Subversive Sotomayor Thought

June 1, 2009 at 1:59 am (By Amba)

I’ve been trying to explain something devilishly paradoxical on Twitter.  Either I’ve just run up against the limitations of Twitter, or I just haven’t mastered the medium yet.

What I’ve been trying to say is that while I am repelled by Sonia Sotomayor’s fatuous and politically-correct suggestion that a “wise Latina woman” would necessarily make “better” decisions than a white man, and while I certainly don’t believe two wrongs make a right, or that it’s okay to punish young white males for past preferences they don’t remotely benefit from, there are a couple of things about the “empathy” and “affirmative action” arguments that I understand.  I don’t endorse them, because I don’t think reverse discrimination is any kind of solution — fair and category-blind competition is, and rather than “the soft bigotry of low expectations” we need minorities to seize their opportunities to prepare and compete — but I can understand those arguments, and I think that just dismissing them with scorn betrays a huge blind spot.

For over two hundred years it was fine to restrict voting rights and many other kinds of civic, educational, and economic opportunity to white males.  Now, it’s no longer okay.  We’ve seen the light:  discrimination is wrong.  Good!  But now, suddenly — now that it could go the other way — we’re piously shocked, shocked, by any form of discrimination.

Isn’t this a little like opposing the Vietnam war and laying claim to high principle when a major unspoken factor was that you could be drafted to fight in it?

It’s true:  reverse discrimination, as in the New Haven firefighters’ case, is as unjust to individuals as the original kind, and it doesn’t do individuals in the favored groups any favors, either.  That to me is uncontroversial.  What gets under my skin, though, is conservatives’ lofty moral disapproval of some minority politicians’ liking for racial preferences.  What was standard operating procedure for 200+ years but a great big racial preference?  Minorities are to be sternly held to a higher standard than our own ancestors, because . . . our ancestors didn’t know any better?  Because having suffered from discrimination yourself should make you a better, nobler person?  How reverse-racist is that?

Minority politicians like Al Sharpton are just humans who see their chance and their communities’ to “get some.”  Given that chance, they’re venal and willing to work any angle.  Poor things, they don’t have the benefit of a long patrician tradition of dignified, civilized discrimination.   They’re crass and shameless.  They don’t have a huge grey institutional Puritan rock to do the discriminating discreetly for them.

By the same token, I’d like to know from the context whether Sotomayor was claiming that her stereotyped “wise Latina female” would make better decisions across the board because of her life experiences, or only that she would make fairer decisions specifically in cases concerning “that life,” the life lived by poor and minority people.  The law may not and must not excuse lawbreaking on the excuse of disadvantage (“Gee, Officer Krupke! We’re depraved because we’re deprived!”).  On the other hand, it’s a question whether a judge like John Roberts is purely unbiased or whether he does identify with the “power structure” and make decisions that are blind to the realities of a life he hasn’t lived.  Bias becomes invisible when you assume that the way you see things is the way they are for everyone.

“Empathy,” however, means imagination if it means anything.  It means striving to imagine your way into circumstances different from your own as part of the process of applying the law, a part that may color the application of the law while it must not trump it.  That kind of perspective-broadening empathy would be required of a Sotomayor, too, and you’d have to look for it in her decisions on a wide range of cases.

I still don’t think I’ve succeeded in nailing what bothers me (and now I’m falling asleep).  It’s a double standard in tone — whichever side it comes from.  It’s twisting, exaggerating, and misrepresenting the other side’s positions — and playing right into it by indulging in lazy groupthink.  The part of Sotomayor’s remarks that annoys me most isn’t mentioned much:  her *nudge nudge wink wink* tone when she says “Yeah, yeah, I know, we don’t make law, ha ha,” like you and I know better. That’s where she seems to me to give away a weakness for judicial activism.  Her self-correction sounds insincere.  It’s also so brazenly in-groupy and parochial — subtext, “we right-thinking folks all get it.”  People need to get out more.


  1. Maxwell said,

    What I’ve been trying to say is that while I am repelled by Sonia Sotomayor’s fatuous and politically-correct suggestion that a “wise Latina woman” would necessarily make “better” decisions than a white man

    Here’s Sotomayor’s whole speech. I’m not wild about it, but I think it’s important to understand the quote you refer to in context (not to mention to quote it accurately, which no one seems to be doing for some reason). It may answer at least a couple of your questions as well.

  2. wj said,

    To expand that point, what the lady said (in the context of a speech to a La Raza meeting) was “I hope that a wise Latina woman….” Which is a whole different thing than saying that she necessarily would. Not only is context important, but at minimum people ought to get the whole sentence quoted to get some sense of what the message was. Not to mention the rest of the speech, which spoke at length about the necessity of at least trying to set personal feelings aside in making a judgment.

    It might also be worth noting, in the particular case of the New Haven firefighters, that the one Hispanic involved was one of the plaintiffs . . . that is, one of those that the decision she let stand had deprived of a promotion. Hardly the act of someone acting on ethnic prejudice.

    Those are the kind of details that Twitter just doesn’t leave room to mention. Which suggests to me something about the medium. It might be better to think of it as equivalent to headline writing: a way to grab attention, rather than a way to communicate anything of substance. (And we all know how wildly headlines can misconstrue what is actually in the story.)

  3. Maxwell said,

    Thanks for going deeper with it. Here’s my own opinion, unmasked: that speech is atrociously written. That for me is the major concern with her as a potential Supreme: anyone who could publish something so muddily composed at least deserves a few weeks of careful questioning.

