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Sotomayor, objectivity and the GOP

Eugene Robinson nailed it in his Washington Post column this morning on the first day of Sonia Sotomayor's confirmation hearings.

Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity"--black, brown, female, gay, whatever--has to be judged against this supposedly "objective" standard.

I sat yesterday listening to Senators Jeff Sessions, Jon Kyl and others express their misgivings about and disagreements with Sotomayor's views on objectivity, personal perspective and other such matters, and I wondered in what cocoon these men have been living. They truly do seem to assume that an objective viewpoint apparently embodied in white males is the default, and any perspective other than that is an outlier.Too bad they could not have been exposed to some of the debates and discussions that have taken place in newsrooms over the last quarter century, as journalists tried to expand their frames of reference and account for events in their communities that seemed to defy explanation by reference to their usual experiences."Denying the fact of identity makes us vulnerable to its most pernicious effects," Robinson wrote. "This seems self-evident."To everyone, it seems, except the Republican members of the Senate Judiciary Committee. It would appear that as far as they are concerned, denial has worked just fine.

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I thought Sotomayor's defense this morning of that coment was that a person of minority status can make as good or better judicial judgements -race is not the issue.Most of the crirtique of her along this line is playing to a base that is living in the past Mr. Wycliff notes.

Robinson couldn't be more wrong-headed. The point isn't that "white-maleness" is somehow neutral. In fact, the point they are making is that anyone's whiteness or browness or maleness or femaleness or Russianess or Latinaness is, or should be as irrelevant to the decision making process of a judge as possible. They aren't saying that their point of view is "neutral" and Sotomayor's isn't, they are saying no one's point of view is neutral. The law, however, should be.

They arent saying that their point of view is neutral and Sotomayors isnt, they are saying no ones point of view is neutral. The law, however, should be.Sean,It doesn't seem to me anyone is contending that her body of work as a judge, all available for scrutiny, is flawed. They are picking on a few remarks she made in speeches. Shouldn't they base their evaluation of her on her record?

"Republicans outrage, both real and feigned, at Sotomayors musings about how her identity as a wise Latina might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity."This is stating the obvious, but Mr. Robinson's straw man is not based on any real Republicans I am aware of. The "outrage" is not about the "wise Latina" part of the comment, but the "better" in the later part of her oft-repeated statement ("...more often than not, reach a better conclusion than a white male...").

MAT, the great thing about ignoring the context of what Sotomayor said is that it makes it possible to distort her views in several different directions at the same time. You can misunderstand her as if she were alleging supremacy, while others can claim her background simply makes her much too partial. Robinson is exactly right, I think, and the sad thing is it's not like no one's made these points already (I linked to a few other commentaries last month). I can't believe this is still a "controversy."

Jeffey toobin on CNN last night made the point that the party not in power will attack a nominee on ideological grounds.He added it would be good if we could really talk about how ideology should fit in this process.

"I cant believe this is still a controversy."Still? Didn't the hearings just begin today? We can at least pretend the Legislature functions independantly from the Executive branch for the sake of people like me, can't we? Ignorance is bliss and all that.

I'm not sure what you're getting at, MAT. My point is that this foolishness surrounding the "wise Latina" remark -- which began the instant her nomination was announced, and should have been set aside later that day (once everyone had a chance to read the whole speech) -- would have run its course by now, so the hearings could focus on legitimate matters like her record and her competence as a judge.

"Im not sure what youre getting at, MAT. My point is that this foolishness surrounding the wise Latina remark...would have run its course by now..."Getting at? What do you mean? All I am saying is given that today is the first day of the hearings, it is perhaps not reasonable to expect questions regarding these remarks to have run their course since the Judge has not until today been asked about them on the record and under oath by Senators who think it in the best interests of their constituents to ask them.

Amateur observer that I am, I suppose that Republicans, knowing that Sotomayor's confirmation is a fait accompli, are merely posturing for the 2010 elections. Presumably affirmative action plays well as a bogeyperson for some constituency or other that is thought to be up for grabs.FWIW, I spent the last week tramping about the landmarks, museums and palatial Department headquarters of DC, children in tow. On Saturday, there were signs posted around the perimeter of the Capitol grounds, explaining how the general public could obtain tickets to attend the Sotomayor confirmation hearings on a first-come, first-serve basis. Pretty cool that an average dope like me could, by virtue of being an early bird, get to watch this historic proceeding in person. This is a great country.

