It is beginning to look more and more that Elena Kagan will be President Obama's replacement for Justice Stevens' seat on the Court. This is true in the face of growing skepticism (see, for example, here, here, here, and here) about her nomination. These concerns are outweighed, at least on President Obama's mind, by the notion that she would be "a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions."
The little evidence we have on the Kagan-as-fearless-counterweight view is scant, yet hardly encouraging. In fact, it is the complete opposite. I have in mind here here what James Doty labels her "occasional obtuseness," or what she herself called "panic." The idea that General Kagan would be a coalition builder on the Court while serving as a counterweight to the conservatives justices is nothing more than "unsupported fawning fantasy."
In light of all of this, two questions keep turning up in my head. First, and for all the noise made about Kagan's qualifications, how far would she have gone in her life in the legal academy without the support of critical networks? And second, what does the fact that she is even a candidate to replace Justice Stevens tell us about President Obama's values and priorities, especially in light of his recent call to voters of color to come out and support the party in November?
Showing posts with label Sonia Sotomayor. Show all posts
Showing posts with label Sonia Sotomayor. Show all posts
Friday, May 7, 2010
Tuesday, July 21, 2009
Empathy, Racism and Our Highest Court
The Sotomayor nomination has taught me two things. The first is that the American public might in fact be dumb and dumber. The second is that Chief Justice Roberts might well be a racist.
The first insight came to me soon after the nomination became public, and the "wise latina" comment gained currency. Her comment was this: she "hope[d] 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." If I understand her correctly, these words must mean that judicial experiences affect the way one understands legal issues and arrives at legal conclusions.
If I am right about that, then I wonder: is that it? To say that the depth of one's experiences enrich one's approach to judging should not be controversial. This is true for any judge, whether Thurgood Marshall or Clarence Thomas, Sandra Day O'Connor or Earl Warren.
Does anybody seriously dispute that?
Yet a who's who of conservative punditry assailed her as a racist.
Is anybody out there stupid enough to believe that she is?
The second insight flows directly from the first. Recall here President Obama's stated intentions to appoint judges with "empathy" for the downtrodden. To the aforementioned critics, this is code for appointing activist judges.
To this charge, you can either laugh or cry.
This is actually an easy one. Consider poor, downtrodden Frank Ricci, the firefighter who studied for hours on end, spent a good chunk of money, aced his test, yet was denied a promotion after the city of New Haven threw out the test because of its racial impact.
The Supreme Court sided with Mr. Ricci, in a 5-4 decision delivered by Justice Kennedy and signed by the four remaining conservative justices.
To understand Ricci, it might help to read President Obama's words. Here is what he said:
On this argument, it appears that we also need somebody who's got the empathy to recognize what it is like to be a white firefighter in a world where the rules are stacked against you. Or something like that.
In fact, to read the Court's race jurisprudence post-City of Richmond v. Croson is to see a Court empathetic to the travails of white people, innocent victims trampled at the hands of a racist elite. It is hard to read it any other way.
I get it: it is empathy when applied to rulings we disagree with, but strict constructionism and "fidelity to law" when we agree.
Is anyone stupid enough to believe that?
This brings me to the Chief Justice and his record while on the Court. "In every major case since he became the nation’s seventeenth Chief Justice," wrote Jeffrey Toobin, "Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
To this list, we can add that Roberts has also demonstrated deep antipathy towards the interest of persons of color, on issues as far ranging as voluntary racial integration plans, voting rights, or hiring and promotion.
Which leads me to no other conclusion: if Judge Sotomayor is a racist for believing in the value of judicial diversity, what does his track record make Chief Justice Roberts?
The first insight came to me soon after the nomination became public, and the "wise latina" comment gained currency. Her comment was this: she "hope[d] 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." If I understand her correctly, these words must mean that judicial experiences affect the way one understands legal issues and arrives at legal conclusions.
If I am right about that, then I wonder: is that it? To say that the depth of one's experiences enrich one's approach to judging should not be controversial. This is true for any judge, whether Thurgood Marshall or Clarence Thomas, Sandra Day O'Connor or Earl Warren.
Does anybody seriously dispute that?
