I’ll cop to sharing some of Yglesias’ irritation at the treatment of Sonia Sotomayor, and if Republicans are managing to get a rise out of my pallid ass, I can only imagine the kind of damage they’re doing to their brand among, you know, real Latinos. For one, it is basically impossible for me to believe that anyone with two functioning brain cells could read the “wise Latina” speech in full and find the notion that it’s “racist” anything but laughable. It’s been done to death in a thousand other venues, but one more time for those who are just joining us now: Sotomayor is talking about different views of how identity affects judging, and in particular she’s focusing on cases the high courts have decided involving race or gender discrimination. She mentions a quotation attributed to Sandra Day O’Connor to the effect that a “wise old man” and a “wise old woman” will come to the same conclusion. And she wonder’s whether that’s true, because historically some very wise jurists handed down decisions that we now mostly recognize as bad ones. She’s suggesting that someone with the experience of living as a disfavored minority might not have fallen prey to some of their errors:
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
This isn’t racist, or even particularly controversial. It’s just obvious. Consider Justice Henry Brown’s opinion in Plessy v. Ferguson:
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Let me posit that basically any black man living in Louisiana in 1896 would have understood perfectly well why this is grotesque and misguided, and why “separate but equal” is a cruel fiction. He might not be a better judge on the whole, but he’d surely make a “better” decision in this kind of case. At this point in history, of course, we all understand this—though not in quite the same visceral way—and so a judge of any ethnicity or gender would make a better decision. But there are still cases that might involve somewhat more subtle dynamics—questions, for instance, about when a government policy exerts a “chilling effect” on speech—where a certain kind of experience might make it easier to see what’s going on. Similarly, a judge who had previously run a small business might understand the ways that economic regulation implicates other liberty interests in a more robust way than our current jurisprudence tends to—and in those types of cases a wise entrepreneur might be equipped to make a better decision. Not because entrepreneurs are better, but because there are facets of the situation they’ll more easily comprehend that might not be as obvious to someone with a different experience.
On a related note, I find the “what if a white man said that?” move incredibly grating about 99 percent of the time it’s used, because it’s almost always a way of blotting out all the reasons that it would, in fact, be different. In the instance, it would be weird for a white man to say it because it’s probably not true that the experience of growing up as a white male in the United States specifically enhances one’s understanding of what it means to be a disfavored minority. In other words, it just wouldn’t be true or reasonable in this case—though it might be for a white male who grew up as a religious or ethnic minority somewhere else in the world. So yes, sometimes formally gramatically equivalent statements will have different connotations depending on whether it’s a white person speaking about whites or a Latino speaking about Latinos, because history happened. I realize this is, like, the worst racial injustice ever, but Republicans should realize how insanely tone-deaf they come across when they assert that Sotomayor’s is a “story of privilege” because she was “blessed by Providence with the precisely correct right race-gender two-fer for the moment”—as opposed to poor schmucks saddled with surnames like Bush, I suppose, who had to claw their way into the Ivies on their own merits. Or how it sounds when Fred Barnes engages in bouts of Socratic reasoning like the following:
BARNES: I think you can make the case that she’s one of those who has benefited from affirmative action over the years tremendously.
BENNETT: Yeah, well, maybe so. Did she get into Princeton on affirmative action, one wonders.
BARNES: One wonders.
BENNETT: Summa Cum Laude, I don’t think you get on affirmative action. I don’t know what her major was, but Summa Cum Laude’s a pretty big deal.
BARNES: I guess it is, but you know, there’s some schools and maybe Princeton’s not one of them, where if you don’t get Summa Cum Laude then or some kind of Cum Laude, you then, you’re a D+ student.
I feel pretty confident that Fred Barnes has met a few people who attended Princeton, and does not, in fact, believe that they hand out Summas like party favors. So when he goes hunting for some way to cling to the belief that this woman must be a dunce who got some kind of special treatment, it’s hard not to wonder what his priors are. Or here’s Michael Goldfarb on reports that “Princeton allowed Sotomayor and two other students to initiate a seminar, for full credit and with the university’s blessings, on the Puerto Rican experience and its relation to contemporary America”:
I went to Princeton but somehow I never got to teach my own class, or grade my own work. One wonders how Sotomayor judged her work in that class, and whether the grade helped or hindered her efforts to graduate with honors.
Now, Goldfarb can’t even have clicked through his own link to read the press release from the 70s about the course. He would have discovered that when the course was launched, all students had for six years been allowed to propose a seminar on material not covered by the curriculum, and that 132 such seminars had been created under those rules. He would have learned that the course was, in fact, taught by a historian and Latin America expert Prof. Peter Winn. And as you watch these gross distortions pile up, you start coming away with the clear impression that they’re not just the result of simple sloppiness, but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences—and that there’s no need to double-check and see whether that’s supported by the facts in this case. They just know she can’t have really earned it.
Look, it’s not racist to oppose a Latina judicial nominee, or to oppose affirmative action, or to point out genuine evidence of ethnic bias on the part of minorities. What we’re seeing here, though, is people clinging to the belief that Sotomayor has to be some mediocrity who struck the ethnic jackpot, that whatever benefit she got from affirmative action must be vastly more significant than her own qualities, that she’s got to be a harpy boiling with hatred for whitey, however overwhelming the evidence against all these propositions is. This is really profoundly ugly. Like Yglesias, I don’t think I’m especially sensitive to stuff like this, or particularly easily moved to anger, but I’m angry. I don’t think Republican pundits really appreciate the kind of damage they’re probably doing, for no reason I can discern given the slim odds of actually blocking the nomination. Which, perhaps, goes to Sotomayor’s point: They really have no idea how they sound to anyone else.