we can conclude that they were more concerned with a racial spoils system than with racial neutrality. As to their motivations, why do you assume their decisions were not founded on racist assumptions? Throwing out the results of a test specifically designed to be race-neutral based on the racial profile of the results hints at the racial attitudes of the judges. The soft bigotry of low expectations is a phrase that comes to mind, uttered by a man who was noted for being rather inarticulate.

As you indicated indirectly, race trumped justice in this case. So what do you conclude from that? Should judges make rulings that are racially neutral or should they put their thumbs on the scale to head off future lawsuits?
6.6.2009 6:41pm
ShelbyC:

So were the judges who agreed with her racist too?


Maybe. Would they have ruled the same way if the city had thrown out minority-heavy results because it would have feared that they would lose a lawsuit from white plantifs?
6.6.2009 6:43pm
Cato The Elder (mail):
Troll_dc2,

Of course we have. And Sotomayor found against Ricci in the case despite the fact that Ricci's laywer, Karen Le Torre, had tried to patiently explain to her - while Sotomayor was busily interrupting counsel with inane questions - that the New Haven fire department had tossed aside the exams despite the fact that on previous test taking, it had seen it fit to allow those results even though the scores on most recent test taking showed the exact same distribution of scores as one they deemed acceptable years before. Why the disparate treatment of results between those years? Because as it turns out, more slots were available for promotion in that particular year, and since politicians are largely innumerate, because then the acceptable number of black firefighters was promoted (2), that outcome was politically acceptable on its face despite the statistical insignificance between the two results. Did you listen to the oral arguments that the WSJ has handily provided?

The New Haven fire department had a chance to validate this test per the contract they negotiated with the fire-fighters, a kind of measure designed to minimize institutional corruption and favoritism decried by the NAACP, and indeed the validation study had already paid for in advance. The board responsible for that validation chose not to proceed with the statutory because the Mayor exerted significant political pressure in light of his minority political base, and instead New Haven argued in court that they could design a "better" test - even though the company that designed the test also testified in Court that they had advised the fire department to validate.

The conclusion I draw? Either Judge Sotomayor is incredibly dense, and thus not fit to be on the Supreme Court, or she is deliberately malicious in her disregard for non-minority defendants.
6.6.2009 6:52pm
Cato The Elder (mail):
(NOT SATISFIED WITH MY LAST POSTING)

Troll_dc2,

Of course we have. And Sotomayor found against Ricci in the case despite the fact that Ricci's laywer, Karen Le Torre, had tried to patiently explain to her - while Sotomayor was busily interrupting counsel with inane questions - that the New Haven fire department had tossed aside the exams despite the fact that on previous test taking, it had seen it fit to allow those results even though the scores on most recent test taking showed the exact same statistical distribution of scores as one they deemed acceptable years before. Why the disparate treatment of results between those years? Because as it turns out, more slots were available for promotion in that particular year, and since politicians are largely innumerate, because then the acceptable number of black firefighters was promoted (2), that outcome was politically acceptable on its face despite the statistical insignificance between the two results. Did you listen to the oral arguments that the WSJ has handily provided?

The New Haven fire department had a chance to validate this test per the contract they negotiated with the fire-fighters, a measure designed to minimize the kind of institutional corruption and favoritism decried by the NAACP, and indeed the validation study had already paid for in advance. The board responsible for that validation chose not to proceed with the statutory protocol because the Mayor exerted significant political pressure in light of his minority political base, and instead New Haven argued in court that they could design a "better" test - even though the company that designed the test also testified in court that they had advised the fire department to validate.

The conclusion I draw? Either Judge Sotomayor is incredibly dense, and thus not fit to be on the Supreme Court, or she is deliberately malicious in her disregard for non-minority defendants.
6.6.2009 6:58pm
Per Son:
ShelbyC:

Quite possibly. I have represented white plaintiffs where the theory of the case was that because the employer lost a major discrimination (against black employees) class action, it went overboard to show it was no longer racist and treated white employees much worse for disciplinary matters.

We lost on a MSJ, won the Appeal, and lost the jury trial. Although we lost, the point was not whether anyone is "racist," rather, it was always whether race based decisions were made to avoid a lawsuit. That seems to me, the reason behind New Haven's decision.
6.6.2009 7:02pm
c.gray (mail):

Many folks, myself included, feel that a Latina woman



Many folks, including myself, get annoyed every time someone repeats the phrase "Latina woman" because it is the equivalent of the phrase "female of Spanish-speaking descent woman".

Sotomayor's use of this sort of barely coherent redundancy in a prepared speech is a sign she shouldn't be on the 2nd Circuit, let alone the Supreme Court.

But I hope she is confirmed anyway because any replacement will be no better on any particular issue, and she appears to be a staunch defender of the 1st Amendment.
6.6.2009 7:03pm
Per Son:
Does anyone get the fact that Ricci is more than just minorities were favored over white men? The plaintiffs were white and hispanic!