Yet a who's who of conservative punditry assailed her as a racist.
Is anybody out there stupid enough to believe that she is?
The second insight flows directly from the first. Recall here President Obama's stated intentions to appoint judges with "empathy" for the downtrodden. To the aforementioned critics, this is code for appointing activist judges.
To this charge, you can either laugh or cry.
This is actually an easy one. Consider poor, downtrodden Frank Ricci, the firefighter who studied for hours on end, spent a good chunk of money, aced his test, yet was denied a promotion after the city of New Haven threw out the test because of its racial impact.
The Supreme Court sided with Mr. Ricci, in a 5-4 decision delivered by Justice Kennedy and signed by the four remaining conservative justices.
To understand Ricci, it might help to read President Obama's words. Here is what he said:
You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.
On this argument, it appears that we also need somebody who's got the empathy to recognize what it is like to be a white firefighter in a world where the rules are stacked against you. Or something like that.
In fact, to read the Court's race jurisprudence post-City of Richmond v. Croson is to see a Court empathetic to the travails of white people, innocent victims trampled at the hands of a racist elite. It is hard to read it any other way.
I get it: it is empathy when applied to rulings we disagree with, but strict constructionism and "fidelity to law" when we agree.
Is anyone stupid enough to believe that?
This brings me to the Chief Justice and his record while on the Court. "In every major case since he became the nation’s seventeenth Chief Justice," wrote Jeffrey Toobin, "Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
To this list, we can add that Roberts has also demonstrated deep antipathy towards the interest of persons of color, on issues as far ranging as voluntary racial integration plans, voting rights, or hiring and promotion.
Which leads me to no other conclusion: if Judge Sotomayor is a racist for believing in the value of judicial diversity, what does his track record make Chief Justice Roberts?
Wednesday, June 17, 2009
Open Letter to Justice Kennedy (and all other "Classical Judicial Jurists")
Dear Sir(s) --
I noticed that the NAMUDNO opinion is not out yet. I assume this means that it is taking up a lot of your time. This appears to be a hard case. But it is not really all that hard. Let me help you.
These are your words, from the recent Bartlett case (decided in March of this year): "Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions." I agree. And so did Congress in 2006, by overwhelmingly extending the special provisions of the Voting Rights Act for another 25 years.
As you prepare to decide NAMUDNO, and whether these special provisions are legitimate exercises of congressional power under the Reconstruction Amendments, don't let it be said that you are not a classical judicial jurist, a judge for whom precedent matters. This is why you must uphold the VRA once again. You and Congress agree that a problem still exists, and Congress extended the VRA in an attempt to continue the fight against this very problem. The only way you could strike down this statute would be by disagreeing with Congress on the means deployed to combat this problem. But surely, to do so would be to disagree with precedents dating back to the founding, and as recent as a decade ago. So long as the ends pursued by the legislation are legitimate, the means need only be appropriate and "plainly adapted to that end." The only way you could strike down the statute, in other words, would be by disagreeing about the means deployed by Congress. In doing so, you would also disagree with rulings issued by all three preceding Courts. Don't let it be said that you are an activist judge.
I recognize that the various extensions to this law are now beginning to turn these provisions into a seemingly permanent statute. But this argument is nothing short of a distraction. As Attorney General Katzenbach told Congress in 1965, this statute is "strong medicine." Nobody takes medicine forever, of course. But it should be for Congress to determine when the need for the medicine ends, not the Court. And Congress just determined that the need still exists, for another 25 years. In Bartlett, you agreed that the ills that motivated Congress to act are still among us. And so to strike down these special provisions would be to impose your personal views and decide that these means, these provisions, are not necessary, or too strong, or who knows what. But that would not be an act of a court. That would be an act of a legislature.
As we prepare for the historic confirmation hearings on the nomination of Judge Sotomayor, we will hear and debate many views about what the proper temperament and disposition of a Supreme Court Justice should be. In this vein, this case should give us a window into the Roberts Court and the future of voting rights law. It should also help us put these upcoming debates in perspective.
Remember: this is not a hard case. Assuming, of course, that you are a "classical judicial jurist." Tell your friends.
