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The "Wise Latina":

Like everyone else, I've been following the kerfuffle around "the wise Latina" remark. Here's my short take on it:

1. I think she probably meant it when she said that she believed that her background and upbringing would make her a "better" judge than a white man (or white woman). I don't think she meant it would merely make her "different," I think she probably really thought (and thinks) it makes her "better." She has said similar things enough to suggest that she truly believes it.

2. That she believes it does not make her a racist. Similar statements could be made if a dwarf or a football player or an immigrant or someone who overcame cancer or a former astronaut were nominated--that their background makes them a "better" judge than someone who lacks that background.

3. That idea--that your background can make you a "better" judge--is, in my personal opinion, a silly idea that mischaracterizes the proper view of a judge. Nonetheless, it is a perfectly mainstream view in the academy and legal profession today--which I suspect accounts for how uncontroversial her statements seemed when they were uttered at places like Berkeley. Anyone who has attended a faculty workshop in the past decade at least wouldn't bat an eye when someone says something like she said. It is sort of lowbrow legal realism, perhaps tinged with a bastardized critical race studies view of the law, taken to its extreme. She was really just parroting something that she picked up along the way during her life. The statement is the sort of thing that sounds like a sophomore philosophy student who is active in the sorts of circles she spent her education in and has never been pressed to actually examine that conventional wisdom. Frankly, I find it to be sort of an intellectually embarrassing statement for someone of her education and distinction to hold. I'm not even sure she has the slightest idea of what that statement means and has never seriously thought about it. It is just something you say when you move in those circles and everyone nods their heads seriously.

4. Given the lightweight and intellectually unserious way in which she states the principle, it is hard to imagine that this would actually affect her judging, as opposed to being the sort of thing that you say when you are trying to appear profound in an academic setting. This really is the sort of stuff that gets spouted a thousand times a day on university campuses all over America. There are academics who work these things out and defend the conclusion. I don't think that Sotomayor is one of those people--she is just a lawyer/judge who picked up some third-hand rendition of the idea and decided it sounded profound. I don't think it even amounts to a jurisprudential philosophy as much as just repetition of the conventional wisdom in her circles.

5. The idea that one's life experience matters to judging is exactly what President Obama had in mind when he suggested that "empathy" is an important attribute of a judge. The view is quite mainstream in their legal circles, from what I can tell, and even though I disagree with it I understand the logic of the argument.

6. In my opinion, Sotomayor's comments are way, way more relevant and concerning than the outrageous (in my view) attempts to attack Justice Alito over his membership in "Concerned Alumni of Princeton." The McCarthyite attacks that were made on Alito about CAP and to try to suggest that it suggested that he was a racist or a sexist were way beyond the pale and in many ways a new low in confirmation hearings. Sotomayor's statements are at least relevant if one considers judicial philosophy to be relevant as they seem to suggest that she believes that a judge's personal experience should be relevant to judging (at least that's how I read the idea). The attacks on Alito were just crude character assassination.

6. I think this might be the most interesting issue that arises in her confirmation hearing--will she try to justify her statement or back away from it? Will she say that "better" really means "different" or that she really believes that she is a "better" judge as a result of that experience? There seems to be a sense that what is a fairly commonplace view in the legal academy and activist circles is out of step with what the majority of Americans think of as being the proper role and character of a judge. It will be interesting to me to see how this culture clash gets navigated. Obama says that she "misspoke"--but unless I'm mistaken, he has never explained what she actually intended to say. Obviously she should be given an opportunity to clarify her views--it will be interesting to see how exactly she decides to clarify them.

7. My bottom-line view is that none of this should really matter. When it comes to the Senate's Advise and Consent role I think that the Federalist Papers (as I read them) pretty much have it right--the purpose of the Advise and Consent role of the Senate is to make sure that justices nominated by the President have the integrity, experience, ability, and independence to uphold the Third Branch as a coequal branch of government. As I read it, the purpose of shared authority between the President and Senate is to make sure that justices who are appointed are not cronies of the President but will act as an independent third branch.

I also recognize that this is a fairly naive view of Senate confirmation post-Bork. From a political, rather than constitutional perspective, I have no opinion as to whether it is worth it for opponents of Sotomayor to try to attack her the way that Bork and Alito were smeared, although simply for the good of the country I would hope that they wouldn't sink to quite those depths.

R Nebblesworth (mail):
5. The idea that one's life experience matters to judging is exactly what President Obama had in mind when he suggested that "empathy" is an important attribute of a judge. The view is quite mainstream in their legal circles, from what I can tell, and even though I disagree with it I understand the logic of the argument.

Do you honestly believe that someone's background and life experience don't permeate everything they do? What do your "legal circles" believe, that judges impartially 'discover' the law instead of creating it, or what? I'm genuinely curious about what you mean here.
6.11.2009 10:34am
SeaDrive:
The fact that she repeated this remark several times suggests to me that she really isn't very good at public speaking, isn't very good at it, and doesn't put a lot of effort into it. She put together one speech years as ago, and has been using modifications of it when she had no choice but to address a crowd from a podium. You might as well complain about her choice of shoes for all it means about her work as a judge.
6.11.2009 10:39am
wolfefan (mail):
Hi Todd -

You refer to Alito and the Princeton thing, but I don't think that's the most germane comparison on this particular issue (and FWIW I agree with you on the CAP criticisms.) More to the point at hand, what do you think about Alito's explcit statement that he takes into account his background and his family's background when he approaches a case? Ilya addressed this a little bit - what is your take?
6.11.2009 10:47am
rosetta's stones:
The congresscritters will likely pitch it to her soft, and if she taps one back to the pitcher, she and Obama will have only themselves to blame. I'd suggest she leave the academic rambling for the academics. If she can't hit this one out of the park, she's got no business being a SC judge.
6.11.2009 10:51am
Dan28 (mail):

I'm not even sure she has the slightest idea of what that statement means and has never seriously thought about it. It is just something you say when you move in those circles and everyone nods their heads seriously.


What a disgusting, condescending, obnoxious post. It is entirely ad hominem and without merit and you frankly should be ashamed of yourself for putting your name to it.
6.11.2009 10:52am
NaG (mail):
I took her comments to be a throwaway salute to her heritage and background, and not a serious argument about her judging abilities or the judging abilities of white men in general. People often say that certain experiences make a person "better," without implying that people without the same experience are necessarily worse in comparison.

It's true that if the same statement had been made by a white man with the ethnicities reversed, he would have been branded a racist and run out of town. However, given the context, I think her statement was more a poor choice of words rather than a racist statement.
6.11.2009 10:52am
byomtov (mail):
The McCarthyite attacks that were made on Alito about CAP and to try to suggest that it suggested that he was a racist or a sexist were way beyond the pale and in many ways a new low in confirmation hearings.

Are you objecting to the negative characterization of CAP, which seems fairly accurate based on the linked article, or to the idea that Alito must necessarily have shared its views, just because he joined?
6.11.2009 10:54am
PLR:
Given that all potential nominees are likely to have an adequate understanding of the Constitution and the role of the judiciary, I don't see how it's controversial that we would prefer nominees with empathy over those that do not.
6.11.2009 10:54am
scattergood:
Let's look at the FULL PARAGRAPH of what she actually said:


Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.


She clearly doesn't have blinders on when it comes to race, gender, or culture either physiologically or culturally, in making her legal decisions. This is the problem.

Why exactly does the statue of justice have a blindfold on? Do you think Judge Sotomayor would agree with the reason why? Also, what would happen if a white male said:

Whether born from experience or inherent physiological or cultural differences, my gender and national origins may and will make a difference in my judging. I would hope that a wise WASP man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn't lived that life.

Of course he would be branded a racist and would never be nominated. The fact that Judge Sotomayor isn't being treated the same by you, is in and of itself a racist act.
6.11.2009 10:56am
Dan28 (mail):
To underscore that point, let me again post the extended section of this speech:

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives -- no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Regardless of whether you think this is true or false, it is clearly thoughtful and well considered. CRT or post-modernism may seem like a trivial or academic enterprise to you - as a white person, it's your privilege not to care about things like the degree to which your race or culture affect your decisionmaking. But people like Sotomayor can't escape the subjects of race and culture. That is, indeed, the very thing that makes it so essential to have minority voices in the judiciary. Your obnoxious condescension, to some extent, justifies Sotomayor's actual position on the issue - that white people can often be incredibly ignorant when it comes to the topics of race and culture, simply because we have the privilege not to think about such questions if we prefer not to.
6.11.2009 10:58am
CJColucci:
Don't you get it, folks? Todd is being ironical. He's trying to make Sotomayor look good with what, to an undiscerning observer, would be a lame attempt at passing the parochial views derived from a melanin-deprived, rhythmless, hetero-hegemonic life experience as normative. Swift is polishing his crown and packaging it for delivery even as we read.
6.11.2009 10:58am
DennisN (mail):
NaG :

I took her comments to be a throwaway salute to her heritage and background, and not a serious argument about her judging abilities or the judging abilities of white men in general. People often say that certain experiences make a person "better," without implying that people without the same experience are necessarily worse in comparison.


If she had said her experience as a "wise Latina woman" made her a better person, I don't think reasonable people would object. I'm a better man for having served in the Army, and am a better person for having endured [insert your favorite hardship here]. Not better than you, better than I had been previously. I'm a better wisearse, anyway.

But she said it made her "a 'better' judge than a white man."

That is racist.

If a white male would be disqualified for having made a similar stupid statement, then a "wise latina woman" should be similarly disqualified. To do otherwise would be racist.






It's true that if the same statement had been made by a white man with the ethnicities reversed, he would have been branded a racist and run out of town. However, given the context, I think her statement was more a poor choice of words rather than a racist statement.
6.11.2009 11:05am
anonoprof (mail):
"Like everyone else, I've been following the kerfuffle around "the wise Latina" remark."

This remark better captures the irrelevant and sad state of conservatism than any other I've seen in quite awhile. Echo chamber, focus on trivia, shot through with confirmation bias - and the rest of the post: condescending without appreciating the irony of it - and just plain wrong. No one, in a real sense, really cares about this remark.
6.11.2009 11:05am
DennisN (mail):
Damn! I wish there was an edit button. The orphan paragraph should have been edited out by this not so wise (except for being a wisearse) guy.
6.11.2009 11:06am
Just Me:
Rather than speculate, why don't we just look at the evidence, and compare the number of bad US Supreme Court decisions written by white men to the number of bad US Supreme Court decisions written by "wise Latinas"? There are certainly far more of the former than the latter.
6.11.2009 11:07am
stevefromcleveland:
The sneering, dismissive, and petty tone of this post says much more about Mr. Zwicki than it does about Judge Sotomayor.
6.11.2009 11:10am
Thackery:
Dan28 says:

"But people like Sotomayor can't escape the subjects of race and culture. That is, indeed, the very thing that makes it so essential to have minority voices in the judiciary. Your obnoxious condescension, to some extent, justifies Sotomayor's actual position on the issue - that white people can often be incredibly ignorant when it comes to the topics of race and culture, simply because we have the privilege not to think about such questions if we prefer not to."
What a whining entitlement bot! I bet you're one of those people who harangues incoming students at those multi-culti victimhood seminars that Freshman are coerced into attending, no?
6.11.2009 11:12am
Dan28 (mail):
Last point,

There are academics who work these things out and defend the conclusion. I don't think that Sotomayor is one of those people--she is just a lawyer/judge who picked up some third-hand rendition of the idea and decided it sounded profound

Did it ever occur to you that perhaps as a Puerto Rican woman, these ideas were important to Sotomayor because she herself has had to struggle with questions about what her ethnic identity means?