I guess Sotomayor hates hispanic people too.
6.6.2009 7:05pm
ShelbyC:

Although we lost, the point was not whether anyone is "racist," rather, it was always whether race based decisions were made to avoid a lawsuit.


I was kinda responding to the form of the question anyway. I dislike the term "racist" because it doesn't really mean anything.
6.6.2009 7:12pm
Per Son:
Racist is a better term than "racialist" or "racialism."

The only folks I ever hear use those terms tend to be white power types.
6.6.2009 7:15pm
ShelbyC:

Racist is a better term than "racialist" or "racialism."

The only folks I ever hear use those terms tend to be white power types.


Huh. I thought it was British. Shows how much I know.
6.6.2009 7:23pm
Allan Walstad (mail):
Tony Tutins:

ME:


If you have a argument, let's hear it, ok?

YOU:

In the absence of any substantive argument of your own, for your substitution to be valid, one must assume you are arguing implicitly that the experiences of a "wise Latina" who had made it to the Court of Appeals was indistinguishable from any white male's.

If that curious assertion were true, if there were nothing special about a Hispanic female being nominated to the Supreme Court, if it was just as easy in the aggregate for Hispanic females to make it as white males, there would be proportionately as many Hispanic females as white males on the Court.

But that is manifestly untrue, as the past two centuries of the white male dominated Supreme Court shows.

So your argument fails.

For your substitution argument to describe Sotomayor's actual situation, the white male would have to have had an outsider's experience, the same as the Hispanic female has in reality. The odds would have had to have been stacked against him, the same as for the Hispanic female in reality.

And for that to be true, the Supreme Court would have had to have been dominated historically by Hispanic females.

And that's why the simple substitution fails.

Perhaps I should clarify, Tony. I was wondering if you had an argument of your own, not one to put in my mouth.

I pointed out that if a white male made comments analogous to Sotomayor's, it would bring down a storm of vitriol from the left. Experience also makes clear that no consideration would be allowed for the possible merits of the white male's comments or their "understandableness" on the basis of his life experiences. Why should Sotomayor get a free pass? She aspires to be a Supreme Court justice. Should she not be expected to think through the implications of her statements? She could have said that a diversity of life experiences and perspectives on the Court might lend itself to better decisions on average, ceteribus paribus, but no, she had to go ahead and say, several times, that she'd like to think someone with HER gender and ethnic background would be likely to make BETTER decisions. That sounds like fairly obtuse running off at the mouth to me, and thereby a negative, although in itself not so terribly sinister as others have taken it to be.
6.6.2009 7:34pm
Just an Observer:
Like many others, I am uncomfortable with Sotormayor's rhetoric in the speeches, even though I don't think it shows her to be "racist." I fully expect that controversy to be part of the political drama all summer.

But can someone soberly state a proposition describing why the "wise Latina" rhetoric disqualifies her from confirmation?
6.6.2009 8:02pm
Desiderius:
Tony Tutins,

"the 'Long Dong Silver' fan"

Who knew that the high-tech lynch mob would still be at it lo these 20 years? You'd think you'd eventually figure out that his neck is tougher than your rope. Time to MoveOn.

Thales,

"a member of an ethnic minority with many life experiences that privileged white males *tend* not to have, in view of the fact that they are privileged and sheltered, will be wiser"

If you cast your net wide enough on that one to encompass the middle-class Roberts, no, you're not going to get wide agreement on that premise.

I'm aware that the established Progressive church does quite a business selling indulgences to bright middle-class whites to expiate their "privelege", but that's because you catch them while they're young and, yes, inexperienced, and Mommy and Daddy are footing the bill for the credential that comes with the indulgence.

Once the "privileged" have gained enough experience to get clued in on the scam, they're not likely to be so enthusiastic to perpetuate it.
6.6.2009 8:42pm
Desiderius:
LM,

"You mean as opposed to the thoughtful commentary on this thread?"

Just came across the following quote from this liberal hero from this outstanding book:

"Polemical discussions are sometimes inconvenient; but I do not dread them, for they are nearly always, I think, improving. Wherever a taste for them prevails, as in Scotland, Switzerland, etc..., it is always found accompanied by other good qualities; while on the contrary, where they are despised, as in France, or crushed, as in Spain, the national character seems to suffer..."

Perhaps we should be thankful that here at least we have more than one pole represented.

BTW, Hughes' account of Maconochie's work is nothing short of inspirational, and might serve as a useful source of new ideas for our own exhausted criminal justice systems.
6.6.2009 8:55pm
Desiderius:
Just an Observer,

"But can someone soberly state a proposition describing why the "wise Latina" rhetoric disqualifies her from confirmation?"

