For Republicans in the Senate, the Supreme Court nomination of Sonia Sotomayor is a lesson in the law of unintended consequences and another unfortunate legacy of the mistakes of the Bush administration.
I have occasionally defended some of Bush's well intentioned mistakes, but there's no way to put a happy face on this one, because it is going to put a woman on the highest court in the land who believes that judges should write the laws, that some racial and social groups are more worthy than others, that gun rights aren't really protected in the constitution, that government can seize your property without due process and give it to businesses and that free speech is a privilege granted by government to some and not others.
The problem which faces Republicans in this nomination, is that they will likely find themselves unable to filibuster or oppose Sotomayor with any vehemence because she is Hispanic and a woman with a record of flaws which are ideological rather than ethical. Already great pressure is being exerted on GOP senators from party leadership to go easy on Sotomayor to earn some credit with the administration for the future. The fear is that opposition to Sotomayor may cost Republicans Hispanic support at a time when they need every new vote they can get and when Hispanic Republican politicians are rising on the national stage, increasing hopes for a breakthrough with that constituency.
The irony is that this would not be nearly as much of a problem for the GOP had it not been for a little noted failure of the Bush administration. The seeds of this situation were planted back in 2005, when Sandra Day O'Connor was retiring, and Bush floated the names of a number of Hispanic judges as potential replacements, including Emilio Garza, Alberto Gonzales and Consuelo Callahan. In each of these cases Democrat Senators told President Bush that he would face a filibuster against the candidate and his response was to back down and look for another nominee who was more acceptable to Democrats. The problem with this morally weak strategy was that it meant that despite his desire to appoint the first Hispanic justice, Bush threw away that opportunity and the chance it provided to score points with Hispanic voters and now that opportunity has been handed to the Democrats.
Article comments
— go to most recent comments1 - Clavos
The Bush screwup also cost the GOP the bragging rights for naming the first Hispanic Justice.
Interesting and original analysis on the nomination, Dave.
2 - Dave Nalle
Thanks, Clavos. I'm not sure that Sotomayor is as bad as it could get, but having our chances of at least challenging her undermined this way only serves to weaken the bipartisan system even more.
Dave
3 - zingzing
the man was a a colossal fuck-up in every way. and was elected twice... oh, america...
4 - Dave Nalle
And now we've apparently got him in for a third term disguised as Obama.
Dave
5 - Arch Conservative
Apparently Zing prefers colossal fuckups to have Ds beside their names.
That makes everything OK when wasting trillions of dollars and naming racists to the Supreme court.
6 - Glenn Contrarian
Looks like y'all need some edjimication when it comes to ensuring the sound bites you read are taken IN context, and how taking comments OUT of context (often by omitting certain parts) is a common tool in destroying a good reputation built by an honorable career.
Give me a couple days and I'll publish the OTHER side of the story that the RNC (Rush-Newt-Cheney) doesn't want you to read...including why it's a GOOD thing that judges have empathy.
7 - roger nowosielski
Glenn,
I should say that having empathy is a good quality to have for any person (judges included). But before you write this piece, read Dan Miller's article on the subject and the thread; at least you should consider the counter-arguments.
8 - Jordan Richardson
And now we've apparently got him in for a third term disguised as Obama.
Really? Kinda makes you wonder what all the fuss is about then...
That makes everything OK when wasting trillions of dollars and naming racists to the Supreme court.
I'm hearing this racist label lobbed around, but I've yet to read a cogent argument as to why this is the case. Perhaps you're the wrong guy to ask, Archie, but why is she considered a racist?
9 - Glenn Contrarian
"A 'morally weak decision' NOT to have Alberto Gonzales as a Supreme Court Nominee? Dave, is that a truly serious statement? I mean, hey - don't you think there's a GOOD reason why NO law firm (including the many who are strongly conservative) has YET to hire this former Attorney General, this man who was once the TOP law-enforcement officer of the entire nation?
No offense, Dave, but you really need to lay off the Kool-Aid....
10 - roger nowosielski
There was a comment, Jordan, to a WSJ link (provided on another thread), where she is reputed to say something to the effect that a wise Latina woman is likely to come up with better judicial decisions than wise white men.
11 - Dr Dreadful
Sounds, Dave, as if you wish GW had pushed through a little bit of affirmative action back in '05...
12 - zingzing
dave--if obama is bush, pt iii, doesn't that make bush a socialist?
i thought obama represented the rise of socialist fascism... but now i hear he's just the same as bush...
what's your message, dave? i'm a little confused. or maybe it's you.
13 - Cindy
And now we've apparently got him in for a third term disguised as Obama. --Dave
They're all the same Dave.
...something to the effect that a wise Latina woman is likely to come up with better judicial decisions than wise white men...
The effect was actually that being a member of a certain group allows her greater insight into that group. She is merely saying that to some degree, she is a member of the subordinate culture and can much more clearly see through those eyes, whereas a member of the dominant culture would have trouble doing that.
14 - roger nowosielski
"trouble" - more for some than for the others. But not impossible.
Wisdom is color-blind, regardless of what source it emanates from.
A more judicious statement on here part - and less objectionable- would be "as good as ..."