The answer is no: you've never had to struggle with questions of race or ethnic identity yourself, so it doesn't occur to you that all people in this country aren't similarly privileged. If you want to know why a wise latina is a better judge than a white male, you can see it all in this post.
6.11.2009 11:14am
Hauk (mail):
I bet you're one of those people who harangues incoming students at those multi-culti victimhood seminars that Freshman are coerced into attending, no?

Please! "Freshman is coerced into attending".
6.11.2009 11:14am
Ken Arromdee:
Rather than speculate, why don't we just look at the evidence, and compare the number of bad US Supreme Court decisions written by white men to the number of bad US Supreme Court decisions written by "wise Latinas"? There are certainly far more of the former than the latter.

By this reasoning, an Al Qaeda terrorist would make an ideal US Supreme Court justice.
6.11.2009 11:23am
NaG (mail):
Hauk: Please! "Freshmen are coerced into attending."

scattergood: At this point, reverse-racism is not seen in the same light as racism.
6.11.2009 11:24am
martinned (mail) (www):
Who knew there were so many meanings for CAP... I'd only ever heard of the one.
6.11.2009 11:25am
Anon321:
Several commenters in this thread (and probably thousands more elsewhere) have suggested that if the comments had been made by a white person, they would be deemed racist, and, unless we're going to embrace racism ourselves, we should hold her comments to the same standard.

Daniel Larison had an interesting post, which suggests, at a minimum, that it's not quite that simple:


If being a part of a certain white ethnic group is something that one is “entitled to celebrate” in a similar way, would we consider it racist for an Armenian or a Russian or German-American to express a similar pride in his heritage and express the hope that it would inform his judgments in such a way that he would be a better judge than someone not from that background? Perhaps the son or grandson of Russian emigres has a more keen appreciation for the rule of law because his family escaped from the grip of a totalitarian state; he does not take for granted what most of us and our ancestors have always known. Perhaps the grandson or great-grandson of German immigrants would be more attentive to the predicament of ethnic communities that are tied in the public’s mind with a foreign enemy in wartime. For that matter, perhaps the descendant of old-line English settlers deeply values the American constitutional heritage because he sees it as being inextricably interwoven with the heritage of his own ancestors, and so his support for the fundamental law has added significance for him. One could come up with other examples, but I think these already make clear that the statement in question–on which so much of the resistance to Sotomayor seems to be based at this point–may be many things, but racist is not one of them.


I take it that it would be fairly noncontroversial for someone to say that he would hope his experience as an immigrant from the USSR would help him reach a better conclusion in cases involving State infringement of individual civil liberties. Clearly, a lot of the criticism of this remark depends on concluding (a) that she was not talking about the specific context of discrimination cases, and (b) that Latina should be deemed equivalent to White man, and not (as Larison suggests) more analagous to, say, Russian immigrant.
6.11.2009 11:26am
Steve:
I wonder when people will realize that Judge Sotomayor didn't actually claim that she was a "wise Latina." I guess probably never, it would be too inconvenient.
6.11.2009 11:27am
David M. Nieporent (www):
What a disgusting, condescending, obnoxious post. It is entirely ad hominem
Actually, it's not even partly ad hominem; you're using the phrase incorrectly.
6.11.2009 11:33am
zuch (mail) (www):
Prof. Zywicki:
The McCarthyite attacks that were made on Alito about CAP and to try to suggest that it suggested that he was a racist or a sexist were way beyond the pale and in many ways a new low in confirmation hearings.
Why is membership in an organisation that fought against the old blue-bloods getting diluted by the hoi polloi (and wimmen and darkies) that might stain their own pedigree as honourable Princeton alums not something to be concerned about? We're not talking a private Elk's Club here; we're talking about a public institution which receives tons of federal gummint money.

Cheers,
6.11.2009 11:35am
Andrew J. Lazarus (mail):
It's so hard to be a white male in America. Even Republicans nominate unqualified colored people for the wrong reasons.
"I have followed this man's career for some time," said President George H.W. Bush of future Justice Clarence Thomas while introducing him "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."
Incidentally, the negative description of CAP in the linked article agrees with my own recollection, although I do find it somewhat surprising that second-generation Samuel Alito would join a group in favor of more affirmative action for Princeton alumni sons (not daughters), a group that wolud perforce be largely WASP. Perhaps he disliked coeducation and integration that much.
6.11.2009 11:36am
MAM:
The poster has essentially validated much of what SS is saying. The condescension and sense of entitlement to what is right is oozing off the screen. No real basis in fact,but the entitlement is oozing notwithstanding. That is exactly why some would hope that someone who does not have this sense of privilege would be a better judge or, at least, improve the Court.
6.11.2009 11:39am
CaDan (mail):
tl;dr: She's not smart enough to be racist.
6.11.2009 11:40am
Cato The Elder (mail):
Look, if the CRT people want to argue their theses in front of the American people honestly, I have no problem with that. Just be upfront about it and admit what these people are really discussing in their ideologically barren scholarship, instead of lying and pretending they are the same "nuanced" views that the public holds.
6.11.2009 11:44am
Cato The Elder (mail):
I mean "*intellectually* barren scholarship", shucks. Incredibly, I really proof-read that. :-(
6.11.2009 11:46am
Bad English:
"What a disgusting, condescending, obnoxious post. It is entirely ad hominem and without merit and you frankly should be ashamed of yourself for putting your name to it."

You don't even see the irony here, do you?
6.11.2009 11:50am
scattergood:

NaG: At this point, reverse-racism is not seen in the same light as racism


And that is exactly my point. Racism is racism, regardless of who does it. To deny this fact is racist in and of itself.

Let's look at the very definition of racism:

rac⋅ism   /ˈreɪsɪzəm/ [rey-siz-uhm] –noun

1. a belief or doctrine that inherent differences among the various human races determine cultural or individual achievement, usually involving the idea that one's own race is superior and has the right to rule others.


Judge Sotomayor demonstrates all of this, inherent and cultural differences leading to 'better' achievements and the superiority of her race.

It is only through twisted and tortured logic that one can conclude that here statements aren't racist. Now a far better argument is that racism is inherent to all people and thus we must recognize that fact and channel it as much a possible for the good of society as a whole.

But that IS the basic argument that is being made. Do we strive for 'diversity' on the bench because society is diverse and everybody's racism must be represented in order to ensure that all particular points of view are heard. Or do we want our society to be linked by our commonalities, judged by others irrespective of our race or sex, and on our actions? Do we want the law to be blind to who we are and the judges blind to who they are when they judge cases and the law?

It is these two memes that are battling whether people recognize it or not.
6.11.2009 11:54am
David M. Nieporent (www):
Hauk: Please! "Freshmen are coerced into attending."
All of you: Please! Sexist, sexist, sexist. There are no "freshmen" any more. They're "First year students."
6.11.2009 11:58am
KevinB (www):
I like paragraph #6...
6.11.2009 12:00pm
Cato The Elder (mail):
MAM,

You know, not every minority believes in the lazy CRT pap. Somehow mathematicians have been able to discuss mathematics for centuries despite almost unbridgeable cultural gulfs between them, across centuries and geographies. But I guess since lawyers especially enjoy verbal games, including rank sophistries, they are inclined to let this type of nonsense slide even though I doubt the most able of them actually believe it. In fact, I think that though many of the most brilliant leftist professors may publicly nod their heads at those kind of statements, they would be privately outraged to actually apply those principles in their private lives to their individual learning and scholarship. I personally believe that agreement with Sotomayor's kind of logic is formed behind a condescending, status-seeking, kind of emotion, one that is content to see those zoo-like minorities cavorting in an intellectual ghetto while their white and Jewish betters flesh out the intricacies of Constitutional Law. (I did watch an admirable interview of Jeffrey Rosen on Charlie Rose attacking the bases of CRT from some time ago; for his good work, he gained my grudging respect.)
6.11.2009 12:03pm
jwhiii (mail):
As nearly as I can tell, EVERY law professor, judge, and attorney believes his judgment is superior to others'.
6.11.2009 12:06pm
Anderson (mail):
I'm not even sure she has the slightest idea of what that statement means and has never seriously thought about it.

Sure. She's obviously not nearly as bright as Prof. Zywicki. Why would she seriously think about something?
6.11.2009 12:06pm
jwhiii (mail):
A non-snarky addendum --

Nearly every analysis I've read suggests that Sotomayor is not really a radical judge, but rather middle of the road, perhaps a small degree to the left. Seems to me the Republicans would be smartest not to open up the cannonade on Sotomayor, but instead wait for a judge who truly is radical.
6.11.2009 12:08pm
Cato The Elder (mail):

Sure. She's obviously not nearly as bright as Prof. Zywicki. Why would she seriously think about something?


Because she learned law from an academy saddled with bad "studies" scholars and their collective group-think.
6.11.2009 12:10pm
M N Ralph:
Professor Zywicki, thanks for what seems like a very measured and reasonable take on Sotomayor's "wise Latina" comment. Some quick thoughts:

1. Agree
2. Agree
3. Would like to see you flesh out your thoughts on why her experience wouldn't make her a better judge. I tend to think that someone who has a more varied background and experience probably does make a better judge. Especially, when we're talking about being part of an appellate panel, having a perspective that is otherwise lacking or underrepresented on the panel is a positive. Thus, everything else being equal, her being a woman, having had a relatively poor upbringing, and being Hispanic are all positives IMHO as these experiences are either entirely or mostly lacking on the Supreme Court.
4. Agree this is not a judicial philosophy in any sense and doubt her experiences and background will make that big a difference in how she vote, but, like everyone, our background and experiences influence how we see the world. Of course, I think much better evidence for how she'll vote on the court is her hundreds of legal opinions.
5. Agree that this is likely what Obama is talking about.
6A. Agree Sotomayor's comments are fair game for questioning. Not familiar with CAP and Alito, so no comment there.
6B. Excellent question. My guess would be some combination of claimed inarticulateness, maybe a defense of her having a diverse background and experience along the lines I stated above, and a clear affirmative denial that Hispanic or female judges are somehow inherently better than white or male judges. I'm sure whatever the strategy she'll be well prepped!
7. I think the president's choice deserves some deference, but that ideology and judicial philosophy are relevant considerations for the Senate. I won't begrudge any Republican senator who votes against her because he or she in good conscience believes that Sotomayor's judicial philosophies are disqualifiable. If they filibuster her as a caucus for partisan political reasons, however, I'll be pissed and hope they reap the whirlwind.
6.11.2009 12:12pm
ShelbyC:
If you are correct that what she is saying that her experince would make her "better" than a white male judge (but not, say, a black or latino judge), I'm not sure how that would escape falling into any definition I've ever heard.
6.11.2009 12:15pm
mcbain (mail):

I wonder when people will realize that Judge Sotomayor didn't actually claim that she was a "wise Latina."


Oh man, of all the justification of that statement, this is probably the lamest.
6.11.2009 12:15pm
sham-wow:
As a practical matter, SC justices have to answer "yes" or "no" to one or more questions presented in the case they are hearing. Correct?

So, as for practical implications, does all this talk of "background" and "richness of experience" mean that the mere fact that she is Latina would force her hand one way, whereas if she was something other than Latina she would vote another way?

I know we can get into legal reasoning, scope of opinions, etc. But for practical purposes (5 votes to get a majority), is she saying that how she would answer the binary question(s) presented in a given case hinges on her status as a Latina?

What if she had grown up a wealthy, priviledged Latina instead of poor? Would her apologists feel the same about her?
6.11.2009 12:16pm
sk (mail):
"Nonetheless, it is a perfectly mainstream view in the academy and legal profession today--which I suspect accounts for how uncontroversial her statements seemed when they were uttered at places like Berkeley. Anyone who has attended a faculty workshop in the past decade at least wouldn't bat an eye when someone says something like she said."

Much of the post is disturbing-but this part is the worst.
Her statements are clearly racist. Her statements, if uttered by whites are males, would be political and professional suicide.