    The evidence for actual bigotry, however, is very, very thin. As wj notes, there is a bright line between “would necessarily,” as you originally quoted it, and “I would hope.” Moreover, the theme of the speech strongly suggests that she was not talking about all cases generally, but cases involving gender or ethnic discrimination, since these are the only sorts of cases she alludes to in the piece. Nor does her judicial record support any such allegations; quite on the contrary, she dissented in favor of a white, antisemitic bigot back in 2002. And as others have noted, all that can really be gleaned from the Ricci case is that she doesn’t favor completely overturning basic discrimination law.

    Finally, a note about La Raza. That term for mestizos and Latinos seems to have originated with this book, which is actually a kooky utopian work predicting that Iberian peoples and their descendants would begin a period of racial integration and harmony. Not exactly Mein Kampf.

  4. Icepick said,

    Minorities are to be sternly held to a higher standard than our own ancestors, because . . . our ancestors didn’t know any better?

    How about “Minorities should be held to a higher standard than our ancestors because our ancestors’ standards were poor”?

  5. amba said,

    Definitely yes. My problem is with the “shocked, shocked” when minorities don’t get up to speed on the higher standard right out of the blocks. Granted, that would be ideal; unfortunately, minorities are human — and are offered devilishly seductive, easier and more gratifying alternatives. And it’s probably fair at least to feel, “Where were these principled higher standards when we needed them?”

  6. Maxwell said,

    I’ve been going to her a lot lately, but I like McArdle’s read on that question.

  7. amba said,

    McArdle generally rocks.

  8. amba12 said,

    Not exactly Mein Kampf.

    Just so, Sotomayor’s remarks at their worst don’t rise anywhere near to the level of David Duke’s, and — was it Rush or Newt? — was over the top in the comparison.

  9. amba12 said,

    The speech may be badly written, but we’ll need to see how her opinions are written.

  10. Liza said,

    Just curious: why does the word “la raza” have such a negative connotation for everybody? It does not mean “race”, actually: when applied to Spanish-speaking community, it actually denotes the absence of race, the community of mixed-race or not-easily-identifiable-race people. Language/culture/traditions are the common denominator here, not the skin color/hair/facial features. Makes more sense than any racial identifiers we have to check routinely on all kinds of forms: those describe nothing but superficial.

  11. amba12 said,

    The word “raza” means “race,” though, doesn’t it? At least it appears to be cognate. (It looks as if the word “race” is etymologically related to “roots;” hallloooo, resident etymologist?) So it’s understandable if people not conversant with the literature read it as “race.” Could’ve been “La Puebla” or something.

  12. Icepick said,

    My problem is with the “shocked, shocked” when minorities don’t get up to speed on the higher standard right out of the blocks.

    Okay, when will we be NOT right out of the blocks? I’m 41, and almost all of the major Civil Rights legislation was passed before I was born, or when I was still in swaddling clothes. These arguments all sound old to me now, and I’m only middle-aged.

  13. amba12 said,

    Well, yeah . . . “I certainly don’t believe two wrongs make a right, or that it’s okay to punish young white males for past preferences they don’t remotely benefit from.” I can just understand minorities saying, “Funny that they want the fairness standards to get strict just when the unfairness was finally going our way.” Marx’s saintly proles, having been oppressed, became . . . what? Great oppressors. “Everybody’s lookin’ for somethin’.”

  14. Maxwell said,

    Well here’s what Steve Sailer – not exactly a liberal on affirmative action policy – has to <a href=""say about that:

    For purposes of sensible public policy, arguing over whether genetics plays a role in racial differences in achievement is a red herring. What’s crucial to understand is that racial differences—for whatever reasons—are unlikely to vanish Real Soon Now, as all right-thinking people are supposed to assume.

    Say it’s discovered in 2010 that the entire cause of the black-white IQ gap is some hitherto unknown micronutrient needed by pregnant women that African-Americans don’t get enough of, and a crash program is put into place immediately to solve the problem. If that happened, the IQ gap among working-age adults still wouldn’t disappear until the late 2070s.

    Personally, I would prefer if affirmative action programs were adjusted to focus on family educational history and wealth rather than ethnicity. But even so, claiming that programs we have should have worked by now if they’re going to work is not actually supportable.

  15. amba12 said,

    Bad link to Sailer; maybe you can repost.

    Even he, in his example, tacitly assumes that the cause of the gap is physical, even if environmental. It could be cultural. Kids acquire a lot of their brain capacity for language, thought, and achievement by listening to their parents talk during the first year of life, before they can talk. Add lack of confidence, lack of familiarity with IQ test material, and the glamorization of ignorance, and you might have it. Or has this been disproven by comparing carefully matched controls?

  16. PatHMV said,

    Hypocrisy is inherent in just about every political argument, Amba. Most individuals and groups use whatever argument they can find to support their end at any given moment. That’s why the founding fathers worked so hard to craft a governmental structure which would work well as individuals and groups aggressively pursued their own self-interests. The balance of power approach works fairly well, over time.

    In reality, in each new clash, the ultimate decision is determined by how some fairly small group in the middle winds up going. Ideally (and I think often), the middle is persuaded (or not) by how well the argument being made, however hypocritically, applies to the particular facts and issue at hand. This middle is not necessarily the ideological middle. Sometimes it is the middle as exemplified by Edmund G. Ross, who was staunchly opposed to every principle which President Johnson had, but who, in the particular circumstances of the impeachment trial, found a higher purpose, above his political disposition.

  17. Icepick said,

    Marx’s saintly proles, having been oppressed, became . . . what? Great oppressors.

    No, they weren’t even that. They were just tools of their new masters.

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