"it would be good if we could really talk about how ideology should fit in this process."I thought that is what this discussion was. Republicans are proposing efficiency in the courts, with a judge apparently is to apply the law mechanically, without personal input.Obama has proposed that a judge must have empathy to hear and understand the positions advocated, then make a decision based on his understanding.That is a pretty clear discussion of how ideology fits into the judicial process, at least in one sense.

Jim P.--While you were tramping about DC last week, I hoped you stopped in to the Smithsonian's Air & Space Museum and saw the full mock-up of the lunar lander...since, according to your post on another thread, you slept through what is considered one of the two or three most important events of the 20th century. :)As for Sotomayor, I was bothered more (though not bothered too much) by her off the cuff remark during another speech that judges make "policy." She knew immediately that the remark was a problem because she quickly uttered words to the effect that maybe she shouldn't have said that.

Hi, William, most of the family made it to Air and Space, but one of the children was ill that day, so I offered to stay back in the hotel room so my wife could go. So I'm still oh-fer on matters lunar :-(. (Well, not completely. Sometime ca. 1972 I waited in a very long line under a hot sun at our local national guard armory to view rocks brought back from the moon. My not-yet-adolescent mind imagined ruby- and emerald-encrusted marble formations, but they turned out to be khaki-colored pebbles. Ah, well, perhaps Venus will have a more alluring geology - with a name like that, it's hard to see how she couldn't!)

David,I expect the Republicans to be far more civil and fair with Judge Sotomayor than the Dems were with say - Bork, and Thomas, and Estrada. I was only pointing out that Mr Robinson's premise that they were questioning her from a position of white male "neutrality" is utter nonsense.I am on record here as supporting her not because I agree with her, but because she is qualified and her side won the election and I expect many if not most GOP senators will as well. Would be nice if the other side would do the same.

Sotomayers comment about a wise Latino woman arriving at different decisions are derived from important cultural theories regarding whiteness. In a nutshell, as a result of her experience as a racialized minority, she possesses a dual knowledge that white (presumed to be priviledged) category of people do not need to possess. It is optiona knowledge for "white"l, it is not optional for her. What she is saying is that she is able to use that kind of dual knowledge in a way that others cannot.Of course she has attained other privileged status (Ivy League) education that she can also deploy and which serves as a means for her to articulate her point. I respect and honour her political commitment and believe that it is animated by a good Catholic social justice perspective.And she also deploys the application of law that all justices do.I see nothing wrong with her raising the wise Latino comment. I get it and I think it should be discussed in that context as it is important political, social, cultural and even legal commentary.What I dont get is that there is universal consensus that the court should be more diverse. Joe Biden who for years was chair of the judiciary committee said he would like to see someone who was elected dog catcher in the court (and he was dead serious he said). He meant real live experience with the lived experience of most people in the US.I wholeheartedly agree. Still, it is telling that when push comes to shove we need ensure that the right people (and rightness or in this case whiteness) is determined by going to all the privileged schools and associations.I am not saying that there is anything at all wrong with the nomination or her.I am saying that I think the comment needs to be taken up in the context in which it was intended. Namely issue of class and priviledge that plays itself out in American society all the time!!!!

It seems to me that Judge Sotomayor's "wise Latina" remark is indeed thoroughly inconsistent with her very balanced record as a judge. Does this really need a lot of explanation? I think not. Even ery smart people sometimes say dumb things, inaccurate things they don't really think.For instance, in a philosophy of science class I attended a distinguished physicist and historian of modern physics was guest lecturer one class. In the course of his lecture he made a statement about a physical theory that was clearly false. A mystified student asked if he meant what he said literally, and the poor man was thoroughly embarrassed,thanked the student for the correction and apologized profusely for the mistake. Now ask yourself -- why is it necessary to edit your posts? If you're like me it's because sometimes the first words out of your mouth aren't really exactly what you mean to say. How the psychologists would explain these gaffes, who knows. But they happen.Moral: the prepondance of evidence indicates that Judge Sotomayor will be a particularly unbiased justice.I too would like a discussion of the role of "ideology" in legal decision making. It seems to me term is very ambiguous,