It doesn't. What it does do is provide a useful forum for letting our currently ascendant Legal Cynics Realists know just how widely their doctrine is detested.

Barbra,

"As you are aware now from reading her entire speech, she says there that she, personally, and all judges, should aspire to objectivity."

My reading is that she is claiming that they do (aspire to objectivity) but that she is skeptical that they should. Perhaps you could guide me to a quote that would refute that reading. Serious request.

BTW, the consistent eliding of the real and ideal among SS supporters is a consistently troubling aspect of this discussion, as it is, in my admittedly limited experience, among Legal Realist Scholars as a whole.
6.6.2009 9:06pm
Russ (mail):
Only one poster here brings up the possibility that maybe, just maybe, her earlier speeches were not widely known when she was confirmed for the 2nd Circuit. The level of scrutiny is simply not the same.

How many politicians have been able to make it through House or other local races unscathed, only to get shellacked when they get further on the national stage?

With the limelight comes more digging into the background. That not found or ignored before has more bearing the higher profile the new position.
6.7.2009 4:45am
markm (mail):
Just an Observer: By repeatedly making such statements in public, Sotomayor has demonstrated that she is anything but wise.
6.7.2009 8:05am
Desiderius:
Separated at birth?

“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”

"We believe that the best of America is in these small towns that we get to visit, and in these wonderful little pockets of what I call the real America"
6.7.2009 10:08am
Tony Tutins (mail):

Many folks, including myself, get annoyed every time someone repeats the phrase "Latina woman" because it is the equivalent of the phrase "female of Spanish-speaking descent woman".

Sotomayor's use of this sort of barely coherent redundancy in a prepared speech is a sign she shouldn't be on the 2nd Circuit, let alone the Supreme Court.

Apparently "many folks" cannot distinguish adjectives from nouns. "Latina" is an adjective; "woman" is a noun.

Sotomayor's use of "Latina woman" is a sign she's familiar with gender agreement of adjectives and nouns in Spanish.

Ignorance of such basic facts is a sign one really lacks the knowledge base expected of VC commenters.
6.7.2009 10:47am
David M. Nieporent (www):
"Latina" is an adjective;
Or a noun.
6.7.2009 5:59pm
ReaderY:
This does seem to be much ado about nothing. Are there really no arguments better than these?

If serious arguments have no chance of persuading, will these?

George Orwell noted that one of the characteristics of a deterioration of civil society is a deterioration of discourse to the point where insults and epithets lose actual meaning, they just become mere sounds and squiggles that one slings thoughtlessly at ones enemies. One might as well insult Justice Sotomeyer's mother for all the real value these sorts of epithets add to the argument.

Frankly it's probably quite true that women will, on average, see some issues somewhat differently from men. I don't see any reason to get worked up about it. What's the fuss?

Affirmative action is one of the issues where I frankly think judicial restraint cuts in a liberal direction -- conservative judges are the one who need to restrain themselves. I think the constitution permits liberally-minded legislatures to have some discretion if the electorate wishes to live that way. Quite simply, it's rational to think that people from different backgrounds think differently and to think that ensuring that societal bodies have a diverse make-up will be of benefit to society, and hence to have some concern about the demographic composition of those bodies. The view may be right, or it may be wrong, but I don't it's proper for judges to impose their own baggage about these issues on others or to use the bench and judicial opinions as a vehicle to fill their prose with their own high-sounding declarations about the nature of the human condition or other political dogmas that empirical evidence and experience may eventually show to be wrong. I see a huge difference between Brown v. Board of Education, which dealt with a full-blown caste system with vast impact on people's lives, and the much milder considerations of race and gender, and much milder impacts, involved in a limited affirmative action program.

For this reason I think it's just plain silly to brand people who support affirmative action as racists/sexists etc. They may be wrong, but the epithets add no value to the discourse. They couldn't possibly persuade anyone who isn't already thoroughly converted. If anything they can only be turn-offs. I have sometimes attempted to satirize the extreme language and characterizations with which people in this country often use to refer to those who disagree with them. Perhaps I haven't helped matters by doing so.
6.7.2009 6:34pm
Desiderius:
ReaderY,

"I see a huge difference between Brown v. Board of Education, which dealt with a full-blown caste system with vast impact on people's lives, and the much milder considerations of race and gender, and much milder impacts, involved in a limited affirmative action program."

You're able to see such a huge difference because the "content of their character" consensus forged in the years following Brown led to its widespread acceptance, and, now, celebration.

The "limited affirmative action program" you advocate erodes and has eroded that consensus. Should it continue to so erode, I doubt that the impact will be so mild.
6.7.2009 10:33pm
Cobra (mail) (www):
Desiderius writes:

"You're able to see such a huge difference because the "content of their character" consensus forged in the years following Brown led to its widespread acceptance, and, now, celebration."