But the most disheartening part of the post is my quote. If her statements are essentially the norm in academia, well, academia is lost. When I was in academia 15-20 years ago, such opinions were common, and they were probably fairly widely held, but there was always enough resistance from a vocal minority (conservatives typically, but also a few principled liberals) that such views were just on the outside of mainstream. There was still enough belief in 'colorblindedness' that such a statement would have met with at least some resistance. In other words, 20 years ago the argument would have been that a latina was 'just as wise' as a white male-not 'wiser.'

If such views are so widespread in academia that they are essentially the unconscious norm, well, I guess they have won.

sk
6.11.2009 12:17pm
MAM:
Cato,

My comment was to juxtapose the poster's seeming entitlement as to what real justice is, i.e., his unabashed concept of justice -- one supposedly devoid or, at least, minimized of human experiences -- to an actual professed acknowledgment of the limitations humans have in exercising justice. Thus, when the poster blithely talks of the inappropriateness of the "wise latina" comment, he himself exposes something far worse -- not only an inability to see one's limitations, but an arrogance to boot.
6.11.2009 12:21pm
Steve:
Oh man, of all the justification of that statement, this is probably the lamest.

See what I mean? The idea of actually reading her words is unthinkable. The talking points have already set in, and "everyone knows" she considers herself to be a wise Latina who is a better judge than a white male because of her race and gender. So it goes in the land of groupthink.

Tell me, when Justice O'Connor made her comment about a wise old man and a wise old woman, do you think she was calling herself a wise old woman? Or was she simply making a point about the genders? Uh huh.
6.11.2009 12:25pm
Nelson Lund (mail):
Todd--

1) Am I right to think that your main argument depends on the assumption that someone who is merely thoughtless and conventional cannot be a racist?

2)

[T]he Federalist Papers (as I read them) pretty much have it right--the purpose of the Advise and Consent role of the Senate is to make sure that justices nominated by the President have the integrity, experience, ability, and independence to uphold the Third Branch as a coequal branch of government. As I read it, the purpose of shared authority between the President and Senate is to make sure that justices who are appointed are not cronies of the President but will act as an independent third branch.



Would you consider providing some further elaboration of this point at the end of your post? The two sentences seem inconsistent, unless not being a crony of the President implies having integrity, experience, ability, etc. I'm also wondering about the evidence for the suggestion that Publius thinks that acting as an independent third branch is the crucial qualification for sitting on the Supreme Court.
6.11.2009 12:42pm
ShelbyC:

See what I mean? The idea of actually reading her words is unthinkable. The talking points have already set in, and "everyone knows" she considers herself to be a wise Latina who is a better judge than a white male because of her race and gender. So it goes in the land of groupthink.

Tell me, when Justice O'Connor made her comment about a wise old man and a wise old woman, do you think she was calling herself a wise old woman? Or was she simply making a point about the genders? Uh huh.


It's an unpersuasive justification because no one has explained why it matters whether or not she was the "wise latina woman". A generalized statement about "wise latina women" would be just as bad, no?
6.11.2009 12:42pm
mj:
Zywicki omits one problematic analysis. When Sotomayor says her experiences make her a better judge than white males she has to use certain generalities (she cannot possibly have evaluated them all). There are several things she can believe which would logically support her claim. She can believe all white male judges have the same experiences and evaluate herself against them. She can believe white male judge experiences have no value in judging (and so her experience would be 0+x >0). Or she can believe she can understand white male experiences even though she isn't a white male.

The first two possibilites are problemmatic as they sound more than a little like "some pigs are more equal than others". The last I find uncontroversial. But if she is capable of understanding the white male experience without being one, why does she believe no white male judges can understand any experience other than their own? Thus, any explanation of her statement eventually requires her to accept that white males are incapable of something everyone else is capable of.

I suspect this may not be true of her, she has just accepted the prevailing education mantra uncritically. But someone needs to pin her and her supporters down on their rationalizations. This isn't to stop her nomination - nothing can stop that in the current environment. The purpose is twofold: (1) to use a high profile venue to show everyone the underlying prejudices of the multicultural fetishists, and (2) to get Democrats on record so the next time a non-leftist is nominated they can't use statements 3% as offensive to claim the nominee is racist.
6.11.2009 12:53pm
Anonymoose:

See what I mean? The idea of actually reading her words is unthinkable. The talking points have already set in, and "everyone knows" she considers herself to be a wise Latina who is a better judge than a white male because of her race and gender. So it goes in the land of groupthink.

Tell me, when Justice O'Connor made her comment about a wise old man and a wise old woman, do you think she was calling herself a wise old woman? Or was she simply making a point about the genders? Uh huh.


Here are the actual words:


Second, 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.


This is categorically different from what Justice O'Connor said. Even assuming arguedo that both were talking about themselves, O'Connor said that she was "as good as," not "better." O'Connor's statement is the very definition of egalitarian. Sotomayor's is exactly the opposite. Even if Sotomayor wasn't specifically referring to herself, I don't see how that helps her. She makes a blanket statement that a racial/gender group she belongs to is better than a different racial/gender group.
6.11.2009 12:54pm
mcbain (mail):

Tell me, when Justice O'Connor made her comment about a wise old man and a wise old woman, do you think she was calling herself a wise old woman? Or was she simply making a point about the genders? Uh huh.


Yes, I think that Justice O'Connor probably had herself in mind when she was talking about wise women. Do you think she considers herself a stupid old woman? an old woman of moderate intelligence? a young wise woman?

Moreover your argument is stupid because if we accept that Sotomayor was talking about generic wise latina women being better at judging than generic wise white men then the statement is racist.

At least if you say that she was talking about herself the argument could be made that THIS particular wise latina woman with her rich and creamy multicultural experience is indeed better than a wise white man without the equivalent expertise.

The argument would still be wrong in my opinion, but it would be a better argument.
6.11.2009 1:00pm
mj:
Not that it matters to the conclusion, but there is very little support for Steve's assertion anyway. She says in her opening remarks the speech is about her and how her latinaness effects her judging.
6.11.2009 1:04pm
Anon321:
First, one quibble. Judge Sotomayor's statement: "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." Note that she is saying that a wise Latina woman would more often than not reach a better conclusion than a white male. This is arguably different from saying that a wise Latina woman would be a better judge generally than a white male, and is certainly different from saying that Latinas are better generally than whites.

But, slightly more substantively, I still think most of the controversy depends on whether you read her comments to be about racial and sexual discrimination cases specifically, or about judging generally. (Do people interpret her to mean that, more often than not, a Latina judge would do a better job with a copyright or bankruptcy case than a white judge?) For example, my impression is that there is broad consensus across the political spectrum that Plessy's separate-but-equal doctrine was a bad result and that the decision in Brown was better. Is it really controversial to say that if the Justices deciding Plessy had been non-white and had experienced the evils of segregation and racism themselves, they would have been much less likely to conclude that separate-but-equal was a perfectly legitimate result? If not, and if (as it seems to me) Sotomayor's comment was about this context specifically, then the remarks are fairly uncontroversial, right?

In context, her remarks could be paraphrased as, "True, it's possible for 9 white men to get the right result in a case about racial discrimination. See Brown. But it's also possible that 9 very wise white judges could get a race discrimination case very wrong. See Plessy. If those wise judges had been Latinas, rather than white, they probably wouldn't have gotten Plessy wrong, because they would have know first-hand that the sort of segregation that existed at the time was incompatible with equality."
6.11.2009 1:13pm
glangston (mail):
What's Letterman got to say about this?

If it's a true kerfuffle he'll weigh in on it the first chance he gets. Hope he doesn't make some lame, wise-ass joke about it or criticize her sense of style.

I would just trademark this while I had the chance. Wise Latina™
6.11.2009 1:14pm
Whadonna More:
Dear White Men:

It's time to retire "if a white man said..." as an argument.

It may be a useful analytical device for equal protection and similar legal concepts, but trying to cry foul when a minority/disfavored person says something unpleasant about the majority/favored people has the intellectual depth of my 2nd grader complaining that it "isn't fair" she has to go to bed before me.

You don't have to believe that your majority status renders you unaware of some aspects of life, but you won't find a significant number of minorities who agree, including your brother white guys who spend significant time in environments where they're actually disadvantaged minorities.
6.11.2009 1:20pm
David Chesler (mail) (www):
What DennisM and ShelbyC said.

Her life experiences give her some things that contribute to her being a good judge. I don't think anybody disagrees with that. But defending her statement on that basis is ignoring that she concludes this makes her a better judge "than a white male who hasn't lived that life."

Why does she confound experiences with race and gender? As DennisM pointed out, a white male who has lived a different life has gained things from THAT life experience. Why does she cast it as a racial and gender question at all? That's an important question. I don't think the biggest difference between me and Sotomayor is that I'm a white male and she's a Latina female, it's that she's an accomplished jurist and I'm not.
6.11.2009 1:21pm
CheckEnclosed (mail):
If you look at Sotomayor's statement as suggesting that a judge who was had "outsider" status and now is an "insider" might have more perspective, or recognize more unpsoken assumptions, than one who has always been an insider, then it is not too objectionable.

I don't think her speech is anywhere close to asserting that no judge who is white, or male, could ever have had "outsider" status either.
6.11.2009 1:22pm
A. Zarkov (mail):
Zywicki:

Best (in my opinion) post yet on the "wise Latina" I've read. In particular
Nonetheless, it is a perfectly mainstream view in the academy and legal profession today--which I suspect accounts for how uncontroversial her statements seemed when they were uttered at places like Berkeley.
Exactly. One simply has to attend a dinner party at a Berkeley professor's house (as I have multiple times) to appreciate their world view and absolutely stifling intellectual conformity. You go into that world a leftist, and unless you want to remain a permanent pod person, you come out an independent.
6.11.2009 1:25pm
Cold Warrior:
Alito's CAP membership and Sotomayor's La Raza ("wise Latina") speech are about precisely the same thing: signaling.

Alito: An Italian American Catholic kid dropped in the heart of WASP privilege. Joins CAP. This says: I may appear to be the kind of swarthy interloper you've been warned about. Fear not. I have come not to destroy WASP male privilege, but to support it. Please accept my application to become a provisional member of the club.

This kind of sucking up to power was important in ascending in the Republican lawyer heirarchy of his younger years.

Sotomayor at Berkeley La Raza: I am not a Mexican American like most of you. You may doubt my La Raza credentials. As a Puerto Rican, you may not feel any particular solidarity with me. Not to worry. I am 100 percent Latina in my soul. I am one of you. I have not been co-opted by the Eastern elites I associate with.

This was important at the time. It ratified her status as a "true Latina," well-suited to receive the support of Hispanic organizations like La Raza.

Since nothing in Alito's public life (other than CAP) suggests that he is a sexist, I submit that he is not a sexist, and that my explanation is the most plausible explanation of his strange dalliance with CAP.

Since nothing in Sotomayor's public life suggests that she is a racist, I submit that my explanation is the most plausible explanation for her silly comments before La Raza.

Dot
6.11.2009 1:26pm
bb (mail):
I think a finer distinction should be made between what the experience of race, or being in a minority group, can bring to a person's judgment in this country, versus what racism/sexism is. it is very different living as a majority group, vs a minority group, regardless of whatever the specific packaging is that makes one or the other.

sotomayor is not racist, neither are her comments. and she did not misspeak, but she did speak in a particular context. she is a product of her experiences, which include being a latina/minority in america, and i took it to mean that she brings that perspective *as well*, not to the exclusion of other factors or experiences that inform good judgment.

if she had made the comment in reference to say, class, and not race, perhaps that would have been less controversial.

tell me: does her record from the bench show undue deference to race or gender affecting her judgment?
6.11.2009 1:27pm
Houston Lawyer:
Yes we all know that racist and sexist statements by lefties are all good and prove the honor and learning of those who espouse them. Similar statements from the right are signs of serious moral delinquency. Most of us are tired of racial grievance mongering, regardless of the source. Sotomayor and her ilk should be subject to the same level of disdain as David Duke and his.
6.11.2009 1:29pm
Roger Schlafly (www):
Are you objecting to the negative characterization of CAP, which seems fairly accurate based on the linked article, or to the idea that Alito must necessarily have shared its views, just because he joined?
The article doesn't say much about CAP's actual positions. Instead it attacks CAP's image, and the opinion of some people who were associated with CAP. It gives a very wrong view of CAP.