Respectfully,
CD
These are your words, from the recent Bartlett case (decided in March of this year): "Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions." I agree. And so did Congress in 2006, by overwhelmingly extending the special provisions of the Voting Rights Act for another 25 years.
As you prepare to decide NAMUDNO, and whether these special provisions are legitimate exercises of congressional power under the Reconstruction Amendments, don't let it be said that you are not a classical judicial jurist, a judge for whom precedent matters. This is why you must uphold the VRA once again. You and Congress agree that a problem still exists, and Congress extended the VRA in an attempt to continue the fight against this very problem. The only way you could strike down this statute would be by disagreeing with Congress on the means deployed to combat this problem. But surely, to do so would be to disagree with precedents dating back to the founding, and as recent as a decade ago. So long as the ends pursued by the legislation are legitimate, the means need only be appropriate and "plainly adapted to that end." The only way you could strike down the statute, in other words, would be by disagreeing about the means deployed by Congress. In doing so, you would also disagree with rulings issued by all three preceding Courts. Don't let it be said that you are an activist judge.
I recognize that the various extensions to this law are now beginning to turn these provisions into a seemingly permanent statute. But this argument is nothing short of a distraction. As Attorney General Katzenbach told Congress in 1965, this statute is "strong medicine." Nobody takes medicine forever, of course. But it should be for Congress to determine when the need for the medicine ends, not the Court. And Congress just determined that the need still exists, for another 25 years. In Bartlett, you agreed that the ills that motivated Congress to act are still among us. And so to strike down these special provisions would be to impose your personal views and decide that these means, these provisions, are not necessary, or too strong, or who knows what. But that would not be an act of a court. That would be an act of a legislature.
As we prepare for the historic confirmation hearings on the nomination of Judge Sotomayor, we will hear and debate many views about what the proper temperament and disposition of a Supreme Court Justice should be. In this vein, this case should give us a window into the Roberts Court and the future of voting rights law. It should also help us put these upcoming debates in perspective.
Remember: this is not a hard case. Assuming, of course, that you are a "classical judicial jurist." Tell your friends.
Respectfully,
CD
Saturday, June 6, 2009
Lazy Stereotyping and Coverage of Sotomayor
We’ve seen the criticisms leveled at Judge Sotomayor before. In fact, they correspond strikingly with traditional American stereotypes of Latin Americans. In 1940, the Office of Public Opinion Research conducted a poll where respondents were given a card with 19 terms on it. They were asked to choose which term(s) best described Latin Americans. The results were as follows:
Dark-Skinned (80%)
Quick-tempered (49%)
Emotional (47%)
Religious (45%)
Backwards (44%)
Lazy (41%)
Ignorant (34%)
Suspicious (32%)
Friendly (30%)
Dirty (28%)
Proud (26%)
Imaginative (23%)
Shrewd (16%)
Intelligent (15%)
Honest (13%)
Brave (12%)
Generous (12%)
Progressive (11%)
Efficient (5%)
No answer (4%)
No opinion (0%)
A quick scan of major news outlets reveals that, 69 years later, commentators from across the political spectrum still trot out the same stereotypes to criticize Sotomayor.
The old stereotype that Latin Americans lack intelligence manifests itself today in questions about Judge Sotomayor’s qualifications, intelligence, and, writing ability. Despite her Bronx to Princeton to Yale Law pedigree and almost 11 years of service on the Court of Appeals, Ponnuru labeled her “Obama’s Harriet Miers.” Rove put it a bit more straightforwardly (at about :40) on Fox News: “I’m not really certain how intellectually strong she would be…she has not been very strong on the Second Circuit.” On the left, Turley posits that she doesn’t have the “intellectual throw weight to make a difference on the court.” And Liptak argues that her opinions lack some sort of rhetorical flair. They “reveal no larger vision, seldom appeal to history and consistently avoid quotable language.” Instead, they’re merely “technical, incremental and exhaustive,” as if these three adjectives combine to form a slur.
