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Standing Pat

July 17th, 2009 · 29 Comments

Disturbing as I find it to defend Pat Buchanan in any dispute about race, one aspect of the argument Rachel Maddow makes in this much-blogged-about exchange seems rather odd to me.  She challenges Buchanan to explain why 108 of 110 Supreme Court justices have been white, arguing that this suggests minority candidates have been unfairly denied consideration. In a way, this weirdly understates the severity of institutional racism in the United States, since it implies that there were all these qualified minority jurists who were getting short shrift from the Oval Office. If only! Buchanan’s answer, though noxiously put, actually seems closer to correct: This was an overwhelmingly white country until the 70s, and endemic discrimination meant that the non-white tenth of the population was not, as a rule, welcome in elite law schools—or, for that matter, minimally adequate elementary schools. If, in the 20th century, there had been plenty of qualified minority legal thinkers, because we were actually affording minority populations some kind of decent educational opportunities, but these people were later slighted by prejudiced presidents, that would be an awesomely happier story of American race relations—get some less bigoted presidents and the problem is solved!

The actually-racist part of Buchanan’s argument is the presumption that Sotomayor must be unqualified since she admits to being an “affirmative action baby.” Frankly, she would seem to be damn near the Platonic ideal of how affirmative action is supposed to work, and probably not the sort of example opponents of such policies want to hold up as paradigmatic. That is, she was a woman of clear ability and intelligence who, as a result of her disadvantaged background, was given a pass on subpar standardized test scores in college admissions—and sure enough, rose to the challenge spectacularly when given an opportunity to study an environment that was both highly demanding and intellectually nourishing.  For Buchanan, it seems that either that early boost poisons the spring of her achievements at the source, or he’s assuming without evidence that she didn’t genuinely earn her later accomplishments by really flourishing once she’d arrived at Princeton.*

These two stories are actually complimentary. That is, academic affirmative action makes the most sense—bracketing for a moment the separate case grounded in the educational value of a diverse student body—if you think that one legacy of institutional racism in the United States is that minority populations have not been given the opportunity to excel, such that “neutral” measures like standardized tests will not reveal the true potential of minority applicants. But if you think that’s true—if you think that a long history of state-supported systemic racism might actually have some kind of lasting impact on the life prospects of disfavored populations, even after formal discrimination is ended—then you should not expect anything close to parity of qualifications as measured by neutral criteria.

All that said, I find truly bizarre the conflation of “affirmative action” in the academic and ordinary hiring contexts with Sotomayor’s putative status as an “affirmative action” pick. Again, while I think it’s fairly clear that she is an affirmative action pick in one sense, it’s pretty close to the ideal of how affirmative action is supposed to work, which is to say: From a pool of highly qualified candidates, you let ethnicity act as a tiebreaker. It seems self-evident to me that John Smith with Sonia Sotomayor’s resume would be a reasonable pick for the Supreme Court. I think it’s equally evident that, when it came time to choose from the highly elite people with the requisite experience and qualifications, it mattered that she was a Latina. For an institution like the Supreme Court, I have no serious problem with that being a consideration, provided we’re talking about the choice between candidates who meet the prior threshold of excellence you want any justice to surpass.  It’s not like there’s some Supreme Court SAT that lets you objectively rank jurists, such that Sotomayor is “unfairly” promoted ahead of “better” candidates. Once you’re down to that elite pool, the decision amounts to a president’s highly subjective assessment of the specific character, experience, and philosophy of individual candidates, bearing in mind the composition of the rest of the court. And when you’re carrying out that level of individualized analysis, for a job that includes interpreting the meaning of “equal protection” or “hostile work environment” for a diverse population, it’s hardly mysterious why membership in a disadvantaged group might seem relevant—it’s not independent from some external, independent criterion of “bestness.” The plaintiffs in Ricci, even if you think the case was wrongly decided, at least had a colorable claim to be entitled to consideration for promotion on the basis of the facially neutral selection procedure that New Haven had established. Seats on the Supreme Court, at the risk of stating the obvious, don’t work like that. So in that context, I’m not sure the claim that Sotomayor is an “affirmative action pick” really has any sting to it.