Alito was just a member. At least Sotomayor is being held accountable for what she actually said, and not being held accountable for the image portray by people who just happened to belong to some group where she was a member 30 years ago.
6.11.2009 1:31pm
Floridan:
"The idea that one's life experience matters to judging is exactly what President Obama had in mind when he suggested that "empathy" is an important attribute of a judge. The view is quite mainstream in their legal circles, from what I can tell, and even though I disagree with it . . . "

I don't see how even a cursory reading of the Supreme Court's history could lead to any other conclusion than that life experiences influence how individual justices views the facts at hand.
6.11.2009 1:34pm
mcbain (mail):

trying to cry foul when a minority/disfavored person says something unpleasant about the majority/favored people has the intellectual depth of my 2nd grader complaining that it "isn't fair" she has to go to bed before me.


Gotcha, "its okay to be racist, cause white people did it first" line of reasoning is way more mature.
6.11.2009 1:38pm
Cato The Elder (mail):
Here is a concrete example of the failures of the "privilege" as a rigorous analytical term. Judge Sotomayor apparently believes that aptitude tests and IQ tests are "culturally biased", as a result of her relatively poorer scores on them compared to her Yale and Princeton classmates when contrasted to her an enviable position today. This is a belief that can be concretely investigated by humanity's most objective Judge, empirical science.

What does the summary of the evidence garnered by studies say? James Flynn, of the famous Flynn effect, who also approaches these questions from a left-liberal ideological perspective, says in the book, Race, IQ and Jensen, "the claim that the tests are culturally biased is more complex, but now at last it can be rejected on the basis of overwhelming evidence." (p.42, my emphasis) Linda Gottfredson, someone who approaches the issue differently than he does, concurs, saying, "there is no evidence of cultural bias in the major tests against blacks in the major standardized tests of mental ability..."(Wigdor &Gardner, 1982a, 1982b) Meta-analysis upon meta-analysis time and time again come to the same conclusions.

Regardless of what you think about the applicability or importance or malleability of the tests Sotomayor has issue with, she is WRONG on this question. Full stop WRONG. There is no controversy amongst legitimate academics in the field about the incorrectness of her thesis. As a result of these wrong conclusions, probably enforced by her documented successes at Princeton and YLS, it is easily imaginable how the entirety of those "life experiences", even notwithstanding her lack of "privilege", brought her to a worse decision in a race-salient case, such as the Ricci case, as opposed to less invested white male.

Plenty of other examples abound even in the historically oppressed black population. Blacks believe all sorts of factually incorrect conspiracy theories about AIDS and the crack epidemic. Even now, the "driving while black" meme is a persistent one in our cultural discourse, but it was proven false in a major study that tried to prove it empirically. I quote the ever-vigilant A. Zarkov:

The New Jersey Turnpike matter provides a good example. To refute the false claim that the police stopped black drivers for speeding more often than white drivers out of prejudice alone, a carefully controlled set of measurements was taken. It turns out that on the New Jersey Turnpike blacks do speed more often than non-blacks. The DOJ did its best to find flaws with the study, but couldn't. DOJ even tried to suppress the results of the study, but the Bergen Record leaked the report.

Even if I grant for the sake of argument that ideas like "socioeconomic privilege" and "racial privilege" do exist, it is hardly obvious that these are well-ordered sets. For example, apparently one can earn tenure and a comfortable living in esteemed universities publishing unrigorous theories in "studies" fields like African-American Studies, and not only will other academics not chastise you for the lax standards present therein, they will laud and elevate you for them. George W. Bush, the man who everyone loves to hate, couldn't freely indulge himself in the habits of youth as he wished, but instead was groomed to follow in the footsteps of his prominent political family. I faced no similar burden of accomplishment growing up in my relatively poor childhood. Yet are these not concrete examples of the "privilege" of both being poor and Black? It's a pure laziness not to recognize the truth of matter: disparate cultural life experiences bring both insights and biases, and it is not prima facie obvious in any individual which one dominates the other.
6.11.2009 1:39pm
Guest056 (mail):
On another thread, I went into lots of detail about the ways in which I find this quote actually controversial. She was, after all, disagreeing in part with O'Connor, who equated women and men in a fashion meant deliberately to snuff out these sorts of gender comparisons. Sotomayor reiginted that particular flame and added a racial component.

Yet what does Zywicki add in his reading? Mostly, he uses it as an occassion to deride the liberal campus culture on colleges and engage in various ad hominem assumptions. (Sorry, Mr. Nieporent, but if I were to say you were parroting an intellectually embarrassing statement in a lightweight fashion, and that you found it profound after hearing it third hand -- all unsupported assertions about the quality and independence of Sotomayor's thinking -- I would be clearly insulting your intelligence and reflective capacity. Zywicki is calling her thoughtless and unreflective in this matter. He's denying that she really understands the derivation and meaning of her own words, all without any evidence of that. Classic veiled ad hominem.)

Given that, and given the assertions I've outlined above, there's no need to entertain Mr. Zywicki's unsupported condescensions. There's no need to respond in kind, either, so I suppose that about winds it up.
6.11.2009 1:40pm
A. Zarkov (mail):
"Her life experiences give her some things that contribute to her being a good judge. I don't think anybody disagrees with that."

I disagree at least to the extent that "life experience" means growing up in the Bronx in the 1950s as the daughter of Puerto Rican immigrants. Just what is qualifying about that experience? Having your husband beat you up? Watching your teenage boys join gangs? Dropping out of school early? Sotomayor became successful by rejecting that culture.

Now Sotomayor would have us believe that she as the daughter of Puerto Ricans was victimized, and being a victim makes one a better judge. But if she was somehow a "victim," who victimized her? Most likely other Puerto Ricans. Who else was in the Bronx at that time? Lower middle class Jews and Italians. Did the Jews victimize her? Ha. Many Jews tutored their fellow Puerto Rican students in many subjects including-- high school Spanish!

Now if Sotomayor had simply said, "I learned a lot from the school of hard knocks," we could all accept and applaud that idea. But no she has to play the race card.
6.11.2009 1:42pm
CJColucci:
Cold Warrior, I'd accuse you of spoiling all the fun -- except that no one who wants to play this silly game will listen to you.
6.11.2009 1:47pm
Dan28 (mail):
I'm not even sure that Zywicki has the slightest understanding of the post he wrote and has never really thought about it. It sounds like he's just parroting the kind of right-wing groupthink that you see in conservative academic circles.
6.11.2009 1:48pm
pluribus:
I do find this post surprising, puzzling, and disturbing. I started to make a list of the condescending, demeaning words and phrases used in it and quickly became overwhelmed by then: a "silly idea," "uttered at places like Berkeley," "lowbrow legal realism," "parroting something," "the sort of thing that sounds like a sophomore philosophy student, "lightweight and intellectually unserious," "just a lawyer/judge who picked up some third-hand redition of the idea and decided it sounded profound." Do you think that comments like this make you sound highbrow, or serious, or more advanced than a sophomore, or somehow original? And, really, using Berkely as a strawman should be beyond the pale. I'm a Berkely graduate and have stated here that I found Sotomayor's "wise Latin" statement awful and that I want to hear her explain it at her hearing. I am willing to wait, however, for her hearing before casting her aside. Does the fact that I graduated from Berkeley automatically render my opinion worthless?. And then you finish this diatribe by saying "none of this should really matter." Why not? Because it's really just a worthless trope uttered from an intellectually biased perspective? I can't think of any other persuasive reason.
6.11.2009 1:50pm
ShelbyC:
Whadonna More:

It may be a useful analytical device for equal protection and similar legal concepts, but trying to cry foul when a minority/disfavored person says something unpleasant about the majority/favored people has the intellectual depth of my 2nd grader complaining that it "isn't fair" she has to go to bed before me.


Ignoring your "intellectual depth of my 2nd grader" comment, I dissagree that it's not a usefull exercise. Sometimes changing perspective is a great way of seeing things from another perspective. And it's a completely mainstream viewpoint among both minorities and others outside of acedemia that all folks should be held to the same standards. Hell, are't white makes minorities anyway?
6.11.2009 1:57pm
Tony Tutins (mail):

Her statements are clearly racist. Her statements, if uttered by whites are males, would be political and professional suicide.

Her statements are clearly factual. Had white males uttered them, they would merely appear to be idiots.

It's easier for a man to make it in a man's world than for a woman, even in such unmacho worlds as university English departments, much less the macho, ego-driven legal world. Sotomayor was a woman who succeeded in a man's world.

Further, Sotomayor entered a legal world dominated by whites. Puerto Ricans were not hired even as secretaries. They might be the ladies who emptied your wastebaskets. Sotomayor was a Hispanic who succeeded in a white world.

Coming in as an outsider gave her experiences that a white male could never have had. Substituting "white male" for Latina merely makes the speaker sound idiotic, because no white male could have been an outsider to the extent that Sotomayor was.

Compare baseball managers. They were seldom those who naturally excelled at the game. They were students of the game who knew how to make the most of their talent. They were in that sense outsiders, who didn't belong. And their experience made them better managers than the stars who did belong.

But, implicit in her success is her ability to see the world from a white, male perspective. She would not have gotten to her current position unless she could relate to the white males who dominated her environment, because you have to be able to fit in to succeed. Therefore she carries three perspectives with her: white male, female, and Hispanic. Being able to look at the world from different perspectives (the much-feared empathy) makes you a better judge. Yes: part of empathy is being able to see things from the white male perspective.

Now that we've been able to find the logical basis for her assertion, we can ask why she repeated it: because it got applause. It was a winner. Women liked to hear it, and Hispanics liked to hear it.
6.11.2009 1:58pm
richard1 (mail):
From Cato the Elder:
Plenty of other examples abound even in the historically oppressed black population. Blacks believe all sorts of factually incorrect conspiracy theories about AIDS and the crack epidemic. Even now, the "driving while black" meme is a persistent one in our cultural discourse, but it was proven false in a major study that tried to prove it empirically. I quote the ever-vigilant A. Zarkov:

Quoting ONE study on stops for speeding to support a thesis that racial prejudice no longer exists and that blacks don't get stopped much more than whites for police questioning is just stupid. How about go driving (as I have done) with a African-American associate at the wheel in Beverly Hills. This associate was tall, handsome, well dressed and well spoken and he was driving a BMW. We were pulled over for questioning about a robbery that occurred in the area. After I made it clear to the cop that we were lawyers on the way to a deposition, we were let go but I have been driving in the Beverly Hills area for over 40 years and have never, ever been stopped for any reason whatsoever. You think it's a coincidence that this African-American was stopped? Nonsense.
6.11.2009 1:59pm
Cato The Elder (mail):

I'm a Berkely graduate and have stated here that I found Sotomayor's "wise Latin" statement awful and that I want to hear her explain it at her hearing. I am willing to wait, however, for her hearing before casting her aside. Does the fact that I graduated from Berkeley automatically render my opinion worthless?.