The characterization of Sotomayor as “quick-tempered” and “emotional” has been brought up time and time again, though it is generally couched as an issue of “temperament.” In the New York Times, Becker and Liptak called Sotomayor “sharp-tongued and occasionally combative,” echoing Rosen’s anonymous sources, who described her as “kind of a bully on the bench” and “domineering during oral arguments, but her questions aren’t penetrating.” Deeper within their article, however, Becker and Liptak point out that “some observers” claim her “blunt” style might actually help her stand up to Scalia. So she’s either an angry Latina or potentially “an able politician on the Supreme Court,” but an article casting her as the former makes for better headlines.
The deeper one delves into the blogosphere, the more ridiculous the arguments become. Over at the National Review Blog Corner, Krikorian offers a laughable criticism: by retaining the Spanish “So-toe-my-OR” emphasis on the last syllable of her name, Sotomayor is “insisting [up]on an unnatural pronunciation.” Apparently, this “is something we shouldn’t be giving in to,” because when choosing a proper pronunciation of your last name, Anglicized “conformity is appropriate.” Notice both the “we” versus them distinction and the implication that her “unnatural” pronunciation of her own last name is “backwards.” And finally, without a readily available Latin American stereotype, how does the most recent National Review cover (top of post) depict Sotomayor the “Wise Latina?” Easy. It slants her eyes and makes her Buddhist.
Politically, these off-base stereotypes are unlikely to gain much traction. Senate Republicans appear unwilling to launch extreme personal attacks on Sotomayor, if only because they cannot afford to lose more Hispanic votes. For example, Senators Sessions, Hatch, and Cornyn all pointedly disagreed with Gingrich’s claim that she is a “racist.” Nonetheless, it’s still troubling that these stereotypes arise in this context. On so many levels, Sotomayor is a historic nomination to the Supreme Court, yet many commentators just want to discuss whether she’s too feisty.
Friday, June 5, 2009
Tricky Ricci
I've been thinking a bit about Ricci v. DeStefano, the New Haven firefighters case currently before the Supreme Court and in the news because Supreme Court nominee Sonia Sotomayor was on the Second Circuit appellate panel that affirmed the lower court's decision. Conservatives have used Ricci as the poster child for the argument that affirmative action has gone too far and is outmoded, especially with a black president. They have also used it to try to undermine the nomination of Judge Sotomayor. With some exceptions, left of center commentators have not had much to say about the case, the facts of which appear hard to defend. But upon closer inspection, progressives should have more to say about Ricci than they've said so far.
First a quick recap of the facts for the uninitiated. If you wanted to be promoted to captain or lieutenant in the City of New Haven you had a take a written and oral test (the written test counted more than the oral test). The pass rate for the white test takers was double that of the colored test takers and the top scorers were almost all white. The City refused to certify the test, which meant that no one got promoted. Seventeen white firefighters and one Latino claiming racial discrimination. The City defended on the grounds that certifying the tests would subject them to a lawsuit from and liability to firefighters of color.
Ricci is interesting for a number of reasons. First, the case has a very compelling plaintiff, Frank Ricci. Ricci is dyslexic. He took time off from work, paid someone to read to him, and did extremely well on the exam. Straight out of central casting.
Second, the case seems grossly unfair. After Ricci and his fellow plaintiffs studied for the test and did well, the City looked at the racial composition of those who passed the test and then decided that it would scrap the test and not certify it. As Professor Fuentes-Rohwer would say, Uuugly!
Third, neither the district court nor the Court of Appeals gave this case the full treatment that it deserves given the very difficult legal issues that it presents. The Court of Appeals dismissed the case in favor of the City on summary judgment. (For the non-lawyer readers, this means that court believed that there were no issues for a jury because the law entitled the City to prevail on the facts.). The Court of Appeals panel first affirmed the judgment of the district court in a summary opinion. The full Court of Appeals then voted on whether to hear the case en banc (all the active judges on the court would participate as opposed to simply a panel of three). The petition for en banc review was denied (the appellate panel's decision would stand) and prompted a sharp dissent by Judge Jose Cabranes.
Fourth, there is the whole Sotomayor connection and not much more needs to be said about that.