You do understand that Brown vs. Board of Education, a decision from one set of White Male Justices, was a reversal of Plessy v. Ferguson, decided by a different group of White Male Justices. It took more than half a century to get to that decision, and we had White Justices on the Supreme Court (Rehnquist) who believed that Plessy should've been upheld, as did the right wing's favorite failed nominee of all time, Robert Bork. If you believe that a wise Latina judge wouldn't have made a better decision on Plessy than the White Male majority then, or Rehnquist and Bork contemporaneously...

I don't believe in your "content of character" consensus, because America still has widespread housing segregation, and disparate racial treatment in regards to health care, lending, law enforcement and employment in spite of AA programs. Obviously the racial harmony/color blindness platitudes expressed on blogs hasn't trickled down to street level just quite yet.

I honestly believe that the ONLY reason Affirmative Action programs are being threatened in 2009 is because Whites still maintain a demographic majority in population.

That will no longer be the case within my lifetime.

--Cobra
6.7.2009 11:58pm
Tony Tutins (mail):

"Latina" is an adjective;
Or a noun.

Latina is not a noun in Spanish, only an adjective.

latino, na.

(Del lat. Latīnus).


1. adj. Natural del Lacio. U. t. c. s.

2. adj. Perteneciente o relativo a los pueblos del Lacio, o a las ciudades con derecho latino.

3. adj. Perteneciente o relativo a la lengua latina.

4. adj. Propio de ella.

5. adj. Se dice de la Iglesia de Occidente, para diferenciarla de la griega. Los padres de la Iglesia latina.

6. adj. Perteneciente o relativo a ella. Los ritos latinos.

7. adj. Natural de los pueblos de Europa y América en que se hablan lenguas derivadas del latín.

8. adj. Perteneciente o relativo a esos mismos pueblos. Los emperadores latinos de Constantinopla. Los países latinos de América.

9. adj. Mar. Dicho de una embarcación o de un aparejo: De vela triangular.

10. adj. desus. Que sabe latín. Era u. t. c. s.
6.8.2009 12:42am
tom swift (mail):

For this reason I think it's just plain silly to brand people who support affirmative action as racists/sexists etc.

It's far from silly. Affirmative action is an intrinsically sexist and/or racist concept, and an affirmative action program can only be implemented in a sexist or racist way. This institutionalized racism or sexism can only be excused by society if we consider some racism or sexism to be "good" and some to be "bad." In such a case, affirmative action would be (at least in some minds) "good" racism or sexism. Which some would consider just plain silly.
6.8.2009 2:41am
Leo Marvin (mail):
Des,

Perhaps we should be thankful that here at least we have more than one pole represented.

Always.


tom swift,

This institutionalized racism or sexism can only be excused by society if we consider some racism or sexism to be "good" and some to be "bad."

Affirmative action could use a good re-boot along the lines President Obama has suggested, i.e., shifting the emphasis from racial to economic status. However, to suggest any but the most strained formal similarity between AA and the monstrous racism of old it's meant to correct would be an obnoxious false equivalence.
6.8.2009 6:08am
Jam:

"wise Latina woman," or simply a "wise woman,"


I must object.

As a Puerto Rican male, is she saying that she is wiser than us? Can my richness of experience makes me wiser than white men?

So, who is left that is not wiser than white males?

====================================================

In Puerto Rico newyorricans are called people of the Air because they do not seem to "belong" neither to New York nor to Perto Rico and, they neither speak English when in new York nor Spanish when they are in Puerto Rico.
6.8.2009 5:27pm
Desiderius:
Cobra,

So its pretty much fuck consensus, we'll outbreed the bastards. How's that working out for the Palestinians?

Now if my experience is any guide, you number yourself among the bastards, but of course you'd be among the Elect who have accepted the doctrine of original racial sin, and have atoned for it/bought you indulgence from the privilege priesthood by accepting the affirmative action creed into your heart, so at least your can look down on us Reprobates.

You've really got the "My Daddy's race is eviler than your Daddy's race" vibe going there. Guess it's better to rule in Hell than serve in Heaven for some folks.
6.8.2009 9:46pm
Desiderius:
LM,

"Affirmative action could use a good re-boot along the lines President Obama has suggested, i.e., shifting the emphasis from racial to economic status."

Nixon screwed it up in the first place (among much else). Why so many of our best and brightest liberals - we of all people should know better - cling so tenaciously to a Nixonian policy is entirely beyond me.

My first political memory was Nixon's resignation (I was four), so maybe you could fill me in there.

"However, to suggest any but the most strained formal similarity between AA and the monstrous racism of old it's meant to correct would be an obnoxious false equivalence."

Well, the intent is of course 180 degrees different. But so is the intent of those who advocate EIT (euphemisms all around!) from the Nazis to whom they're now compared with some frequently and facility on these boards. The ends do not justify such means in either case.