Pluribus,

If Sotomayor is in fact correct, your kind of righteous indignation is exactly the reason why people tend to fly off hyperbolic whenever the discussion is brought up. Zywicki was talking about a sort of group statistic, not specifying about the beliefs of individuals like yourself. I'm sure that there are perfectly reasonable people who have graduated from Berkeley, and others who will continue to do so. But are you suggesting there isn't a differential in the acceptability of that statement that ranges between say, Liberty University to GMU to Stanford to Berkeley? No, I think not, because that would be patently ridiculous. This inability to distinguish between group and individual is what actually hurts the racial discussions in this country.
6.11.2009 1:59pm
Anderson (mail):
Daniel Larison, linked above, has been appalled by the eagerness of "conservatives" to embrace political correctness at the expense of denying that cultural backgrounds *can* be valuable assets and that pride in one's racial heritage *should* be accepted.

It's always interesting to read what thoughtful conservatives think.
6.11.2009 2:00pm
24AheadDotCom (mail) (www):
I think it's time to take the ball away from the leaders of the opposition to BHO, because it's clear they have no spirit or skill.

The way to block her is to turn public opinion against her. Since only a very small % of Americans support AffAction, highlight that. Such as by sending this article to everyone you know.

Also, point out that for six years she a member of a group that gave an award to someone who'd proposed genocide.
6.11.2009 2:01pm
Cato The Elder (mail):
Richard1,

The aphorism, "the plural of anecdote is not data", is technically false, but practically true. There are other popular memes, for example about felonious incarceration rates, that have been similarly decimated by rigorous study, if only people would pay attention to them.
6.11.2009 2:03pm
David Welker (www):

Frankly, I find it to be sort of an intellectually embarrassing statement for someone of her education and distinction to hold.


Frankly, I find your views in general to be intellectually embarrassing. Especially since it is quite clear that you have totally failed to read this statement in appropriate context. But in general, someone of your pathetic intellectual stature probably should not be insulting the intelligence of others. I have always thought you were one of the least impressive conspirators here at VC. I don't remember one time where you have stated an argument that I did not find totally predictable.
6.11.2009 2:10pm
ShelbyC:

Sotomayor entered a legal world dominated by whites. Puerto Ricans were not hired even as secretaries. They might be the ladies who emptied your wastebaskets. Sotomayor was a Hispanic who succeeded in a white world.

Coming in as an outsider gave her experiences that a white male could never have had. Substituting "white male" for Latina merely makes the speaker sound idiotic, because no white male could have been an outsider to the extent that Sotomayor was.


Well, I've gone to foreign countries and succeed at things there, as an outsider. And you're right, I would have sounded idiotic saying I was "better" at anyting than the local folks because I was an outsider. If a white male went to, say, Japan, and became a judge, and then said, "I would hope that a wise American, with the richness of his experience, would more often than not make better decisions than a Japanese judge who hasn't lived that life" he would sound idiotic as well.
6.11.2009 2:12pm
Tony Tutins (mail):

even notwithstanding her lack of "privilege", brought her to a worse decision in a race-salient case, such as the Ricci case, as opposed to less invested white male.

Sotomayor made a worse decision than Judge Sack, a white male? They made the same decision in Ricci. Further, Judge Sotomayor made the same decision as white female Judges Arterton and Pooler. To first order, I don't see any gender or race related effects.

Regardless of what you think about the applicability or importance or malleability of the tests Sotomayor has issue with, she is WRONG on this question.

Sotomayor is WRONG on the cause, but not on the difference. What does an IQ test measure? The ability to take IQ tests. The linked article explains the training effect that boosts IQ scores. Are people really getting significantly smarter? I haven't seen any evidence of that. I'm prepared to believe that the housing project dwelling daughter of foreign-language speaking immigrants might score lower on an IQ test than a white kid who did not have her life's experiences.
6.11.2009 2:13pm
Tony Tutins (mail):

Well, I've gone to foreign countries and succeed at things there, as an outsider.

Did you become a judge of the second instance? Then very likely your experience did let you come to better decisions than a native who lacked your experiences.
6.11.2009 2:16pm
FWB (mail):
We do NOT have nor have we EVER had coequal branches of government, in terms of power. A quick perusal of the powers of each branch proves this point beyond any shadow of doubt.

"Tír gan teanga, tír gan anam"
6.11.2009 2:18pm
mcbain (mail):

cultural backgrounds *can* be valuable assets and that pride in one's racial heritage *should* be accepted.


I'm not thoughtful, or a concervative but the above statement is categorically true. Cultural backgrounds, talking about them, eating them, wearing them to work, are all great.

It is a shame though that Sotomayor did not say it that way. What rubs people the wrong way is not that she is a Latina who thinks highly of herself, its that she is a Latina said that her cultural experience is superior to the cultural experience of others. Which is NOT categorically true.
6.11.2009 2:19pm
ShelbyC:

Did you become a judge of the second instance? Then very likely your experience did let you come to better decisions than a native who lacked your experiences


And If I had, they would have? As in the Japan example?
6.11.2009 2:20pm
A. Zarkov (mail):
richard1:

"You think it's a coincidence that this African-American was stopped? Nonsense."

I don't think it was a coincidence. Unfortunately this does happen, but let's face it, the police are more prone to stop blacks in such situations because of the high crime rate among blacks. It is a form of profiling, but profiling in this context means being a rational classifier. When you want to find something you look in the place it's most probably at.
6.11.2009 2:21pm
pluribus:

I'm sure that there are perfectly reasonable people who have graduated from Berkeley, and others who will continue to do so. But are you suggesting there isn't a differential in the acceptability of that statement that ranges between say, Liberty University to GMU to Stanford to Berkeley?

How very generous of you. What does the reference to Berkeley add to this discussion except an effort to poison the well among self-professed conservatives? (God, why do people like this call themselves conservatives? Burke must be turning over in his grave.) It must have been a stupid, biased, ill-considered, reverse-racist statement because it was made at Berkeley. What greater proof do you need? But the place-reference is merely symptomatic of the over-all ad hominem character of the post.
6.11.2009 2:23pm
mj:
Anon 321:

"Is it really controversial to say that if the Justices deciding Plessy had been non-white and had experienced the evils of segregation and racism themselves, they would have been much less likely to conclude that separate-but-equal was a perfectly legitimate result?"

Probably not. But since white male judges today wouldn't support Plessy your comparison of those men to today's white male judges fails. Society has reformed itself to take the rights of all individuals into account. Why would we think white male judges were somehow left behind?
6.11.2009 2:25pm
pluribus:
mcbain:

What rubs people the wrong way is not that she is a Latina who thinks highly of herself, its that she is a Latina said that her cultural experience is superior to the cultural experience of others. Which is NOT categorically true.

Actually, she didn't say that, as has been demonstrated many times on this board. But I suppose it pleases you to think she did say it. Why don't you look at what she actually did say, and then wait until her confirmation hearing, when she will explain what she actually meant by what she actually said--not by what people who want her nomination to fail say she said. That will be time enough to throw her aside, if you believe that's what she deserves.
6.11.2009 2:29pm
ShelbyC:

Did you become a judge of the second instance? Then very likely your experience did let you come to better decisions than a native who lacked your experiences


Sorry, misunderstood your response.

You don't think its possible for people that you don't consider "outsiders" to have experiences that can allow them to be just as good judges as "outsiders"? That's certainly an interesting proposition, and I'd like to hear more to defend it. For example, could someone that lived for 10 years in, say, Botswana before coming back to the U.S. be a better judge than a wise Latina woman due to his experience?
6.11.2009 2:30pm
MAM:
Zarkov condones making all blacks pay the price for the wrongs of a subset of blacks. It is "unfortunate".It reads like an opinon of Roberts, Scalia or Thomas. In some ways, it's similar to the decisons of yester-year -- condemning all blacks based on a host of reasons -- many of which are a direct result of white supremacy.

It's only rational for black people to be stopped, interrogated, frisked etc. in such areas

Another case and point regarding white supremacy and lack of diversity on the Court
6.11.2009 2:30pm
Tony Tutins (mail):

Also, point out that for six years she a member of a group that gave an award to someone who'd proposed genocide.

Yes, as a 25 year old firebrand, he talked to reporters about having to kill the gringo. That didn't keep him from becoming a county judge in Texas five years later.

But worse than that -- a mere five years later than the award to Professor Gutierrez, NCLR gave an award to John Sidney McCain:

"It is a great pleasure and honor for NCLR to recognize Senator John McCain, a longtime friend of the Hispanic community. Throughout his tenure in both the House and

Senate, John McCain has been a strong voice for compassion, fairness, and inclusion in his party," noted Raul Yzaguirre, NCLR President.


An organization that supports compassion, fairness and inclusion -- hard to imagine anything worse than that.
6.11.2009 2:33pm
pluribus:
mj:

But since white male judges today wouldn't support Plessy your comparison of those men to today's white male judges fails.

No, it doesn't. The operative time is when Plessy was decided. At that time, it would have been helpful to have somebody on the Court who understood how segregation actually affected black Americans. In fact, there was one such judge--a white Republican from Kentucky named John Marshall Harlan, who dissented from the decision in Plessy, and thereby earned a firm place in the judicial history of this country. If Harlan had had a black colleague or two, perhaps his opinion would have been a majority opinion instead of a dissent. But he didn't, and it wasn't.
6.11.2009 2:34pm
Cato The Elder (mail):

It must have been a stupid, biased, ill-considered, reverse-racist statement because it was made at Berkeley. What greater proof do you need?


Uh, ok, let's choose the University of Michigan, Ann-Arbor, as our academic locale of choice if that makes you feel better. Further, we can break down the logic behind Zywicki's steps to more easily discern whether his conclusion is acceptable:

1. Group-think is an observable phenomenon, seen when people of the same ideological stripe congregate and discuss issues. It can lead to the uncritical acceptance of favored theories.

2. Universities like UMich Ann-Arbor are more amenable than others to "critical" theories of Law, because they employ many academics who make it a point to examine ideas from a racial perspective.

3. The statement is a reverse-racist statement. Zywicki did not actually say that, mind you, he said it was an unserious and biased statement, and I tried my hand at proving those weaknesses in an above post.

Now, if you want to dispute any of these beaded strings of logic, or call into question the whole chain, perhaps we can more civilly discuss these things?
6.11.2009 2:35pm
Tony Tutins (mail):

You don't think its possible for people that you don't consider "outsiders" to have experiences that can allow them to be just as good judges as "outsiders"?

Probably not impossible, but not characteristic of the average insider. It would take a special set of circumstances.
6.11.2009 2:41pm
A. Zarkov (mail):
Tony Tutins:

"What does an IQ test measure? The ability to take IQ tests."

That's certainly true, but the tests are also predictive of success in cognitively demanding tasks. If we gave an IQ test to all the members of the mathematics department at Cal Tech, do you think even one of them would score below 130? Scoring high might not be sufficient for success, but it's certainly necessary.

"The linked article explains the training effect that boosts IQ scores."

I don't see a link, but I suspect you mean the Flynn Effect. This effect is puzzling and has not been satisfactory explained by anyone including Flynn himself. It probably has to do with environmental effects in the large. Everyone agrees that general intelligence is not 100% genetic. We do argue over whether the heritability coefficient is .5 or .8. So it's possible that the extra stimulation of modern life is raising the average IQ. We should also note that the one standard deviation black-white difference has remained approximately constant over the last 8 decades. Thus the Flynn Effect seems to raise all boats. Nevertheless I don't think we can simply throw away the field of differential psychology on the basis of the Flynn Effect. There are difference between humans and we can measure them.
6.11.2009 2:44pm
Ken Arromdee:
But, slightly more substantively, I still think most of the controversy depends on whether you read her comments to be about racial and sexual discrimination cases specifically, or about judging generally. (Do people interpret her to mean that, more often than not, a Latina judge would do a better job with a copyright or bankruptcy case than a white judge?)

I'd go with an interpretation somewhere between these: she thinks she'd be a better judge in discrimination cases, but she may be prone to calling things discrimination cases that I wouldn't. It's not hard to squeeze some connection to discrimination out of copyright or bankruptcy cases.
6.11.2009 2:46pm
ShelbyC:

Probably not impossible, but not characteristic of the average insider. It would take a special set of circumstances.