As a point of departure, I'm in rough agreement with parts of Judge Jose Cabranes' opinion dissenting from denial of en banc review. Judge Cabranes raises two points that I find pretty compelling. First, it is not clear to me that the lower court was correct in dismissing this case on summary judgment. There seems to exist a question of fact as to why the City refused to certify the tests, which should have precluded a grant of summary judgment. Second, I also think that Judge Cabranes is correct that the Court of Appeals should have scrutinized the decision below more closely and offered its own independent analysis of the legal issues. By failing to give the case the full hearing it deserves, it looks as if both courts are trying to bury the case. Judge Cabranes' opinion was like a red flag for the Supreme Court inviting it to take the case, which it eagerly accepted.
I have no expectation that the Supreme Court will affirm the Second Circuit in Ricci. I fully expect another 5-4 opinion with Justice Kennedy playing Hamlet but reversing the court below. Nevertheless, I am not convinced that Ricci is ultimately the affirmative action slayer that conservatives make it out to be. As sympathetic as Frank Ricci may be as plaintiff, and I fully grant that he is a sympathetic plaintiff, it does not seem to me that one can sympathize with him without also being sympathetic to the African-American and Latino firefighters whose promotion prospects are more theoretical than actual.
While expressing sympathy for Ricci, denied an opportunity that he felt that he justly deserved, progressives should prompt a conversation about the causes, extent, and fairness of racial inequality. How can we be sympathetic to Frank Ricci who fought difficult circumstances to achieve his goal but we cannot be sympathetic for the black and brown kids who have to attend second-class schools, have extremely difficult home lives, and are more likely to die in a homicide than any other demographic group? Did the Frank Riccis in the New Haven fire department do better on that test because they worked harder, were smarter than their colored counterparts or are there structural disadvantages that account for significant disparate impact that we saw in those promotion tests? Should the City of New Haven use a test for promotion that would disqualify almost all of the Latino and African-American test takers? Is that our vision of a just society?
First a quick recap of the facts for the uninitiated. If you wanted to be promoted to captain or lieutenant in the City of New Haven you had a take a written and oral test (the written test counted more than the oral test). The pass rate for the white test takers was double that of the colored test takers and the top scorers were almost all white. The City refused to certify the test, which meant that no one got promoted. Seventeen white firefighters and one Latino claiming racial discrimination. The City defended on the grounds that certifying the tests would subject them to a lawsuit from and liability to firefighters of color.
Ricci is interesting for a number of reasons. First, the case has a very compelling plaintiff, Frank Ricci. Ricci is dyslexic. He took time off from work, paid someone to read to him, and did extremely well on the exam. Straight out of central casting.
Second, the case seems grossly unfair. After Ricci and his fellow plaintiffs studied for the test and did well, the City looked at the racial composition of those who passed the test and then decided that it would scrap the test and not certify it. As Professor Fuentes-Rohwer would say, Uuugly!
Third, neither the district court nor the Court of Appeals gave this case the full treatment that it deserves given the very difficult legal issues that it presents. The Court of Appeals dismissed the case in favor of the City on summary judgment. (For the non-lawyer readers, this means that court believed that there were no issues for a jury because the law entitled the City to prevail on the facts.). The Court of Appeals panel first affirmed the judgment of the district court in a summary opinion. The full Court of Appeals then voted on whether to hear the case en banc (all the active judges on the court would participate as opposed to simply a panel of three). The petition for en banc review was denied (the appellate panel's decision would stand) and prompted a sharp dissent by Judge Jose Cabranes.
Fourth, there is the whole Sotomayor connection and not much more needs to be said about that.
As a point of departure, I'm in rough agreement with parts of Judge Jose Cabranes' opinion dissenting from denial of en banc review. Judge Cabranes raises two points that I find pretty compelling. First, it is not clear to me that the lower court was correct in dismissing this case on summary judgment. There seems to exist a question of fact as to why the City refused to certify the tests, which should have precluded a grant of summary judgment. Second, I also think that Judge Cabranes is correct that the Court of Appeals should have scrutinized the decision below more closely and offered its own independent analysis of the legal issues. By failing to give the case the full hearing it deserves, it looks as if both courts are trying to bury the case. Judge Cabranes' opinion was like a red flag for the Supreme Court inviting it to take the case, which it eagerly accepted.