* This requires explaining away her Pyne Prize—which Buchanan doesn’t bother with—and her summa, which he does, with a bit of handwaving about how “everyone” gets honors at elite universities. As of 2001, after decades of grade inflation, it appears that 44 percent of Princeton students graduated with some sort of honors (cum laude, magna, or summa). On any kind of ordinary distribution of those honors, that might mean, at most, the top 5–10 percent earning a summa. The irony here is that Buchanan goes on and on about how he doesn’t assume racism just because success in some field or another isn’t perfectly evenly distributed. But he does go into wild contortions to attribute Sotomayor’s success to racial preferences.

Tags: Journalism & the Media · Law · Sociology


       

 

29 responses so far ↓

  • 1 RickRussellTX // Jul 17, 2009 at 3:23 pm

    I think you give the arguments too much credit. Claims of “reverse racism” seem to boil down to nothing more than “when we’re winning, we can do no wrong”, “when we’re losing, it’s somebody else’s fault”.

    Doesn’t *everyone* make that argument all the time, whether it is true or not? Old white guys have been toting out the “affirmative action is nothing more than reverse racism” argument for decades.

    The fundamental error, of course, is to think of academic or career success as a case of “us” against “them”. In the places I’ve worked (a US News top-20 university and an aerospace research firm), I’ve found that the successful people break down these barriers and get everybody working towards the success of the organization, regardless of race or gender.

  • 2 Mike // Jul 17, 2009 at 4:21 pm

    This is mostly right, but no need to defend Pat Buchanan. You can’t excuse the lack of non-white, non-male judges by pointing out the lack of qualified nominees. The only reason there were no qualified nominees is that only white men were given the opportunity to pursue law.

    Also, pointing out that the US population was only 10% non-white for most of our history doesn’t explain why 0% of our judges were non-white. All else being equal, wouldn’t you expect at least a FEW non-white judges? To say nothing of female and non-Christian judges…

  • 3 Dom // Jul 17, 2009 at 5:05 pm

    So Sotomayor’s ruling in the Ricci case was clearly wrong. Race was not one consideration among many in that ruling, nor was it used as a tie-breaker. There is no doubt that Ricci and the others would have been promoted had they been black or hispanic.

    Sotomayor is not as qualified as Miguel Estrada.

  • 4 Julian Sanchez // Jul 17, 2009 at 5:07 pm

    The Ricci case was also not about affirmative action.

  • 5 Dom // Jul 17, 2009 at 5:52 pm

    But isn’t it correct to say that was decided by race, and race alone?

  • 6 Julian Sanchez // Jul 17, 2009 at 6:46 pm

    No; you’re conflating the city’s decision with the legal decisions. The decision of New Haven to throw out the test results *was* motivated by the racial distribution of scores. The legal decisions were made by interpreting Title VII in light of precedent. All courts to hear the case, including the Supreme Court, agree that under current law the city is potentially liable for suit if it employs a test that has a “disparate impact” on minority groups, whether or not the test is inherently discriminatory.

    Ironically, we see a lot of putatively conservative strict constructionists who have no idea of the actual legal issues in play confidently asserting that Sotomayor must have made the wrong decision because the outcome is manifestly unfair, which is supposed to be what judicial activists do — ignore the law and just push a “fair” outcome. A good rule of thumb is that anyone who draws a blank when they hear, say, “Griggs v. Duke Power” simply has no business holding an opinion either way about the correctness of the decision.

    I think it’s good as a policy matter that the Supreme Court has now created a new standard to help deal with cases like this, and I’m happy for the plaintiffs. I don’t fault a circuit court for declining to innovate, regardless of the problems I might have with the high court’s disparate impact jurisprudence.

  • 7 Dave // Jul 17, 2009 at 9:38 pm

    “Crazy Uncle Pat” demonstrated his life-long racist, sexist views, general intolerance, arrogance and ignorance. There is absolutely no defense for Buchanan, based on his uninformed “facts.”

    We have always been more mixed than official history would have it. White men certainly had the land, money and power. As a society, we could not have accomplished all we have were it left to white men.

    The Sotomayor quote has been taken out of context and the New Haven decision was not hers alone. Buchanan’s was an uninformed rant against fairness, decency and moving forward.

    Posturing seems to be the main proclivity of our right wing today.

  • 8 B. Kennedy // Jul 17, 2009 at 10:07 pm

    Posturing seems to be the main proclivity of our right wing today.