I dont' know how special. There all all sorts of experiences that might be helpful in being a judge. Comming to the country as a foreigner, being raised by parents with a liberal arts background, being raised by parents with a scientific background, serving in the military, serving in the peace corps, being in an interacial marriage, having done a study abroad, having worked abroad, having worked in a factory, having worked at McDonalds, etc.

To take one's "cultural experience" and to compare that favorably against a generalization of another race's "experience" seems to by the type of generalizing we just spent years learning to avoid.
6.11.2009 2:53pm
Bill Johnson (mail):
Sotomayor's remark is racist unless she can prove that a white man can live such that he, too, has the same background. The word 'latina' in her paragraph inhibits such proof.

Nice try, using background instead of 'race'. Try again.
6.11.2009 2:55pm
DennisN (mail):
Whadonna More:

trying to cry foul when a minority/disfavored person says something unpleasant about the majority/favored people has the intellectual depth of my 2nd grader complaining that it "isn't fair" she has to go to bed before me.


Nonsense.

Racism either matters or it does not.

The same rules apply across both sides of the equation. To say otherwise is to take a racist position.
6.11.2009 2:56pm
Anon321:
On the subject of the persistence of racism and the validity of the belief that cops sometimes still hold (and act on) racist views, please read Judge Easterbrook's recent opinion in U.S. v. Bartlett. Very disturbing stuff.
6.11.2009 2:57pm
David Hardy (mail) (www):
The context is interesting. I'd have no problem with the concept that a judge's breadth of experience is a big plus ... to contrast what was said of a judge here, "the closest he's ever been to disorderly conduct is when someone bounced a golf ball off his windshield at the driving range." And I think we would benefit if the persons drafting sentencing guidelines were required to get a better idea of what they were doling out via an initiation that consisted of spending a week or so behind bars.

I do find it a bit disturbing that she felt she had to pull up, as the example of the person whose experience is limited to his narrow, presumably privileged, and upper-level social class, a hypothetical "white" male.
6.11.2009 2:57pm
Losantiville:
The quality of being Hispanic is neither a race nor an ethnicity it is a language group.

According to the Census 91% of Hispanics define their race as White. Alberto Fujimori was Hispanic though Japanese.

And obviously Benjamin Cardozo was the first Hispanic Supreme Court Justice and David Glasgow Farragut was the first Hispanic (or any other kind of) Rear Admiral/Vice Admiral/Admiral of the US Navy.

I wonder how Ms Greater Grove's English is? That would be an important consideration when hiring a woman defined by her language as a judge.
6.11.2009 3:04pm
Cato The Elder (mail):

Sotomayor is WRONG on the cause, but not on the difference. What does an IQ test measure? The ability to take IQ tests. The linked article explains the training effect that boosts IQ scores. Are people really getting significantly smarter? I haven't seen any evidence of that. I'm prepared to believe that the housing project dwelling daughter of foreign-language speaking immigrants might score lower on an IQ test than a white kid who did not have her life's experiences.


That is all very interesting, but those were not the legal questions in front of Sotomayor in the Ricci case, no matter which way you feel the evidence points on other, ancillary, questions. "Your Honor, we have no basis on which to challenge the fairness or validities of these tests, or the job-relatedness of the tests." The question in front her in the case was, did the New Haven Fire Department discriminate against the white fighters by throwing out their tests? The respondents argued, "No", supposedly because they claimed they feared a disparate impact lawsuit under Title VII. Putting aside the unmet conditions for summary judgment, which ask whether or not 1) there are issues of "material" fact to be argued in trial, and whether 2) the result of the judgment would be a straightforward application of the law to those facts, are you seriously arguing that Sotomayor's pre-existing beliefs on the cultural validity of aptitude or knowledge tests would not bias her interpretation of the reasonableness of New Haven's actions in trying to avoid a disparate impact lawsuit? If she thought that any kind of test was "culturally biased", well, obviously she wouldn't very rigorously examine those actions, as we wouldn't very full-heartedly challenge the property damage caused by someone of someone running from his life from a giant crocodile, since we can all empathize with an abject fear that most of us have experienced at one point in our lives.

Indeed, her words betray her:

"We’re not suggesting that unqualified people be hired, the city’s not suggesting that...”

Now you can make the argument that reasonable people can disagree about cultural bias in aptitude testing. It wouldn't fly amongst psychometricians or the APA for that matter, and shouldn't amongst elite federal judges, but you can make that argument. What it is ludicrous to argue is that Sotomayor's statements don't suggest that she is biased one or the other way in discerning the neutral truth of that statement.
6.11.2009 3:13pm
pluribus:
Cato The Elder:

Now, if you want to dispute any of these beaded strings of logic, or call into question the whole chain, perhaps we can more civilly discuss these things?

Why don't you just make a stab at discussing these things more civilly, instead of just calling my civility into question (something I did not do to you)? That is, assuming that civility is really one of your values, and not just a word with which to insult others.
6.11.2009 3:17pm
whit:

I don't think it was a coincidence. Unfortunately this does happen, but let's face it, the police are more prone to stop blacks in such situations because of the high crime rate among blacks. It is a form of profiling, but profiling in this context means being a rational classifier. When you want to find something you look in the place it's most probably at.



studies have shown that cops stop black males at roughly the same rate as they commit (per VICTIMIZATION studies) crimes.

do they disproportionately stop black males vs. their representation in the population?

yes.

they also disproportionately stop males in general vs. women, young people vs. old people, etc.

they also stop japanese americans (a more law abiding group than whites or blacks on average) LESS often.

if they were racist, it's hard to believe they are biased against whites in favor of japanese americans.

it is not surprising at all that people who disproportionately commit crimes are stopped for suspicion of crime, at a disproportionate rate.

and it certainly depends on the type of crime and area, of course.

at one point i worked an area where meth was a big problem ( was on the drug squad). i never even SAW a black person in, around, or associated with meth. in 3 yrs. not one. not once, even though i saw the inside of probably 3 dozen labs. it's disproportionately a "white trash" drug.

if cops DIDN'T stop people at roughly the rate they committed offenses, that would at least be suggestive of racism.

since they stop members of different groups at roughly the same rate those groups commit offenses AS REMARKED BY VICTIMS OF CRIME, it's pretty clear that cops are simply going where the crime is, and stopping people more likely to be criminals
6.11.2009 3:18pm
Cato The Elder (mail):
Let me correct that horribly garbled sentence in my previous post: "..someone running for his life from a giant crocodile..." I was obviously too frightened to type correctly in my fevered imaginings...;-)
6.11.2009 3:22pm
A. Zarkov (mail):
Despite her abrasive personality, and poorly phrased public and private remarks, I don't think Sotomayor is a particularity bad choice in terms of what we can expect from Obama. I listened to the recording of the Ricci case hearing, and while not particularly brilliant, her questions were reasonable. She was equally abrasive to both sides, and did not come across as particularly biased against white men. I think we will get much worse than her from Obama in the future. In fact if her nomination should somehow fail, we will get worse.

I do find her membership in La Raza troubling. This organization was founded by Juan Jose Gutierrez. He has allegedly made some very extreme comments. Here are a few he allegedly made.

1. At the 1997 Southwest Voter Registration Education Project meeting, where Antonio Villaraigosa was present, his good friend Jose Angel Gutierrez said "we have an aging white America, they are dying, I love it!"

2. "California is going to be a Hispanic state and anyone who doesn't like it should leave"

3. Asked by Ray Briem if he thought that the statement was racist, Obledo said "No, because that's a reality. California is going to be inhabited mostly by Hispanics... saying further "Well, if they (Anglos) don't like Mexicans they ought to leave. They ought to go back to Europe."

4. "Our devil has pale skin and blue eyes," and who once said at a MAYA (Mexican American Youth Organization, the forerunner to MEChA) meeting, "To the gringos in the audience, I have one final message to convey, 'Up yours, baby. You've had it, from now on.' "

These comments come from this website. I don't know if he actually said these things (we need vetting on this) but I have seen him on TV and he came across as an extremist who is quite capable of making such comments.

The University of Texas News Center quotes Gutierrez in an interview:
Reporter: What was meant by the phrase eliminate the gringos in the MAYO statement?

Gutierrez: You can eliminate an individual in various ways. You can certainly kill him, but that is not our intent at the moment. You can remove the basis of support that he operates from, be it economic, political, or social. That is what we intend to do.

Reporter: If nothing else works you are going to kill all the gringos?

Gutierrez: We will have to find out if nothing else will work.
If Gutierrez was a founder of La Raza (The Race) and the organization in any way subscribes to these viewpoints then Sotomayor should be disqualified. This is simply a Mexican verision of the KKK.
6.11.2009 3:22pm
Willie (mail):
I haven't seen any discussion on any front that notes that the Sotomayor wise-latina statement does not compare a wise latina to a wise white male. The statement factoring out "latina" and "white male" leaves the comparison between somebody who is wise and somebody who is not. The racial overtones then could take on various meanings. For example, the statement could be saying that a wise latina (is latina woman redundant?) would be a better judge than a crony-appointed white male because the former is wise and the other is not. I doubt that the judge would want to take this argument straight up, though.
6.11.2009 3:24pm
Cato The Elder (mail):
OK, pluribus, I seriously did not understand Zywicki's comment about Berkeley to be a "whistle" towards conservatives, and I really do feel that I am fair about assessing those type of things. I think he was just trying to provide a salient example of a forum where those CRT ideas would be uncritically accepted. Conservatives can get similarly uncritical when discussing "pro-family" policy within their own cloisters and libertarians also when discussing market failures or Austrian economics.
6.11.2009 3:28pm
mcbain (mail):

Actually, she didn't say that, as has been demonstrated many times on this board.


Well I don't think that was very satisfactorily demonstrated since we are still discussing this. But if it has an I missed it, please provide an alternative explanation of her remarks that does not involve her cultural superiority.


That will be time enough to throw her aside, if you believe that's what she deserves.


No acctually I'm pretty happy with her nomination so far. She is a generic liberal, I thought that Obama was going to nominate someone with a little more froth at the mouth.
6.11.2009 3:32pm
24AheadDotCom (mail) (www):
1. Please everyone see my NCLR summary before talking about that group. I've got over 150 posts about them since 2004, all summarized at the link. BHO opponents should pay special note to the warning at the end, something that's been there for months. Confusing the NCLR with other groups that have similar ideas is counter-productive. For instance, the NCLR wasn't started by J.A.G. He started a party with a similar name. They aren't the same organization. Saying they're the same only weakens the very strong case against the NCLR.

2. Regarding Tony Tutins' defense of J.A.G., everyone should see this and the other pages linked above. As "a 25 year old firebrand", J.A.G. proposed genocide against "gringos". Then, as a fifty-something firebrand, he said this:

...We are millions. We just have to survive. We have an aging white America. They are not making babies. They are dying. It's a matter of time. The explosion is in our population...


He supposedly add, "they're sh*tting their pants with fear", but the quote above is bad enough.

And, Tony Tutins is one of his defenders.
6.11.2009 3:44pm
24AheadDotCom (mail) (www):
P.S. The J.A.G. referenced in my comment above received the NCLR's "Hero" award in 1994. That's four years before SS joined that group. The "they are dying" quote above was made the year after he got the award. The NCLR has not as far as I know attempted to take the award away from him.
6.11.2009 3:49pm
Tony Tutins (mail):

I do find her membership in La Raza troubling. This organization was founded by Juan Jose Gutierrez.

You may be troubled no longer once you realize:

1. Sotomayor's no longer a member
2. NCLR was not founded by anyone named Gutierrez
3. That's not Professor Gutierrez's name.
6.11.2009 3:55pm
Tony Tutins (mail):

Tony Tutins is one of his defenders

I was not aware of your second quote.

