Talking about Sotomayor, race, affirmative action, the Quote, Ricci and all the rest. Read the whole posts, not just the excerpts.
To reduce her full Berkley remarks to an inoffensive paean to experience and the limits of impartiality strikes me less as a fair-minded reading than an exercise in wishful thinking. But in any event, her remarks should not be divorced from the context in which they were delivered: she was speaking to a multiculturalist audience as a represenative of a judicial liberalism inclined toward group rights. It is appropriate to use her nomination as an occasion to debate that conception of justice.
Moreover, the demographics of this country have reached the point where racialist and separatist statements by nonwhites who aspire to high office have to be held to the same standard as those of whites. That doesn’t mean pretending that white men today have it as bad as blacks did under Jim Crow or whining about white victimhood. But it does mean that, as a matter of political norms, racial statements that would be inappropriate for a white man to make should be considered inappropriate for others to make.
I would go farther and say that I think she wasn’t just making an “inoffensive paean to experience.” Horror of horrors, she was expressing pride in her particular identity, much as many conservatives claim they wish they could do more freely with respect to theirs without being called racist or racialist or some other derisive label. What is their solution? To call Sotomayor by a name that they usually regard as a bludgeon unfairly used against them all the time. Not only will this gambit fail in the immediate confirmation battle, but it will ensure that the limits of expression become even more constricting and stifling. This is what I don’t understand: why would conservatives want to make it easier to categorize innocuous statements as racist and/or racialist? There is virtually no social policy debate in which matters of race are not involved to some degree, and many, if not most, conservative social policy views already have to meet a rather exacting standard to avoid such charges. Why make that standard even more demanding and impossible to meet? Why water down the definition of racialist such that it seems to include any and all acknowledgment of the significance of these differences? How well do you suppose conservative arguments in various policy debates will fare in the future if even Sotomayor’s unremarkable Berkeley speech must be described as racialist? Instead of giving more benefit of the doubt to all and loosening the conventional strictures on expression, we hear instead the call to clamp down even more obsessively on everyone. This is the most hare-brained application of “if you can’t beat ‘em, join ‘em” I think I have ever seen.
Matthew Miller at Race For 2012 notes the conversation:
But, if you’re still not convinced let’s try a little thought experiment. Imagine a Jewish person claimed to have a better appreciation of tyranny, because they grew up in a cultural millieu where the Holocaust was an ever-present memory. It would surely be wrong to call this person a racist; it would probably be wrong to call him wrong, unless lived experience counts for nothing. There’s nothing wrong, in the abstract, with admitting that background, even race, can alter perspective in meaningful ways.
The problem comes in when that notion is affirmatively applied to judging. Perspective should influence politics, values, etc; it shouldn’t influence justice. The legal system, especially the judiciary, is meant to impartially adjudicate disputes. It serves as a procedural backstop for the occasional wild pitcher in our more free-ranging political system. Larison is undoubtedly right that we can’t ever be entirely separated from our background; but if there’s any sphere of government where we simply must try, the judiciary is it. Sonia Sotamayor isn’t a racist. She simply doesn’t understand that she’s meant to be a bulwark against the tyranny of caprice, not an advocate for it. That is reason enough to oppose her confirmation without dredging up the racism charge. After all, to paraphrase John Adams, we ought to be a nation of laws and not of wise latina women.
Okay, here is how a reversal of the statement would read: “I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina who hasn’t lived that life.” The title of the speech? A “White Judge’s Voice.” (Or maybe a “White Judge’s Burden.”)
I am willing to bet that most people would regard the above statement as racist. If criticizing Sotomayor means we don’t get white judges who talk like this, even really conservative ones appointed by Republican presidents, I’m not really sorry about that. Sotomayor’s case is obviously more nuanced — there actually is a Latin culture and identity of which she is a part and entitled to celebrate, while a white person talking about the richnes of his whiteness (as opposed to his Scottish, English, Italian or even Southern heritage) is living in a white nationalist fantasy world — but as the country grows more diverse, the concepts of particularly white, black, and brown colors of justices become even less desirable. Sotomayor does not have to be an actual separatist or anti-white racist to contribute to a style of judging where race looms larger in our country’s legal system.
Jim might very well win that bet, because the word racist has been so overused and abused over the years that it is fast approaching the status of the word fascist to mean “someone or something I don’t like.” It has become one of a few catch-all labels used to express contempt, and it has become less of a descriptive term and more of a pejorative one. What most people would think about that sentence is a product of the social conditioning they have received for decades, which is the conditioning that conservatives normally find so irritating and which many are now reinforcing to back up an otherwise rather weak argument against a single Supreme Court nominee. Jim might continue the thought by saying, “Most people would regard the above statement as racist…and they would be wrong.”