    Do I even need to point out the crushing irony of this statement?

    I’ve no defense for that loon Pat Buchanan, but affirmative action discussions invariably turn into a bash whitey festival. Like it or not, the Founding Fathers, the people who created the Western Civilization that established the premises to allow racial equality to come to the forefront, were a bunch of old, slave-owning white guys in powdered wigs.

    I despise treating people as a collective in principle, but it isn’t even arguable. If a person’s skin color were the determinant of their tolerance of other races, slavery would never have been born because it is sourced primarily in the early civilizations of Africa and the Middle East. White people were just better at utilizing it.

    Anyone who doesn’t have the infantile “Pure Beleagured Mother Africa” understanding of world history knows that slavery was a common practice for all races long before colonial dominance. There were even black slaveowners in America, not that the subject is even approached in whitewashed history texts.

    Racism is dead because of the contributions of primarily white philosophers on the matters of freedom and liberty. Contrast modern non-Western civilizations. Most of mainland Asia lives under tyrannies and caste systems, and the Middle East is a case study of racist non-whites.

    So yes, from 1776 until relatively recent history, white land-owning men basically had all the power. These same white land-owning men also died in droves to maintain their property and secure their freedom. Moreover, they left ideas that were a poison pill for the ways of the past they regarded as inhuman. I’m not asking for a shout-out to whitey, but please don’t have the pretension that the world would have progressed faster if only white men weren’t in power for so long.

  • 9 Justin // Jul 17, 2009 at 11:52 pm

    Nice post. I thought the points about Sotomayor as a paradigm case of the upside of affirmative action were especially nice, and an idea that I haven’t encountered before.

    And there’s no shame in defending someone like Buchanan on an isolated point. Stopped clocks and all…

  • 10 ed bowlinger // Jul 18, 2009 at 1:28 am

    From a pool of highly qualified candidates, you let ethnicity act as a tiebreaker. It seems self-evident to me that John Smith with Sonia Sotomayor’s resume would be a reasonable pick for the Supreme Court. I think it’s equally evident that, when it came time to choose from the highly elite people with the requisite experience and qualifications, it mattered that she was a Latina.

    I’m wondering how, by this logic, a white male could ever be seated on the Supreme Court again.

  • 11 Mark E // Jul 18, 2009 at 1:37 am

    Julian you make a strong argument for Sotomayor’s position on the court. In fact, it’s much more convincing than that of those who are elected officials and SUPPOSED to be explaining it.

  • 12 Sotomayor and Affirmative Action // Jul 18, 2009 at 7:54 am

    [...] Julian Sanchez argues that, while Sonia Sotomayor was given special consideration because she’s a Latina at various stages in her life, her case is “pretty close to the ideal of how affirmative action is supposed to work.” From a pool of highly qualified candidates, you let ethnicity act as a tiebreaker. It seems self-evident to me that John Smith with Sonia Sotomayor’s resume would be a reasonable pick for the Supreme Court. I think it’s equally evident that, when it came time to choose from the highly elite people with the requisite experience and qualifications, it mattered that she was a Latina. For an institution like the Supreme Court, I have no serious problem with that being a consideration, provided we’re talking about the choice between candidates who meet the prior threshold of excellence you want any justice to surpass. It’s not like there’s some Supreme Court SAT that lets you objectively rank jurists, such that Sotomayor is “unfairly” promoted ahead of “better” candidates. Once you’re down to that elite pool, the decision amounts to a president’s highly subjective assessment of the specific character, experience, and philosophy of individual candidates, bearing in mind the composition of the rest of the court. And when you’re carrying out that level of individualized analysis, for a job that includes interpreting the meaning of “equal protection” or “hostile work environment” for a diverse population, it’s hardly mysterious why membership in a disadvantaged group might seem relevant—it’s not independent from some external, independent criterion of “bestness.” [...]

  • 13 Julian Sanchez // Jul 18, 2009 at 10:05 am

    “I’m wondering how, by this logic, a white male could ever be seated on the Supreme Court again.”

    If none ever were, it would be too far down the list of cosmic injustices to be worth noticing. But obviously, the “relative to the composition of the rest of the court” factor is relevant here.