Ann:Your last question (not ideology but class, gender and ethnicity) was precisely the issues that Judge Sotomyer was discussing in her presentation where she made the now infamous "wise Latino" remark.I think this is a very legitimate debate and discussion and her text can be found here. http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewant... is a snippet of her presentation:"Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based."HERE is where Judge Sotomayer differs (and on this point I am in large agreement with her).Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.But that is not to say that minorities (or Catholics) are monolithic. THAT would be reductionistic and naive."No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, 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. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.'At issue, I suppose is the issue of Catholic faith. It is a concern but I think most people have accepted the secular idea (cf. charles Taylor) that religion can be privatized. Whether that is true or not is another matter but I doubt you will see public conferences where this is discussed. However, if you did I bet that you would have people argue their faith is as much a part of them as Sotomayer articulated her culture was. Not that it is determiinative of how one might vote or judge but it is a factor.As you are fond of saying Anncomplexity, complexity, complexity

You may or may not be aware of this, but for the record there were more than one occasion that she used such words. As mentioned by Dahlia Lithwick today:But then we learned late last week that Judge Sotomayor chose to use those or similar words more than once; indeed, by one count, seven times. Suddenly Sotomayor's defenders went dark. For all of the efforts to justify and rationalize and contextualize her 32 words, their repetition over the years sure sounds like a blanket claim that Latinas make better judges than white guys. And that's kind of a big deal for liberals who purport to believe that race and gender don't generally make one "better" at things.http://www.slate.com/id/2220225/From Jeffrey Rosen:But after the Senate Judiciary Committee released Sotomayor's complete list of speeches, it emerged that she had delivered many versions of the same stump speech seven by one count between 1994 and 2003. In all of them, she suggested that a judge who was a "wise woman" or a "wise Latina woman" would issue a better opinion than a male or a white male judge.http://www.time.com/time/politics/article/0,8599,1903981,00.html

There's plenty of ongoing coverage of the hearings over at Slate. From one post called "Sotomayor vs. Obama":One other note: Sotomayor has totally thrown Obama overboard. Asked whether she agreed with Obama's claim that because Supreme Court cases are so difficult judges often have to rule with their heart, Judge Sotomayor disagreed: "I wouldn't approach the view of judging the way the president does." Later, she said, "It's not the heart that compels; it's the law." So Sotomayor disagrees with part of the criteria used to select her. But I'm pretty sure she'd still vote for herself.http://www.slate.com/id/2222736/entry/2222883/

When I raised the ideology issue, it was to say that what's transpiring is at best a ritual dance of (as in previous hearings) for the party out of power to attack and the party in power to show how good its choices are.Stephen L. Carter had n op-ed in the Sunday NYT a while back tracing this process back to the civil rights days and divisions. An NPR report yesterday also noted how the closed hearing question process grew out of Clarenc eThomas?Anita Hill matter.My point was that the ritual is more of the adversarial game than real service to the American people, as much of the posting and some postuting here tends to demonstrate.(Deep ideological divide continues, as in the Church, to fester and make mature deliberation and movement forward harder.)

Perhaps it is the crackpot in me, but I think the "ritual dance" serves to illuminate the ideology. With the last 3 nominees, we have seen an assertion, especially on the part of the Republicans, of the importance of "settled law" and an antipathy toward judges making policy. This has reached a new height with our current nominee, as the insistence is to oppose "empathy" and emphasize law as the only standard for making a decision.With this, any hope of overturning Roe v. Wade has clearly vanished. Republicans have established themselves as upholding the status quo, standing by past decisions and laws as binding. Empathy and natural law will not play a part in their future decisions, pretty much precluding any dramatic arguments against abortion rights. There may be some outlying argument that will take precedence over these things, as "privacy" prevailed 35 years ago. In these hearing a Republican tried to connect the right of privacy to the right to own guns, expanding rather than weakening privacy rights, and probably making it harder for Republicans to argue against privacy on almost any grounds.IOW, the hearings have hardened the Republican position in favor of Roe v. Wade. It may be indirect, as a hardening of support for "settled law" of which RvW is a part. That is a change in ideology, or maybe a highlighting of a latent ideology that has long worked against the pro-life movement. I think it is significant.

I continue to rely on the "ritual dance" understanding of the posturing now blissfully ending -by the way, see David broder's op-ed in many papers today, including my own, The New Mexican.