You know, I just saw Harvard beats Yale 29-29 this weekend (highly recommended) and was struck by the number of working-class ethnics on Harvard's team, and the general strength of their character that shone through, especially in comparison to the Yalies interviewed (other than the clear mensch J.P. Goldsmith). I actually for the first time in my life felt a tinge of sympathy for Garry Trudeau (and even JBG's take on W) watching Mike Bouscaren acquit himself with such dishonor. How might history have been different had Trudeau been at Harvard!

But the thing is, forty years earlier, those working-class ethnics would not have been at Harvard, nor Goldsmith at Yale, and now forty years later, across our institutions, the gate has renarrowed for the Vic Gattos, the J. P. Goldsmiths, the Frank Riccis, as they've been crowded out to make room for upper middle-class admits from favored classes who, frankly, often offer more of a sense of entitlement and resentment than hunger (that was the parents who got them to the upper-middle in the first place), who often weren't required to rise to the standards that Gatto and Goldsmith were, and who consequently often are not integrated into the lives of our institutions, let alone elevated to leadership positions as Gatto was.

Of course there are exceptions, but it remains to be seen whether those exceptions need the AA boost in the first place. As with Gatto and Obama, character has a way of winning through without the AA boost. See, for instance, the 6 Catholics soon to be on the Supreme Court. Cobra's theories make no allowance for how such a state of affairs could come to pass in such a Know-Nothing country as he imagines ours to be.

As I attempt to empathize with the realists, I ask their favorite question, "Qui bono?" and come to the conclusion that the same sorts of Quis continue to do the bonoing and the same sorts of Quims continue to get bonoed. To wit, the Buscaren's of this world really would rather not have to deal with the Gattos, and will pursue any means necessary to eliminate that threat. AA let's them keep the Gattos down while coming out smelling like a Progressive.

Enough already.
6.8.2009 10:32pm
Desiderius:
The least talented book-titler in the country weighs in.
6.8.2009 10:36pm
Cobra (mail) (www):
Desiderius writes:

we'll outbreed the bastards. How's that working out for the Palestinians?"



Not an accurate analogy. In America, despite Republican efforts at voter suppression via caging, false felon purges of voting rolls, and voter intimidation (look up Rehnquist: Operation Eagle Eye) minorities in America NOW have the right to participate in government, not only at the ballot box, but from the highest seats of power in the legislative, judicial and quite obviously, the executive branches. Combine that with the fact that WHITE women are largest group that benefits from Affirmative Action, I don't blame those who pine for the "good ol' days" of pre-60's race relations to have a circle the wagons mentality.

They will soon be irrelevant except in the Mountain Northwest. That means anyone of these silly, think-tank originated ballot proposals to end AA can simply be reversed in a few years by sheer voting numbers and a new ballot proposal. Rule AA unconstitutional in the SCOTUS tommorrow? Scalia and Thomas, Roberts and Alito will be eventually replaced by Presidents elected by the new majority. Their rulings will also be reversed--permanently.

In America, unlike the IDF, the US Military is just burst ripe with folks who look just like me, Desiderius. 34% Minority. 21% African-American. In fact, the military comes to MY neighborhood for recruitment a whole lot more than I'd wager it does yours. The US Military is an excellent example of effective Affirmative Action.

That's why the Palestinian analogy doesn't hold water.

Desiderius writes:

"Now if my experience is any guide, you number yourself among the bastards, but of course you'd be among the Elect who have accepted the doctrine of original racial sin, and have atoned for it/bought you indulgence from the privilege priesthood by accepting the affirmative action creed into your heart, so at least your can look down on us Reprobates."



The "doctrine of original racial sin" was the original draft of the US Constitution, where a group of White Male landowners got together and decided that women of any color couldn't vote, slavery was fine (Blacks were 3/5ths of a man if you're keeping count for representation) and Native Americans just didn't count at all. That's why it had to be AMENDED, but it was still interpreted with invidious racism by one group of White Male Justices after another in the SCOTUS, (Dred Scott, Plessy, Lum v. Rice, Hirabayashi v. United States, etc...) We live in an America today, where Princeton Sociologist Devah Pager notes:

“Both race and criminal record had a huge effect of the likelihood on receiving a callback from employers. Probably the most surprising finding was that a black applicant with no criminal record was no more likely, in fact even slightly less likely, to receive a callback from employers than was a white applicant with a felony conviction.”




I don't look down on people who are against Affirmative Action on principle. I just find it hilarious when people point to the Ricci v DeStefano case as somehow a "White Male scale tipper" against the need for Affirmative Action in America.

Desiderius writes:

"Guess it's better to rule in Hell than serve in Heaven for some folks."




If "Heaven" is supposed to represent pre-Affirmative Action America, I'll remember to dress light and hydrate.