  • 14 Another Mike // Jul 18, 2009 at 12:32 pm

    One should recall that a Second Circuit judge requested that the Ricci decision be revisited en banc (i.e., by a panel of all 13 judges sitting on that circuit), that rehearing was denied by a 7-6 vote, and that judge Cabranes and chief judge Jacobs wrote dissenting opinions urging Supreme Court review.

    On another note, there’s the small matter of inherent cognitive differences between racial groups that provides the most parsimonious explanation for the outsize representation of Whites, and particularly White men, in intellectually demanding fields.

    Nature herself runs afoul of Title VII. What to do about that?

  • 15 Julian Sanchez // Jul 18, 2009 at 1:18 pm

    “parsimonious” is one word for it

  • 16 ed bowlinger // Jul 18, 2009 at 1:46 pm

    If none ever were, it would be too far down the list of cosmic injustices to be worth noticing. But obviously, the “relative to the composition of the rest of the court” factor is relevant here.

    There are nearly 17.4 million whites living in poverty in America, compared with 8.8 million blacks and 9.2 million Hispanics. Sure, your random black or hispanic is more likely to be poor, but your random poor person is more likely to be white. (According to http://www.census.gov/prod/2008pubs/acs-09.pdf). Using race as a proxy for SES or background really cheeses me off for this reason. There are a lot of impoverished whites out there who don’t seem to matter to anyone.

  • 17 B. Kennedy // Jul 18, 2009 at 2:02 pm

    If none ever were, it would be too far down the list of cosmic injustices to be worth noticing. But obviously, the “relative to the composition of the rest of the court” factor is relevant here.

    Racism is some form never dies, it just becomes a different looking exercise in bean counting. As soon as you start talking about making some group of positions or persons “representative of the general population,” the argument one supports a meritocracy in which affirmative action is only a minor part is specious. America in particular is so diverse you could literally subdivide infinitely. Where’s the spot for the gay Fillipino on the court or the Russian mail-order bride?

    “Oh, it’s just white people getting negatively affected. No biggie.”

    Injustice isn’t something you prioritize on a scale. It becomes nothing more than a race to the bottom for each aggrieved collective claiming that they are history’s biggest losers, and we must reward current members of that victim group for injustices that happened to past members decades, centuries, millenia ago.

    Bean counting is just racism of a different color. It’s just as condescending as any other racial preference program, it just has the smiley face of political correctness upon it.

    A truly equitable system? Remove all indications of race or gender on a nominee’s resume, and give them a number. The President then selects a number and that is the person put forward.

    It won’t please the racial bean counters, but it will be objective. The way to end preferences based on race is to cease using systems where race is a factor whatsoever, including as a “tiebreaker.”

  • 18 Things that make me go “Huh!” § Unqualified Offerings // Jul 18, 2009 at 3:24 pm

    [...] I really appreciate Julian Sanchez saying this: Ironically, we see a lot of putatively conservative strict constructionists who have no idea of [...]

  • 19 Another Mike // Jul 18, 2009 at 3:39 pm

    ” ‘parsimonious’ is one word for it”

    “Non-tortured” is another. (Or is that two? One and a half?)

  • 20 RickRussellTX // Jul 18, 2009 at 4:42 pm

    “A truly equitable system? Remove all indications of race or gender on a nominee’s resume, and give them a number. The President then selects a number and that is the person put forward.”

    As Julian rightly points out, such a system cannot exist at this level of selection. Of the dozen or so people who have excellent credentials for the SCOTUS, Mr. Obama himself could probably identify them all from a small fraction of their de-personalized C.V. He has some knowledge of constitutional law, you know.

    I don’t think anybody is saying that “using ethnicity as a tiebreaker *forever*” is a good thing. We all understand that this goal is motivated by history. Our remembrance of history will fade, but it will only fade when racial minorities have a fair opportunity to represent themselves at the highest levels of government, business and academics.

    The generation of “affirmative-action-enabled” leaders is just now reaching the pinnacle of their careers. We need a generation or two of well-mixed leadership — even if that mix has to be somewhat “forced” — so we can put the injustices of the past three centuries behind us.

    The damping effect of affirmative action is not perfect, and the pendulum may swing back and forth a little bit before the long-term effects of racism are neutralized. But it will happen, and making space on the national stage for qualified people of different races is entirely appropriate.