More to the point, it is much less likely that Americans will be able to “celebrate their rootedness in unique, decentralized communities,” if they are going to be able to do this at all, if Americans of all backgrounds are confronted with social stigma and ostracism for expressing pride in their roots and communities. The question, then, is why those conservatives who presumably could see some virtue in “rootedness in unique, decentralized communities” should be so scandalized by statements that reflect positively on particularity and diversity. Indeed, one of the main things that is so deeply troubling about official celebrations of diversity is that they are so very often wedded to programs of political centralization and uniformity.
Nobody as far as I can tell has criticized Sotomayor for expressing pride in her roots and her community. What has been at issue is her sustained argument with the idea that a wise old man and wise old woman can meaningfully strive for the same impartial justice — and her conclusion that a wise old Latina woman could make “better” decisions. Sotomayor’s remarks are preferable to other multiculturalist pronouncements in that she expresses pride in an actually existing culture rather than a generic celebration of non-whiteness. But at its root is a point of view where some cultures and heritages can be celebrated while others cannot (some are in fact denigrated).
That means we get to hear the good news about mass immigration but not the bad, celebrate the fruits of diversity but not question whether the New Haven firefighters are getting shafted, and talk about the richness of communities so long as they were not built or inhabited by dead white males. In the real world where this ideology has been in vogue, expressions like Sotomayor’s routinely coexist with accusations of racism against conservatives. I’d like to hear of an example where it has ever been the other way around.
Larison, responding to the first sentence in the excerpt above:
No, Limbaugh and Gingrich have just called her a racist and declared her unfit to be a judge because she has done so, because these people have mistakenly read her statements to say something that they do not say. (I will not dwell on the more direct whining about the pronunciation of her name or her culinary preferences.) No criticism of her pride to be seen here–move along! Contra Antle, I am not “trying to shoehorn” Sotomayor’s remarks “into a context of particularism and a paleoconservative understanding of diversity.” I wouldn’t dispute that she was speaking in a context of “multiculturalism, critical legal theory, and more mainstream forms of judicial liberalism.” Clearly, she was. As Jim keeps reminding us, she was speaking at Berkeley’s law school, and she is indeed a judicial liberal, albeit evidently not the fire-breathing radical sort that some of her early critics imagined. However, I would reject entirely the idea that she is espousing racism in the process, and I would insist that conservatives who have sympathies for particularism and decentralism ought to criticize Sotomayor for just about anything else besides her statements about her identity, which Jim has halfway admitted she is “entitled to celebrate.” Her critics keep talking about what would have happened to a white man had he said something comparable. Well, consider what is going to happen in the future to anyone on the right who expresses even a smidgen of pride in his culture or heritage after the blatantly unfair interpretations her words have received.
She is perfectly entitled to be proud of where she comes from, who her family is, and what her experiences have been. She is entitled to celebrate that in the public square. What she is not entitled to do, in my view, is to argue that there is a specifically Latino way of judging if she wants a seat on the Supreme Court. There is never any shortage of boneheaded statements on the mainstream right and Larison may have found some regarding Sotomayor that I’ve managed to miss. But the bulk of criticism of her Latina lecture that I have seen — and certainly the entirety of my criticism — has not been her discussion of her background. It has concerned her arguments with Miriam Cedarbaum and Sandra Day O’Connor about impartiality and race neutrality.
As promised, here is the last Sotomayor post in my discussion with Jim Antle. Concerning Jim’s remark that we have begun repeating ourselves, I agree that it does seem as if we have spent much of the time talking past each other. It is almost as if our perspectives were informed by sufficiently different experiences that shape how we analyze and judge the very same materials and facts. Acknowledging this as a real factor in judgment does not make one a believer in things called Antle Logic and Larison Logic. It also doesn’t mean that there is not an interpretation that is more valid than another–not all frameworks are equal. One reading does do more justice to the text than the other, but it seems that consensus is unreachable at this point. From each perspective, the correct interpretation seems obvious, and it is mystifying to each one why the other person cannot see it. Meanwhile, the pitfalls and dangers of the distorting effects of the other’s framework are only too clear. Jim is wary of a breakdown of a certain universal rationality, and therefore finds in Sotyomayor’s remarks a defense of “a specifically Latino way of judging.” I tend to see far less danger arising from a synthesis of the particular and the universal, and so I do not detect any hint that she has posited the existence of “a specifically Latino way of judging” in the way that Jim seems to mean it.