I have no expectation that the Supreme Court will affirm the Second Circuit in Ricci. I fully expect another 5-4 opinion with Justice Kennedy playing Hamlet but reversing the court below. Nevertheless, I am not convinced that Ricci is ultimately the affirmative action slayer that conservatives make it out to be. As sympathetic as Frank Ricci may be as plaintiff, and I fully grant that he is a sympathetic plaintiff, it does not seem to me that one can sympathize with him without also being sympathetic to the African-American and Latino firefighters whose promotion prospects are more theoretical than actual.
While expressing sympathy for Ricci, denied an opportunity that he felt that he justly deserved, progressives should prompt a conversation about the causes, extent, and fairness of racial inequality. How can we be sympathetic to Frank Ricci who fought difficult circumstances to achieve his goal but we cannot be sympathetic for the black and brown kids who have to attend second-class schools, have extremely difficult home lives, and are more likely to die in a homicide than any other demographic group? Did the Frank Riccis in the New Haven fire department do better on that test because they worked harder, were smarter than their colored counterparts or are there structural disadvantages that account for significant disparate impact that we saw in those promotion tests? Should the City of New Haven use a test for promotion that would disqualify almost all of the Latino and African-American test takers? Is that our vision of a just society?
Monday, June 1, 2009
Silly Analysis About Race
I was struck by a few paragraphs in reading this commentary for Time magazine on the Sotomayor nomination by Christopher Caldwell of the Weekly Standard, provocatively advertised on the cover of the magazine as "The Coming Showdown over Affirmative Action." The commentary is mostly bland except for two eye-catching paragraphs. Noting Sotomayor's role in a Title VII "affirmative action case" involving New Haven firefighters, Caldwell writes:
It is not clear to me why "racial preferences" are sophisticated as opposed to commonsensical and requires a Yale Law education as opposed to life experiences to understand. Take some commonsensical points of departure. Suppose that you are a person of color who grew up around other people of color in the barrio or in the inner-city. There you were surrounded by people of color that you deemed to be extremely smart and very hardworking, but who were also given few breaks in life. Indeed, you might be that person yourself; you felt that you always had to work harder than your white peers but received fewer goodies than they did. How would you think about an entrance test for becoming a firefighter or an exam that determined who got promoted up the ranks in which most of the candidates of color did poorly and the white candidates did well? Moreover, what would you do if the law told you that those types of disparate impacts were permitted only in very limited circumstances?
It seems to me that commonsense would tell you one of two things: either the candidates of color were stupid or lazy (option one) or the system was unfairly rigged against them (option two). Of those two choices, which one would be commonsense option, if you were a person of color and you grew up in difficult circumstances? My guess is that the commonsense option is option one.
After that illuminating paragraph, Caldwell went on to assert that the rationale for affirmative action, "that minorities are cut off from fair access to positions of influence in society . . . has been undermined, to put it mildly." That's not putting it mildly, that's putting it stupidly. One can argue that intentional race discrimination is on the decline and therefore so should affirmative action. That would be fair. One could argue whether the conclusion follows from the premise but there would be something to argue about. However, the naked and without evidence proposition that citizens of color have equivalent access to positions of influence is simply wrong.
Consider of a relevant marker of differential access, the education gap. 17% of black adults over 25 and 40% of Latino adults over 25 have failed to complete high school. The comparable number for whites is 9%. Black SAT scores in critical reading lag behind that of whites on average by about 94 points. You could find similar statistics for almost all levels of educational achievement; there is a definitive sometimes narrowing, sometimes widening but persistent gap. My guess here is, and this is only a guess, if you grew up in the barrio you would understand that it is unfair that people of color do not have the same access to positions of power than whites and you might even do something about it when the law requires you to. But that might make too much common sense.
Whether or not you like racial preferences, they involve a way of looking at the
law that is sophisticated rather than commonsensical. If the New Haven opinion is fair, it is the kind of fairness you learn at Yale Law School, not the kind you learn in the South Bronx.