--Cobra
6.9.2009 2:37am
Nathan Hall (mail):
Since when are Senators and the public bound by precedent in criticizing the President's nominees?

The argument that these allegations aren't being raised in a timely fashion is just a distraction from the real question, which is whether they have any merit. Sotomayor evidently thinks that women generally reach better judicial results than men. Is that an acceptable view, or not? If it's not acceptable, who cares whether we erred in accepting it in 1998?
6.9.2009 7:56am
Nathan Hall (mail):
To be clear, let me quote Barbara:

"Because they were not examples of racism and sexism before they are not now."

What makes you think they weren't examples of racism and sexism before? The fact that the Senate didn't reject her? Since when do Senators get everything right?

These comments are troubling. They are not magically made less troubling because Senators failed to address them 11 years ago.

This argument is stupid even by the standards of RNC and DNC spin.
6.9.2009 8:04am
Leo Marvin (mail):
Des:

Nixon screwed it up in the first place (among much else). Why so many of our best and brightest liberals - we of all people should know better - cling so tenaciously to a Nixonian policy is entirely beyond me.

Nixon may have been the most flawed person to be President in a long time, but he was far from the worst President. That I couldn't see that until later on chastens me to be a more generous with his successors.

Well, the intent is of course 180 degrees different. But so is the intent of those who advocate EIT (euphemisms all around!) from the Nazis to whom they're now compared with some frequently and facility on these boards.

Not as obscene as an AA-Jim Crowe comparison, but this one is wrong too.

I have to run, but I'll try to get back later for the rest.
6.9.2009 8:10am
Jam:
Cobra:

I was born and raised in Puerto Rico and there is a reason why, after I graduated from college and lived in PR for one year that I decided to pull stakes and move out of the island. I now reside, since 1985, in Texas. Trust me, wise latino and latina governance is just like white liberal governance.

Thanks but NO thanks.
6.9.2009 10:16am
Cobra (mail) (www):
Jam writes:

"I now reside, since 1985, in Texas. Trust me, wise latino and latina governance is just like white liberal governance.

Thanks but NO thanks."




In Texas since 1985, huh? That would mean you're thankful for George W. Bush, and Rick "Seccessionist" Perry?

Neither Bush or Perry are Latino, or liberal, so it's interesting to look at the rankings of Texas under THEIR governance.

In fact it's VERY interesting.

--Cobra
6.9.2009 2:26pm
Jam:
I voted for "W" in his first run as governor. Did not for "W" since.

I have not voted for Perry.

If I knew that Perry was serious about secession I would vote for him. Although Perry himself is a reason to be pessimistic about who we elect as president of the Republic of Texas.

I lived in North Carolina for 3 years (1996-9) and returned to Texas because I missed living in Texas.

So, no I am not thankful for Perry nor Bush. Neither am I happy about so many northeasteners and west coast types moving here. They are doing their darnest to build the same mess they escaped.

Texas, despite those two morons, is still a better place to be. The sad comparison is that the Democrats have more morons.
6.9.2009 3:01pm
Desiderius:
Cobra,

"In fact, the military comes to MY neighborhood for recruitment a whole lot more than I'd wager it does yours. The US Military is an excellent example of effective Affirmative Action."

Agreed.

As for your guess as to my identity, you whiffed as badly as I did. The military likes its rednecks, however deep the shade.

My neighborhood has a freaking Lindbergh parade at least monthly for returning soldiers who gave their all for our country. I would rather the military be less ever-present in my neighborhood.

"Combine that with the fact that WHITE women are largest group that benefits from Affirmative Action"

No argument here. I thought you were the one arguing for continuing the pathetic charade.

"I don't blame those who pine for the "good ol' days" of pre-60's race relations to have a circle the wagons mentality."

1963, asshole. Seems to me that you're the one pining for the old days before Dr. King forged that consensus. Would Dr. King support AA? Likely he would, but as a buttress to that consensus, not as its hateful replacement.

He spoke to those ideals you so foolishly defame. As does our current President, you may have noticed.

"If "Heaven" is supposed to represent pre-Affirmative Action America, I'll remember to dress light and hydrate."

Post-, baby, post-AA America. You're the reactionary here. The war of all against all for which you evidently pine is the state of nature. Those rare times when we've joined together to rise above it should be cherished, not sold for a mess of self-aggrandizing pottage.
6.9.2009 5:18pm
Desiderius:
Cobra,

"Scalia and Thomas, Roberts and Alito will be eventually replaced by Presidents elected by the new majority. Their rulings will also be reversed--permanently."

The ignorance is so thick it could be cut with a knife. If you think our new Hispanic rising class is going to foot the bill for your victimization games, I've got a bridge in Brooklyn to sell you. See JBG and Rosetta for exact dimensions.
6.9.2009 5:24pm
Desiderius:
Saving JBG the trouble...

"My neighborhood has a freaking Lindbergh parade at least monthly for returning soldiers who gave their all for our country."