But in general, people grow and change. Congressman Bobby Rush is not the same as Black Panther Bobby Rush. The campus radicals of the 60s got their hair cut, put on coats and ties, and settled into the real world.
6.11.2009 3:58pm
gerbilsbite:
Losantiville:
"obviously Benjamin Cardozo was the first Hispanic Supreme Court Justice"


I don't think that holds up if you're defining "Hispanic" as a language group, since his ancestry wasn't from Spain but rather from Portugal, which is obviously a different linguistic animal.
6.11.2009 3:59pm
A. Zarkov (mail):
24AheadDotCom:

"For instance, the NCLR wasn't started by J.A.G. He started a party with a similar name."

Thanks. That's a useful piece of information. You should note that I wrote, "If Gutierrez was a founder of La Raza..." anticipating that his founding of NCLR (La Raza) might be misinformation. I made the comment to flush out more information and you did just that.

All that being said, La Raza's award to Gutierrez is bad enough to condemn them and Sotomayor for being a member of NCLR. I'm afraid I now have to reverse myself and oppose her nomination. Your web page provides what looks like devastating information about her associations. She is in for some rough questioning unless the Republicans engage in their usual poltroonish behavior. I have no confidence in them as an opposition force to danger we face from Obama.
6.11.2009 4:04pm
Tony Tutins (mail):

At the 1997 Southwest Voter Registration Education Project meeting, where Antonio Villaraigosa was present, his good friend Jose Angel Gutierrez said "we have an aging white America, they are dying, I love it!"

In trying to track down this quote, I am calmed by the discovery that the Southwest Voter Registration Education Project has an annual golf tournament. Race-motivated terrorists seldom fund their operations through charity golf tournaments.

Also, I don't think that the election of Antonio Villaraigosa as LA's mayor marked the start of the reconquista.
6.11.2009 4:06pm
A. Zarkov (mail):
Tony Tutins:

"You may be troubled no longer once you realize:

1. Sotomayor's no longer a member
2. NCLR was not founded by anyone named Gutierrez
3. That's not Professor Gutierrez's name."


1. Matters not. Of course she would quit as her career became more public. How long ago did she quit and how do you know she quit?

2. Yes that is cleared up. See my prior post and note again, that I anticipated he might not have been a founder.

3. I'm no sure what you mean. Is this a spelling problem. Are there two or more different people getting confused?
6.11.2009 4:10pm
ShelbyC:

I don't think that holds up if you're defining "Hispanic" as a language group, since his ancestry wasn't from Spain but rather from Portugal, which is obviously a different linguistic animal.


Are Brazillians Hispanic?
6.11.2009 4:13pm
A. Zarkov (mail):
Tony Tutins:

I am calmed by the discovery that the Southwest Voter Registration Education Project has an annual golf tournament.

I'm not sure why that makes any difference if he truly made that comment. Extremists frequently engage in benign looking activities. The Communist Party USA (surely an extremist organization) ran summer camps for young children. That's why we call them "red diaper babies."
6.11.2009 4:15pm
Cato The Elder (mail):
Tony Tutins,

Barring a transformative political movement that envelops the entire United States, you can mark my words that L.A. will never have another non-Hispanic Mayor again, at least while the "US" is still the "US". I'd bet money on it.
6.11.2009 4:20pm
A. Zarkov (mail):
ShelbyC:

"Are Brazillians Hispanic?"

I think the answer is "yes." The term "Hispanic" describes both a language group and a racial group. The US government statistics include white and non-white Hispanic classifications. All Mexicans are Hispanic, but some Mexicans are white. In general non-white Hispanics are an admixture of two of the 5 races.
6.11.2009 4:20pm
A. Zarkov (mail):
Cato The Elder:

"... you can mark my words that L.A. will never have another non-Hispanic Mayor again, at least while the "US" is still the "US". I'd bet money on it."


I would bet with you on this one. Demographics is destiny and the shift in LA to a majority Hispanic population means a permanent one-party system there. In fact the whole of CA is becoming a one-party state. But the more CA comes to resemble Mexico the poorer it will become and less able to support the generous transfer payment system that California Hispanics enjoy. Eventually the goose dies. What then? California becomes a ward of the federal government? Joins West Virginia as the state with a permanent underclass?

Almost no politician will talk about these questions. They are so afraid of the "racist" label, they will never confront the inevitable. This is what happens when you are ruled by cowards.
6.11.2009 4:29pm
Whadonna More:

Gotcha, "its okay to be racist, cause white people did it first" line of reasoning is way more mature.


mcbain and DennisN -

The issue isn't whether it's OK to be a racist, whatever you intend that to mean, it's whether it gives someone a DIFFERENT perspective to be a minority.

SS's comment can most charitably be taken as pro-minority (minoritist?), that she sees membership in a disfavored group as a good thing.

Superiority, which is implied by the racist tag, need not enter into it. It's reasonable to believe that J. Thomas' perspective on race is different than white mens' (and valuable) even if you think most or all black people are inferior to whites.
6.11.2009 4:38pm
Bart (mail):

1. I think she probably meant it when she said that she believed that her background and upbringing would make her a "better" judge than a white man (or white woman). I don't think she meant it would merely make her "different," I think she probably really thought (and thinks) it makes her "better." She has said similar things enough to suggest that she truly believes it.

2. That she believes it does not make her a racist. Similar statements could be made if a dwarf or a football player or an immigrant or someone who overcame cancer or a former astronaut were nominated--that their background makes them a "better" judge than someone who lacks that background.

Generally, the view that a one race or gender is "better" than another is considered to be the epitome of racism, as is the argument that members of a race or gender enjoy superior life experiences simply by virtue of their race or gender. I do not see the analogy to football players, astronauts or immigrants.

3. That idea--that your background can make you a "better" judge--is, in my personal opinion, a silly idea that mischaracterizes the proper view of a judge. Nonetheless, it is a perfectly mainstream view in the academy and legal profession today--which I suspect accounts for how uncontroversial her statements seemed when they were uttered at places like Berkeley.

The fact that Sotomayor's racist and sexist views alleging the superiority of racial minorities and women are widely shared in academia does justify the views, but is rather a stunning indictment of legal academia.

4. Given the lightweight and intellectually unserious way in which she states the principle, it is hard to imagine that this would actually affect her judging, as opposed to being the sort of thing that you say when you are trying to appear profound in an academic setting.

The spin that Sotomayor is not a racist, but is rather so insecure that she feels the need to lie about having racist and sexist views in order to impress law professors and students is hardly more comforting.

5. The idea that one's life experience matters to judging is exactly what President Obama had in mind when he suggested that "empathy" is an important attribute of a judge.

Appalling that a President would share Sotomayor's views, but not too surprising.

6. I think this might be the most interesting issue that arises in her confirmation hearing--will she try to justify her statement or back away from it? Will she say that "better" really means "different" or that she really believes that she is a "better" judge as a result of that experience?

Sotomayor will be instructed on how to play it off. However, this is not an off hand remark, but a staple of Sotomayor's prepared speeches since the mid 90s and consistent with her pre bench race and sex identity politics. The question is whether the GOP Senators on the judiciary committee have the sand to cut through her spin and challenge Sotomayor to justify these abhorrent views. No white male judge could get way with these remarks and would deservedly be roasted by members of both parties during confirmation hearings. Is there a double standard for Wise Latinas?
6.11.2009 4:39pm
RPT (mail):
Conservatives excused GWB's pre-1987 activities on the grounds of youthful mistakes, or pre-religious conversion irrelevancies. Is that principle applicable here?

24.com has brought an interesting perspective to the VC. Which R members of the Judiciary Committee might be expected to follow his lead at the hearings?
6.11.2009 4:58pm
richard1 (mail):
Cato The Elder:

"... you can mark my words that L.A. will never have another non-Hispanic Mayor again, at least while the "US" is still the "US". I'd bet money on it."

Put your money where your mouth is. I'll bet you $500, in fact I'll give you odds, that a non-Hispanic will become mayor of Los Angeles in the next ten years. I live in L.A., know a little more about SoCal politics than you do and your prophecy is more than a little ridiculous given that the prominent prospective successors to the current mayor are not Hispanic.
6.11.2009 5:09pm
Perseus (mail):
The campus radicals of the 60s got their hair cut, put on coats and ties, and settled into the real world.

But many of them stayed in academia and became purveyors of intellectual rot such as critical race studies that people like Sotomayor absorb during college.
6.11.2009 5:19pm
stevefromcleveland:

I disagree at least to the extent that "life experience" means growing up in the Bronx in the 1950s as the daughter of Puerto Rican immigrants. Just what is qualifying about that experience? Having your husband beat you up? Watching your teenage boys join gangs? Dropping out of school early? Sotomayor became successful by rejecting that culture.

Take a moment and soak in the ignorant racism of that remark.

For those of you joining us late, this is from Mr. Zarkhov, who has previously posted that those pesky Puerto Rican and aggrieved negros who did not like the way they were treated in this country could always just leave.

Priceless.
6.11.2009 5:27pm
mcbain (mail):
Whadonna More:


SS's comment can most charitably be taken as pro-minority (minoritist?), that she sees membership in a disfavored group as a good thing.


No actually that is the least charitable way of taking her comment. There is a difference between touting membership in a disfavored group, and touting having experienced hardship. A charitable person would read her comment as "My life sucked, this makes me a better judge." as opposed to "I am experienced at being a latina, this makes me a better judge."



Superiority, which is implied by the racist tag, need not enter into it.


Also it is perfectly possible to be racist without implying superiority. For instance it would be racist for me to say that Harold Koh is good at math knowing nothing about him other than his race.


It's reasonable to believe that J. Thomas' perspective on race is different than white mens' (and valuable) even if you think most or all black people are inferior to whites.


ofcourse diverstiy of opinion and point of view is a good thing. I am puzzled about the rest of your post.
6.11.2009 5:29pm
whit:

I think the answer is "yes." The term "Hispanic" describes both a language group and a racial group.


nope.

race has nothing to do with whether somebody is hispanic. it's as irrelevant to being hispanic, as it is to being episcopalian.

and yes, most episcopalians are white. most hispanics (who live in the US) are of mixed native/white race.

that's great, but the definition refers to language.

there are plenty of black hispanics, for instance (especially in cuba).

there are, as was mentioned above,. even hispanics of asian origin. if you are asian race, but grew up in spain - you are a hispanic.

sure, we USE hispanic sometimes as a synonym for mixed-race person who has brown skin, brown hair, and is of some sort of native /white mix. but that's not what DEFINES hispanic.

and brazilians are not hispanic. portugese =/= spanish.
6.11.2009 5:29pm
Desiderius:
Perseus,

"But many of them stayed in academia and became purveyors of intellectual rot such as critical race studies that people like Sotomayor absorb during college."

Sorta, but not too deep. The problem with Critical Race Studies and the like is that they crowd out other idealisms that have better prospects of widespread and lasting influence.
6.11.2009 5:53pm
Desiderius:
Anderson,

Any pride worth having is not comparative (except with one's past self) and certainly not across racial categories, given the havoc historically wreaked by such pride.

Pluribus,

Physician, heal thy own.
6.11.2009 5:55pm
Whadonna More:

mcbain

ofcourse diverstiy of opinion and point of view is a good thing.

So you agree with SS that a wise latina would be a good addition to an overwhelmingly white male bench.

Or do white men cover the spectrum of opinion and point of view well enough for you?
6.11.2009 6:01pm
A. Zarkov (mail):
stevefromcleveland:

Mr. Zarkhov, who has previously posted that those pesky Puerto Rican and aggrieved negros who did not like the way they were treated in this country could always just leave.

If you check, you will see that you have misrepresented what I have previously written. Here is my position.

