My husband is a member of an all-male club that has an excessive devotion to pigs and where the men put their shod feet on the table at dinner. I have enough trouble keeping my tablecloth clean and do not mind being excluded from such a Club. But it would not occur to me (or, I should think, other women) to “ask to be considered for membership” when membership is plainly not open to women. Just as I don’t mind my husband’s club excluding women, I don’t mind Judge Sotomayor’s club excluding men.
But Judge Sotomayor minds very much when others discriminate, particularly against women. What is objectionable is her absurd contention that her club’s discrimination is not discrimination because “a man has never asked to be considered for membership.”
That calls to mind the opinion of the district court in the Ricci case, which was embraced by Sotomayor, that the City of New Haven didn’t discriminate against anyone, because no one was promoted. See, everyone was treated equally!
Whatever debate there might be over what the rules ought to be, there should be little dispute that judges ought to comply with the rules that are actually in effect. Let’s consider whether Judge Sotomayor has complied with Canon 2C of the Code of Conduct for United States Judges. Canon 2C states: “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” The commentary to Canon 2C provides this additional guidance:
“Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization’s current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Ass’n. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership.”
I’m certainly not going to contend that this guidance is crystal-clear. But my initial take is that none of the factors that would tend to excuse discrimination on the basis of sex are present in the case of the Belizean Grove.
The New York Times reports on a letter Sotomayor sent to the Senate Judiciary Committee along with some additional documents:
“I am a member of the Belizean Grove, a private organization of female professionals from the profit, nonprofit and social sectors,” Judge Sotomayor wrote. “The organization does not invidiously discriminate on the basis of sex. Men are involved in its activities — they participate in trips, host events and speak at functions — but to the best of my knowledge, a man has never asked to be considered for membership.”
She added: “It is also my understanding that all interested individuals are duly considered by the membership committee. For these reasons, I do not believe that my membership in the Belizean Grove violates the Code of Judicial Conduct.”
The code says judges should avoid giving the appearance of “impropriety” by holding “membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin.” An organization is said to “discriminate invidiously if it arbitrarily excludes from membership” on the basis of such factors “persons who would otherwise be admitted to membership,” it says.”
A few things are noteworthy. First, the condescension toward men — we let the guys come to party — is reminiscent of the “we let women be social members” excuses that exclusive men’s clubs routinely gave for decades – and which were scorned by women’s groups. Second-class citizenship for thee, but not for me. Got it?
Second, the line about “no one ever asking to join” is rich. Certainly if one declares the organization to be “all men” or “all white” or “all anything” those not in the “all” group are going to be dissuaded from seeking membership. Isn’t the mere statement of exclusivity enough to raise concerns?
Finally, by repeating the catch phrase “invidious” she suggests, but does not come right out and say, that even if these gals discriminate it’s not “invidious” because it’s women keeping out men and not the other way around. This is the noxious double standard that many minority clubs and organizations operate under. Here, it falls particularly flat. Certainly many men would love to have the opportunity to network with rich and famous women in positions of power. Their careers undoubtedly would be furthered if they could belong to a club priding itself on its sophisticated membership.
The resignation deprives Republicans from some fodder. And the resignation won’t end talk show chatter, but will deprive some senator of not voting for Sotomayor on the grounds she belongs to an exclusionary club. Men in public life wanting to advance almost always get in trouble for belonging to all-male clubs and are often pressured to quit.
Belizean Grove is an anachronism. Women have been governors, Supreme Court justices, cabinet secretaries, vice presidential nominees, serious presidential candidates, CEOs of Fortune 500 companies, and so forth long enough now that it’s taken as a given that sex isn’t a barrier to success in those positions. Still, it’s hard to see any harm to elite women getting together in a setting without men to network, commiserate, and let loose. Once she’s confirmed to the Supreme Court, there won’t be many opportunities for Sotomayor to do that, anyway, and taking away this release valve will do more harm than good.
As an aside, I’ve never understood what resigning one’s membership after having been nominated to some high office is supposed to accomplish. If there were something wrong with being in the club, how would that mitigated by resigning for political convenience? Sotomayor is an appelate court judge about to turn 55 years old; membership is hardly some youthful indiscretion.
I get that the uproar over this is a reprisal for the left wetting itself over Alito belonging to a men-only club, but isn’t this kind of … stupid? The hallmark of true discrimination is the shared sentiment that those who don’t belong to the empowered group are somehow inferior. Is that really what’s going on with (most) clubs that are restrictive by gender? It’s not a superiority/inferiority thing, it’s a gender-differences-are-relevant-to-comfort-levels thing. And before anyone yells at me, bear in mind that even our Equal Protection jurisprudence observes that distinction: Racially discriminatory laws are analyzed with “strict scrutiny, meaning that they’re (almost) always unconstitutional, whereas laws that discriminate by gender are analyzed with “intermediate scrutiny,” meaning they need to have a good reason to discriminate for a court to uphold them.
June 20, 2009...11:50 am
Belong To The Club, And They’ll Have Someone Like You As A Member
Sotomayor and Belizean Grove.
Wendy Long at NRO:
Ed Whelan:
Jennifer Rubin in Commentary:
Paul Mirengoff at Powerline
Sotomayor has quit the club.
Lynn Sweet in Politics Daily
James Joyner:
Allah Pundit:
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Tags: Allah Pundit, Commentary, Ed Whelan, James Joyner, Jennifer Rubin, Lynn Sweet, National Review, Paul Mirengoff, Political Figures, Politics Daily, Supreme Court, Wendy Long