15 - Cindy
#14
That would completely miss my point. I stand by what I said as written.
16 - Baronius
Cindy, that's nothing like what she said. You're completely wrong.
17 - Cindy
I guess I'll have to look at the quote again.
18 - Cindy
“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.” [emphasis makes my point]
I reiterate my position. That's exactly what I got from that.
19 - Baronius
"Who hasn't lived that life" doesn't make the point at all. It would if she were talking about judging fellow Latinas, but she wasn't. Read the speech.
I found that particular sentence to be moronic, but I was far more troubled by her meticulous tallying of race and sex, her assertion that we probably shouldn't try to judge impartially, and ultimately by her rejection of the notion of objective truth.
20 - Cindy
I'll read the speech.
21 - roger nowosielski
I don't see, Baronius, whether it matters here whether "a white male" includes the Hispanics or not. Perhaps you can explain it to me.
If it's supposed to - as you say it should, in order for her proposition to be (in your opinion) more coherent - then the distinction at work is between Latino men and Latina women (a sexist one, to say the least).
But if it doesn't - and I think this is the right meaning - than the distinction is between a wise and experienced Latina woman (such as herself, in this instance) and a wise and experienced white male (whether he's Hispanic or not) - and that, too, is a sexist distinction (and could be an ethnic one as well).
That's precisely what I find problematic here: the presupposition that one would have to be a Hispanic (and a woman, preferably, too) in order to reach "better," "more informed," and "wiser" legal decisions - because a non-Hispanic would (almost by definition) lack in the required empathy.
If by "better," "more informed," or "wiser" nothing more is meant than simply more advantageous and more favoring the Hispanic community, there may be no disagreement here.
But we're talking about justice and fairness and wisdom in general which, again, is supposed to be colorblind and not given to favoritism.
Besides, it flies in the face of the most fundamental assumption about the individual qua individual to say that all our conceptions of justice and wisdom are necessarily relative to the circumstances of our birth - whether we're a male, a female, a black, a white, or whatever. Indeed, once you allow the relative conception to set it, you're worst off than you were before, because there'd be no such a thing then as wisdom or justice but only a wisdom or justice of different and competing kinds, for example:
women's justice vs men's justice,
black justice vs. white justice
Latino justice vs. Asian people's justice.
And so on and so forth.
22 - Baronius
Roger, I don't fully understand your first two sentences. I wasn't defending Sotomayor's position, only trying to speculate under what terms Cindy's interpretation might be right.
Sotomayor's statement if taken literally would be racist and sexist. It would indicate, not just competing kinds of justice as you note, but the superiority of Latina justice. That's why I doubt she meant it as such. This is one of those cases where a person couldn't mean what they said and be a mentally healthy contemporary human being. So I assume she was just playing to the crowd. That being said, there were some other comments in that speech that would suggest competing kinds of justice.
23 - roger nowosielski
That's my point exactly - it's a double whammy - sexist and ethnic. (And if Hispanic men were to be included among "white males") than it's at least sexist.
So yes, the only explanation - she was playing to the crowd, La Raza, because no Supreme Court nominee can seriously stand by that statement.
To delineate it even further, one could be supporting her nomination on the basis for fairer Hispanic or women representation (in the court); but to support her nomination by her claim that she'd be wiser and more just on a/c of being a Latina or a woman - that's utter nonsense.
As to "competing kinds of justice," I'd buy to a point with one important proviso - we all must aim at "perfect/absolute" justice, regardless of how imperfect it may be at any given point in time. And to construe justice or wisdom as relative concepts is to do away with the pursuit of perfection.
24 - Clavos
Cindy #13,
The effect was actually that being a member of a certain group allows her greater insight into that group.
Read the quote as you posted it (which is accurate) again, Cindy. She says she "would hope" that the Latina woman would be able to "reach a better conclusion," without any qualification as to what the conclusion would be about.
25 - Cindy
Bar,
I read her speech. It does actually validate what I said in #13. That is what she is saying. It much the same as my own position. Which is probably why I understood her from the quote. I'll elaborate below.
It would if she were talking about judging fellow Latinas, but she wasn't. Read the speech.
I think you miss her point here. Her whole speech is a discussion of the voice of the marginalized. A quote:
"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."
She does believe that people from outside ones group can understand those in the group, but she notes that this takes effort. Some don't care to understand the needs of those outside their group, some are incapable.
She acknowledges the 9 white male judges who did do that. She wants to point out, also, the people of color and women who argued to win those seminal cases.
She has a very realistic position. It's honest and very non-utopian. She doesn't make the false claim that people are capable of perfect objectivity. She says that people bring the experience of their personal history with them and it influences what they see. That an effect may not be seen in any particular decision, but by having more marginalized people sitting on the bench, changes will be likely because of the different perspectives.
I particularly love the quote she made of her colleague, "...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."
I'm a bit shocked to see how much I have in common with this woman's viewpoint, who is a judge, as I don't really care much for judges. But these are very much the same as things I say here about marginalized and dominant culture all the time. I though the speech was phenomenal.
(note: Just so I am not putting words in her mouth, 'marginalized' is my preferred word. She uses the races and gender.)