If the Puerto Ricans who emigrated to the Bronx in the 1950s were subjected to a level of racism so extreme it made their life horribly miserable, then it's fair to ask why they did not return in large numbers. After all, they had a place to go back to, and families to go back to as well as the means to return. They were not refugees fleeing for their lives as were (say) the boat people who fled South Vietnam after the regime collapsed and the Communists took over. Nor did the situation of the Puerto Ricans migrants in any way resemble the plight of Africans who were brought to the New World against their will and held captive for many generations. I don't see how you can possibly compare the two. Obviously the Puerto Rican immigrants found a net gain in having moved to the Bronx, so I don't think it's accurate to describe them as victims of racism. Any such charges are exaggerated, belied by their actions and made for political gain.

Do you think name calling adds to the discussion here? If you think I have made a factual errors then tell us. Stop hiding behind a wall of insults.
6.11.2009 6:05pm
Desiderius:
Cold Warrior,

Hear hear.

The clearest parallel I can draw with the "Wise Latina" statement is this one:

"We believe that the best of America is not all in Washington, D.C. ... 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"

Run-of-the-mill pandering, in both cases tragically over- interpreted by those seeking bias confirmation.
6.11.2009 6:15pm
A. Zarkov (mail):
MAM:

Zarkov condones making all blacks pay the price for the wrongs of a subset of blacks.


I am not advancing an idea of collective punishment, similar to a whole class being held after school for the actions of one or two students. Teachers once did this kind of thing under the belief that peer pressure would force a behavior change in the miscreants. That wouldn't work because the innocent black people are at the mercy of the thugs like everyone else.

What do you propose? A racial quota for the number of stops police can make? Besides being ridiculous such a policy would make life even more dangerous for innocent black people.

It is "unfortunate".It reads like an opinon of Roberts, Scalia or Thomas. In some ways, it's similar to the decisons of yester-year -- condemning all blacks based on a host of reasons -- many of which are a direct result of white supremacy.

This statement makes no sense. How does it condemn all blacks to point out that unfortunately a sizable subset commit crimes? How does the white supremacy from 50+ years ago cause today's blacks to commit crimes?
6.11.2009 6:18pm
mcbain (mail):
Whadonna More:

So you agree with SS that a wise latina would be a good addition to an overwhelmingly white male bench.


I believe her race is irrelevant. The gender might be useful in certain cases. Wisdom is a definite plus, although i myself prefer people who don't refer to themselves as wise.


Or do white men cover the spectrum of opinion and point of view well enough for you?


Meh, they do a passable job, I don't really care what they look like, I wouldn't want to sleep with any of them. I think that Ginsburg and Thomas would object to being called white men though.
6.11.2009 6:28pm
A. Zarkov (mail):
whit:

"race has nothing to do with whether somebody is hispanic. it's as irrelevant to being hispanic, as it is to being episcopalian."

Very strictly speaking you are correct, but today the term does do double duty in practice. Just a few days for a special government ID, I had to declare a race or ethnicity. "Hispanic" was one classifications. If I had Mexican parents I could declare myself "Hispanic" without speaking one word of Spanish. I could still do it even if both my parents didn't speak Spanish.

In the Southwest Hispanics are mostly Mexicans with an ancestry that is 39% American Indian, 58% Caucasian, and 3% African. On the east coast Hispanics come mostly from the Caribbean and have a larger proportion of African genes. If we don't allow "Hispanic" to include a racial admixture then communication can become somewhat muddled.
6.11.2009 6:39pm
pluribus:
Desiderius:

Pluribus,
Physician, heal thy own.

You have a rather high opinion of yourself, don't you? For one who posts so often "IANAL," just exactly what is it that you add to the legal discussions here, except hauteur? If that question is uncivil, might I suggest that you think about your own comment quoted above.
6.11.2009 6:57pm
Desiderius:
Pluribus,

"You have a rather high opinion of yourself, don't you? For one who posts so often "IANAL," just exactly what is it that you add to the legal discussions here, except hauteur? If that question is uncivil, might I suggest that you think about your own comment quoted above."

I'm one of your own.
6.11.2009 8:59pm
Desiderius:
Pluribus,

As for your questions:

"You have a rather high opinion of yourself, don't you?"

Life conspires on a regular basis to disabuse such notions. Perhaps you have noticed a similar dynamic? I'll freely admit that if a little knowledge is a dangerous thing, then I'm Hannibal Lector (if only the Pierian Spring flowed with Caffeine-Free Diet Coke!), but at times an eclectic viewpoint can keep things lively.

"For one who posts so often 'IANAL,'"

I believe I've done that once, with the intent of highlighting my own limitations. Odd combination of questions.

"just exactly what is it that you add to the legal discussions here, except hauteur?"

Anachronistic use of language admits several motivations, not all connoting hauteur. In my case, too promiscuous love of this great language itself and perhaps too much time spent reading those who make fuller use of it than is now fashionable. I miss that.

As for legal discussions, in what sense can the present one be defined so narrowly?

"If that question is uncivil, might I suggest that you think about your own comment quoted above."

Well, you mentioned that you are a Berkeley grad. I had the great joy to spend some years recently on a similar campus, and among the many delights, I also found a groupthink that would embarrass some of the small towns to which my work has taken me.

That would seem a more pressing challenge than joining the anti-Zywicki mob. YMMV.
6.11.2009 9:29pm
byomtov (mail):
Obviously the Puerto Rican immigrants found a net gain in having moved to the Bronx, so I don't think it's accurate to describe them as victims of racism.

Come on, Zarkov. That's plainly wrong as a matter of simple logic. You can do better. Just because a group lives under better conditions in the US than someplace else doesn't mean they are not discriminated against in the US.

I suppose you could argue that life in the Jim Crow South was better for blacks than life in some African countries would have been. Does that mean they didn't suffer from discrimination?
6.11.2009 9:42pm
Perseus (mail):
Sorta, but not too deep. The problem with Critical Race Studies and the like is that they crowd out other idealisms that have better prospects of widespread and lasting influence.

"Idealisms" are for disciples of Germanic philosophy. What's more, the inherent truth of a school of thought matters more to me than its prospects of influence.
6.11.2009 10:02pm
Tony Tutins (mail):

Just because a group lives under better conditions in the US than someplace else doesn't mean they are not discriminated against in the US.

I suppose you could argue that life in the Jim Crow South was better for blacks than life in some African countries would have been. Does that mean they didn't suffer from discrimination?

Another parallel: Jews, expelled from Western Europe, were welcomed by the Polish King. That doesn't mean they experienced no anti-Semitism in Poland.
6.11.2009 10:20pm
A. Zarkov (mail):
byomtov:

"Just because a group lives under better conditions in the US than someplace else doesn't mean they are not discriminated against in the US."

I didn't say they suffered no discrimination, I said any discrimination was not significant. Otherwise we must believe that Puerto Rico must have been one super hellhole. Show me how the Puerto Ricans in the Bronx suffered more discrimination than the Jews or the Italians. Those groups needed no affirmative action to advance.

"I suppose you could argue that life in the Jim Crow South was better for blacks than life in some African countries would have been."


There is much truth to that idea. But unlike the Puerto Ricans, they had to place, and no families to return to. But I guess it comes down to the question" is half a loaf, or more appropriately 90% of a loaf, better than none? A lot of people seem to think the answer is "no."

I know a lot of Jews who came here from eastern Europe, and they were grateful to be in America despite the discrimination they faced. Instead of complaining and demanding AA, they went to work. For example, resorts had signs out saying, "Restricted" (no Jews). Instead of going to court, they built their own resorts.

In one way Sotomayor sets a good example for Hispanics. She worked hard and succeeded. On the other hand, she sets a bad example by putting undue emphasis on victimization.
6.11.2009 10:24pm
A. Zarkov (mail):
"Another parallel: Jews, expelled from Western Europe, were welcomed by the Polish King. That doesn't mean they experienced no anti-Semitism in Poland."

Puerto Ricans were never expelled from their homeland. Expelled Jews had few options, so this is a poor analogy.
6.11.2009 10:33pm
Desiderius:
Perseus,

""Idealisms" are for disciples of Germanic philosophy."

Perhaps the "ism" clouded my meaning.

“Only barbarians are not curious about where they come from, how they came to be where they are, where they appear to be going, whether they wish to go there, and if so, why, and if not, why not.”

- Isaiah Berlin

"What's more, the inherent truth of a school of thought matters more to me than its prospects of influence."

Hence "lasting". Truth will out.
6.11.2009 11:46pm
DennisN (mail):
Whadonna More:

The issue isn't whether it's OK to be a racist, whatever you intend that to mean, it's whether it gives someone a DIFFERENT perspective to be a minority.


Actually, those are independently valid questions.

I can accept the argument that being a "wise Latina" gives her a perspective that could add valuable dimension to an argument. So could anyone's unique experience, including I suppose, a KKK Grand Whatsisface.

The second question is whether blatant racism is a categorical disqualifier. If I would be disqualified on the basis my repeatedly and publicly stating that being "an educated white male," would make me a better judgements than a Latina, then she should be disqualified on the basis of saying the converse. Any other conclusion is, in itself, racist.


A. Zarkov:
Obviously the Puerto Rican immigrants found a net gain in having moved to the Bronx, so I don't think it's accurate to describe them as victims of racism.

The two are not mutually exclusive. They may be experiencing a net gain, but can still be the victims of racism.

Let's say the economic situation is very poor, and you are desperately in need of a job. You come to work for me, where I whip you to make you work faster. I pay you well, however. You can still quit and get a substandard job across the street. Are you still not a victim of assault, even if you decide to put up with it?
6.12.2009 12:05pm
CJColucci:
Show me how the Puerto Ricans in the Bronx suffered more discrimination than the Jews or the Italians. Those groups needed no affirmative action to advance.

Anyone who remembers the days, not so long ago, when aspirants (of any ethnicity) for local office in New York City had to make the "Three-I" pilgrimage and hand out goodies accordingly, can only gape in astonishment.
6.12.2009 12:08pm
not smart (mail):
David M. Nieporent, you are not smart and your name sucks
6.12.2009 12:53pm
EH (mail):
uh, is it just me or has nobody challenged the assumption that it's even possible to be non-racist?
6.12.2009 6:57pm
Desiderius:
EH,

Don't be so hard on yourself - everybody's somebody here at the VC! Make your case.
6.12.2009 9:25pm
Clayton E. Cramer (mail) (www):
I'm generally skeptical of claims of systemic racial bias in the last few years*, but one of the reasons why I don't find the "Driving While Black" claim completely absurd (unlike much of the rest of the racial victimhood cult) is that when I lived in San Jose in the mid-1980s, we had a neighbor who was constantly being pulled over for "Driving While Brown." She wasn't Hispanic, but she was dark enough to be mistaken for Hispanic at distance. She was constantly being pulled over by SJPD for all sorts of utterly bizarre reasons--but it seems as though the possibility that an Hispanic could be driving a new car that wasn't stolen simply did not occur to SJPD.

I suspect that this problem has been resolved. There's no shortage of Hispanics in San Jose with good jobs, who can therefore afford a new car.

* I don't find a claim of individual racial bias particularly absurd, and I will entertain the possibility of particular local governments doing stuff out of racial animus. But I have long since learned that racial hatred is pretty evenly distributed across the rainbow in America. And police officers, because of the nature of their work, are likely to get a pretty dark view of blacks and Hispanics, since these two groups are overrepresented among violent felonies, as both offenders and victims.
6.12.2009 11:00pm
DennisN (mail):
EH:
uh, is it just me or has nobody challenged the assumption that it's even possible to be non-racist?


OK, I'll bite. I don't think it is possible to be non-racist. I've never seen a place in the World where the population is not racist to some extent. Americans aren't even very "good" at it.

I think it's an inherent trait to distrust those who are different. The civilized among us recognize that and try to filter it out of our actions. Being human, that means we over react and under react on a regular basis.
6.13.2009 9:49am

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