  • 21 Random Precision // Jul 18, 2009 at 4:45 pm

    ” ‘parsimonious’ is one word for it”

    “Idiotic” is the right word for it.

  • 22 Another Mike // Jul 18, 2009 at 5:31 pm

    RRTX talks about a “generation or two of well-mixed leadership” before minorities get their due. They’ll be getting it anyhow, since Whites will then be the minority.

    If “anti-racists” a/k/a reality deniers were engaging in a lonely struggle against Mother Nature, with the inevitable consequences only theirs to bear, I’d have no problem. Unfortunately, the rest of us have been/are/will be paying the price for their delusions.

    And look, we’ve just been given a fine example of how free speech will fare in a majority non-White nation: http://www.cnn.com/2009/CRIME/07/17/police.racism.lawsuit/index.html

    If you think there’s such a thing as a right not to be offended, your franchise should be rescinded.

  • 23 Mike // Jul 18, 2009 at 6:03 pm

    I’m tempted to respond to some of the nasty, thick-headed comments in this thread, but I know it would be tilting at mindmills. Instead, I’ll speak to those who think race is often a relevant consideration. We need to get out the message that when minorities succeed, everybody wins. Helping minorities succeed means fewer people on welfare, less crime, a stronger economy, etc. We need to communicate that minority-friendly policies don’t take anything away from whites, they just grow the pie.

  • 24 ed bowlinger // Jul 18, 2009 at 8:21 pm

    Helping minorities succeed means fewer people on welfare, less crime, a stronger economy, etc.

    This just can’t be the case, unless you think there’s something inherent in minorities which makes them more likely to need welfare or commit crimes. Equating minorities with welfare and crime doesn’t help anyone, least of all minorities. Poverty and social background have much more direct relationships with welfare and crime.

    We need to communicate that minority-friendly policies don’t take anything away from whites, they just grow the pie.

    I don’t think the argument can be made that all, or even most, minority-friendly policies are Pareto improvements.

  • 25 Another Mike // Jul 18, 2009 at 8:36 pm

    “… don’t take anything from Whites …”

    Uh, huh. “Minority-friendly” policies over the past five decades have resulted in a net transfer of over $1 trillion (yes, a thousand billion) from Whites to non-Whites in the form of entitlements consumed disproportionately by non-Whites and paid for overwhelmingly by Whites. Welfare dependency and crime among non-Whites increased significantly over most of that period.

    Reality sure can be nasty and thick-headed sometimes.

    Well, that’s all the pearls I’ll be casting for now. (And thank you, Julian, for running an unmoderated blog.)

  • 26 Mike // Jul 18, 2009 at 11:15 pm

    I have to admit to making an incomplete case. It certainly is possible to craft policies that help minorities at the expense of whites. Even worse, it’s possible to craft policies that hurt whites without helping minorities. Certain welfare policies could be fairly placed in that second category.

    However, things don’t have to be that way. It is also possible to help minorities in ways that indirectly help whites. For example, it’s worthwhile to spend extra tax dollars to get minorities a quality education. You’ll more than make back the investment, as you will turn out minority graduates who are more productive, put more earnings into the economy, pay more taxes, etc.

  • 27 Dom // Jul 18, 2009 at 11:25 pm

    Compare and contrast:

    “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.”

    “On another note, there’s the small matter of inherent cognitive differences between racial groups that provides the most parsimonious explanation for the outsize representation of Whites, and particularly White men, in intellectually demanding fields.”

    Why is the first statement considering wise, but not the second.

  • 28 Lester Wall // Jul 19, 2009 at 10:07 am

    @Dom

    The statements affirm the same underlying premise: different people see/deal with/interpret the world differently. But the first statement assigns no value, just highlights the difference “will make a difference in our judging”. The second statement implies the superiority (not just a difference or perspective) of a specific group, White men.

  • 29 Julian Sanchez // Jul 21, 2009 at 10:35 am

    Dom-
    Honestly, don’t ask rhetorical questions you haven’t made some minimal effort to answer yourself. Go find the original context for that line–the first speech in which she said it–and figure it out.

    AnotherMike-
    It’s not entirely unmoderated, you’re just not crossing my lines. If you’re not spamming, behaving abusively, or otherwise shutting down conversation, that I find your views misguided or distasteful is beside the point.

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