This is obviously an exaggeration. Only a few have given their all. Many more have risked it, and been greeted upon their return like conquering heroes. Given precedent, I'd prefer a more subdued, if equally heartfelt, reception.
6.9.2009 10:25pm
Cobra (mail) (www):
Jam writes:

"If I knew that Perry was serious about secession I would vote for him. Although Perry himself is a reason to be pessimistic about who we elect as president of the Republic of Texas.




I'm not touching this one. I'm gonna leave that one to waft around for a while.


Desiderious writes:

"I thought you were the one arguing for continuing the pathetic charade.



The really pathetic charade is the historical treatment of Women in America despite the lofty rhetoric of the Founding Fathers. Staying on the topic of this thread, look at the first Woman appointed to SCOTUS:

Desiderious writes:

"1963, asshole. Seems to me that you're the one pining for the old days before Dr. King forged that consensus. Would Dr. King support AA? Likely he would, but as a buttress to that consensus, not as its hateful replacement.



Hello? Calling me names doesn't help your argument. As a matter of fact, the title of the clip you posted--"Martin Luther King: I Have a Dream"--helps mine.

That's exactly what it was. A DREAM.

King didn't lead a "consensus" or a majority movement. He was loathed, persecuted and called everything but a child of God by most of 1963 America. Most of America back then hated the Civil Rights marches, speeches and mass demonstrations. You don't have to take my word for it, though...

"In August 1963, Gallup found considerable public opposition to the now-famous civil rights march on Washington in which King delivered his "I Have a Dream" speech. The poll was conducted about two weeks before the march, at which time 71% were familiar with "the proposed mass civil rights rally to be held in Washington, D.C., on Aug. 28." Of those who were familiar, only 23% said they had a favorable view of "the rally"; 42% had an unfavorable view of it (including 7% who predicted violence would occur) and 18% said it wouldn't accomplish anything.

In May 1964, Gallup asked, "Do you think mass demonstrations by Negroes are more likely to help or more likely to hurt the Negro's cause for racial equality?" In response, only 16% of Americans -- including just 10% of whites but 55% of nonwhites -- said such mass demonstrations would help the cause."




And because in 21st Century America, a White Male with a FELONY CONVICTION has a better chance at getting the same job than a clean Black Male, that "dream"...your "consensus" has yet to be realized.

I would say, given the historical data, more often than not, a Wise Latina with the richness of her experiences would more often than not, make a "better" decision than a White Male of the 50+ age bracket we're discussing, who hasn't had the same life experience. After all, 90% of Whites in that age bracket disagreed with the "consensus" you now champion.

Desiderious writes:

"He spoke to those ideals you so foolishly defame. As does our current President, you may have noticed."



Speaking to ideals and facing the reality of racism and sexism in America are two different things.

I wasn't around in 1963 to take that Gallup poll, but those who did, especially most Whites, didn't appreciate King's ideals. I didn't train attack dogs and firehoses on King and his marchers like White law enforcement led by Bull Connor did. It was Attorney General Robert Kennedy who
authorized J. Edgar Hoover to embark on a warrantless wiretapping campaign on MLK that would make Dubya blush. I was only a toddler when King was assassinated by "allegedly" James Earl Ray. I say "allegedly", because I'm not one to blindly trust the investigation of the same FBI that was illegally spying on King to discredit him in the first place.

My point? The White American public, government and establishment certainly weren't on board with King's Dream. Many aren't now. That's why deep down, most conscious minorities and cognitive students of American History understand that the attacks on Sotomayor aren't based on qualifications at all. She had better grades in school, and more judicial experience than the ones on the court now. This hubbub is really about the fact that:

1. She had the temerity to make a statement that challenges the perceived omniscience of the White Male Power Structure.

2. She was nominated by a Democrat, and a Black one at that.

Dig deep into that Gallup poll and read the results of those older White folks, and (too many non-whites for that matter) if you doubt my conclusions.

--Cobra
6.10.2009 12:25am
Desiderius:
Cobra,

"The really pathetic charade is the historical treatment of Women in America despite the lofty rhetoric of the Founding Fathers."

Whew! Way to get back to the catechism! For a minute there I was afraid that you might stumble upon an original thought.

"Staying on the topic of this thread, look at the first Woman appointed to SCOTUS:"

OK, here's the first paragraph at your link:

"A capacity crowd of 900 gathered under the tent in Radcliffe Yard on June 5 to celebrate Sandra Day O’Connor, the first woman to serve on the United States Supreme Court. “It’s been an amazing century for us,” O’Connor said, pointing out that women now make up about 50 percent of law students, even though they comprise only about 20 percent of the judiciary and 16 percent of equity partners in law firms. “Considering how dramatically conditions in this country changed for women in the last hundred years,” she said, “I think it’s difficult not to have optimism about our future.”"