It is not clear to me why "racial preferences" are sophisticated as opposed to commonsensical and requires a Yale Law education as opposed to life experiences to understand. Take some commonsensical points of departure. Suppose that you are a person of color who grew up around other people of color in the barrio or in the inner-city. There you were surrounded by people of color that you deemed to be extremely smart and very hardworking, but who were also given few breaks in life. Indeed, you might be that person yourself; you felt that you always had to work harder than your white peers but received fewer goodies than they did. How would you think about an entrance test for becoming a firefighter or an exam that determined who got promoted up the ranks in which most of the candidates of color did poorly and the white candidates did well? Moreover, what would you do if the law told you that those types of disparate impacts were permitted only in very limited circumstances?
It seems to me that commonsense would tell you one of two things: either the candidates of color were stupid or lazy (option one) or the system was unfairly rigged against them (option two). Of those two choices, which one would be commonsense option, if you were a person of color and you grew up in difficult circumstances? My guess is that the commonsense option is option one.
After that illuminating paragraph, Caldwell went on to assert that the rationale for affirmative action, "that minorities are cut off from fair access to positions of influence in society . . . has been undermined, to put it mildly." That's not putting it mildly, that's putting it stupidly. One can argue that intentional race discrimination is on the decline and therefore so should affirmative action. That would be fair. One could argue whether the conclusion follows from the premise but there would be something to argue about. However, the naked and without evidence proposition that citizens of color have equivalent access to positions of influence is simply wrong.
Consider of a relevant marker of differential access, the education gap. 17% of black adults over 25 and 40% of Latino adults over 25 have failed to complete high school. The comparable number for whites is 9%. Black SAT scores in critical reading lag behind that of whites on average by about 94 points. You could find similar statistics for almost all levels of educational achievement; there is a definitive sometimes narrowing, sometimes widening but persistent gap. My guess here is, and this is only a guess, if you grew up in the barrio you would understand that it is unfair that people of color do not have the same access to positions of power than whites and you might even do something about it when the law requires you to. But that might make too much common sense.
Saturday, May 30, 2009
Peggy Noonan on Judge Sotomayor
Peggy Noonan has written an op-ed in the WSJ that explains why Republicans need to stop demonizing Judge Sotomayor. It is one of the most thoughtful pieces I've read from someone on the right on Judge Sotomayor's nomination. This is so sensible, it is likely to be ignored.
Tuesday, May 26, 2009
Latin@ Justice
This morning, President Obama nominated judge Sonia Sotomayor to replace Justice Souter on the U.S. Supreme Court. And as expected, the blogosphere is abuzz with the choice. We know much about her story: a newyorican who went to
I do not know enough about Judge Sotomayor and her time on the bench to form an opinion about her judicial temperament or to take guesses about what kind of justice she might be. But I am glad that President Obama nominated not only a woman, but a woman of color. It is about time.
In thinking about this nomination, I am reminded of Chief Justice Roberts’ confirmation hearing, where he analogized the role of the judge to the role of an umpire. As the nominee explained to the Senate Judiciary committee, “My job is to call balls and strikes and not to pitch or bat.” No question, this is what judges should do, what we should expect them to do. But to say that a justice is no more than an umpire is not to say that all umpires are the same. As any keen baseball observer will attest, not all umpires are created equal. When calling balls and strikes, for example, each umpire calls the game differently. In fact, the strike zone itself is not an objective area, enforced equally by all umpires; rather, the strike zone changes from one umpire to the next, from one batter to another. Some have broad strike zones; some have narrow ones.
The implication of the analogy should be clear. As we look ahead to the work of the Court, it should be clear that different voices and perspectives should be represented. This term alone the Court will decide the scope of two important civil rights statutes, Title VII of the Civil Rights Act of 1964 and Section 5 of the Voting Rights Act of 1965. Could anyone familiar with these landmark laws really argue that the justices will decide these cases on the basis of anything other than ideology and their strategic calculations about how best to see their policy preferences reflected in law? That is, does anybody really – no, really – believe that judicial activism is reserved only for liberal judges?
Critics usually respond by placing merit and color consciousness in opposition. That is, Judge Sotomayor was nominated to the Court because she is a
After 240 years and 110 justices, the Supreme Court might finally welcome its first Latin@ amongst its members. For those keeping score at home, this would make it two Blacks justices, three women justices, and one Latin@ justice. I can only hope there will be many more to come. About time indeed.
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