I can see why you're so ostentatiously glum about our terrible country.

"Hello? Calling me names doesn't help your argument."

Third person is weak ad hominem.

Second person is busting a bar stool over your thick skull for lumping me in with Lester Maddox, not to mention defaming our country's founders and the founding document they hammered out (no thanks to the likes of you), and denigrating Dr. King's legacy. Given my luck in fights with actual present-day Lester Maddoxes, perhaps I'm lucky this is only the internet, but a man's honor needs defending.

But, you know, wounds heal. That is they do if one doesn't keep picking at the scab to keep one's shirt bloody.

And no, Dr. King's legacy no more belongs exclusively to you on the grounds of skin tone than Washington and Lincoln's belong solely to me, not that you seem much interested in claiming it. Bad move. Ass move, in fact.

That sort of behavior might get you tenure at our illustrious institutes of higher learning, but it doesn't cut any ice with me.

"King didn't lead a "consensus" or a majority movement. He was loathed, persecuted and called everything but a child of God by most of 1963 America. Most of America back then hated the Civil Rights marches, speeches and mass demonstrations. You don't have to take my word for it, though..."

That's why it's called a movement, Einstein. Social change - you may have heard of it. Dr. King achieved much success at that; you and your fellow Regressives, not so much.

"And because in 21st Century America, a White Male with a FELONY CONVICTION has a better chance at getting the same job than a clean Black Male, that "dream"...your "consensus" has yet to be realized."

Except for, you know, that white devil guy in the freaking White House. Nurse grievances much?

A link to that study might be helpful at this point, as those interviewing me for most of my jobs would have given their left nut for more qualified minority candidates, though, now that you mention it, most of those jobs did go to white females.

And of course I haven't been interviewing for that auto mechanic slot at Joe's Body Shop either*. I've had to rely on the Bad Old Iconoclast Network (of various races and genders) for my employment, as the Boomers running our institutions are quite mindful of getting their affirmative action on, whether compelled or no.

* - I don't claim that the study is outside the realm of possibility, but my Scots-Irish and/or German Catholic ancestors (forced to change their name from Werner back when) started their own damn body shops and ran Joe out of business. It's the American way. No doubt your Korean/Indian/Mexican/Iranian neighbors could give you some tips on how this works if you get tired of the White Regressive bullshit.

"I would say, given the historical data, more often than not, a Wise Latina with the richness of her experiences would more often than not, make a "better" decision than a White Male of the 50+ age bracket we're discussing, who hasn't had the same life experience. After all, 90% of Whites in that age bracket disagreed with the "consensus" you now champion."

No doubt Gallup polled them in their diapers, some indeed red.

"Dig deep into that Gallup poll and read the results of those older White folks, and (too many non-whites for that matter) if you doubt my conclusions."

I'll live in 2009 rather than 1964, thanks. If you'd rather relive the good/bad old days perpetually, I'm sure there's some old farts down at the local American Legion Hall who would oblige you.
6.10.2009 6:09pm
Desiderius:
LM,

"Nixon may have been the most flawed person to be President in a long time, but he was far from the worst President. That I couldn't see that until later on chastens me to be a more generous with his successors."

Given the climate in which he served and the concomitant opportunities/dangers, I'm afraid he was. He confirmed a lot of our worst prejudices and missed the chance to dispel others, in several different directions. Your conclusion, however, is well taken. I'm more of Carter fan than most, or at least less of a critic. OK, both.

"Not as obscene as an AA-Jim Crowe comparison"

Would that it were. I think the one shining difference is that there are plenty of liberals of various political stripes who do walk the talk - sending their kids to public schools when they could afford private, supporting policies for the greater good that disadvantage their own, devoting themselves to community service (I know several personally, and they're the best people I know), whereas with Jim Crow there was no real moral high ground to uphold.

Unfortunately, such people are no longer the norm, if they ever were. Which isn't to say that they should be discounted, just that the shortcomings of AA as currently practiced should also not be swept under a well-intentioned rug.

"I have to run, but I'll try to get back later for the rest."

Hope I haven't scared you with my dust-up with Cobra. The opposite of love isn't hate, its indifference, and I'm afraid Cobra has gotten more than his share of the latter, from liberals mistaking it for politeness.

Very curious for your thoughts, including exasperated condemnation, if warranted. Or even if not.
6.10.2009 6:27pm
Leo Marvin (mail):
Des,

including exasperated condemnation

Not at all. In fact I must not have anything useful to say, since my attempt to come up with something produced a stream of drivel, trust me, I'm doing you a favor by sparing you. It had pointless references to, among other things, my crazy brothers, Al Gore, Ann Coulter, Hugo Chavez, cutlery, safety nets and Rorschach tests, and by the time I gave up trying there was still no end in sight.
6.11.2009 3:16am

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