With the nomination of Sotomayor, we have heard many Hispanics saying they are thrilled at her nomination because she will give Hispanics a "voice" on the Supreme Court. Comments such as this are about as evil as one can imagine in a complex, advanced civilization such ours, so deeply rooted in the worst aspects of tribalist thinking as they are. I don't need poor, Southern white men on the Supreme Court to have a voice, and my wife doesn't need poor, Mexican-American women on the Supreme Court to have one, either. In fact, if you wanted to represent me on the Supreme Court, you could probably not make better choices than either Walter Williams or Thomas Sowell. They are going to represent me in the only way that matters.
But let's look at this from a different angle, to see what utter nonsense this really is. My world view is probably not fundamentally different from that of Frederick Turner's. The two of us developed the same world views completely independently of each other, with no influence in any way, shape, or form on each other until we met when I entered graduate school at UTD and became his student. Turner was born in Scotland to Victor and Edith Turner. Victor Turner was one of the greatest anthropologists to ever live (if his presence in every book of anthropology I have ever seen is any indication). Fred was raised a relatively privileged life, notwithstanding his childhood in Africa with the tribe his father studied. His parents were atheist Marxists, though they gave up being atheists and converted to Catholicism in England, when they returned. Fred went to great schools, including getting his degree at Oxford. Fred immigrated to the U.S. and became a citizen. Over time, he came to support free market economics, and is very active in the intellectual arena of libertarianism. He also actively uses evolutionary theory in his scholarly work. One day in class, Fred asked everyone to tell a little about themselves. Fred knew about my own world view by that time, so when I pointed out that I was raised in rural Kentucky by a father who worked in coal mine (and was a UMWA member) and only went to 8th grade, went to rural Kentucky schools, was raised Baptist (and a creationist), but that I went on to college to major in recombinant gene technology (at a small Kentucky college, WKU), Fred looked right at me and said, "How on earth did the two of us come to the same conclusions?" Indeed. Frederick Turner and I both have the same fundamental world views -- and, I would suggest, would have the same judicial philosophies. We have completely different backgrounds. But what does that matter when it comes to sensibly viewing the world? Or not?
13 comments:
I thought about this some more. Isn't Sotomayor saying what I've been given (born into poverty) allows me to compete and do as well and better as some one else the essence of self-reliance, and hence conservative. Isn't saying that her background (Bronx projects; NYC Catholic or public schools, being suspect in some eyes because of her skin color) taught me things that enable me to do as well (or better) as someone born in Greenwich who attended Andover? Again, this is simply self-worth and setting standards for one's self and not making excuses.
From a lawyer's point of view, Sotomayor is actually pretty conservative. I am a lawyer and back in 1988 (87?) I wrote numerous submissions to the Senate judiciary committee in support of the Bork nomination as part of a group of volunteers formed by Leonard Garment. The reason I supported Bork's nomination is basically the same reason I support Sotomayor's which is that he had adopted a structured and principled set of constraints on the expansion of equal protection and substantive due process. I believe Sotomayor is very close to Bork in this regard. I also think that they share restraint in using common law techniques to superimpose meaning upon legislation. Conservative lawyers who study Sotomayor closely will come away surprised. You may (or may not) recall that several constitutional law professors who were well known Democrats (John Ely, Henry Monahan) testified in support of the Bork nomination. There are some conservatives stepping up in support of Sotomayor, but not the volume there would be if they made an effort to understand her juriprudence.
For a judge not to be conscious of her or her own background is professional incompetence. Obviously, we all harbor unwarranted biases. Judges are in the business of excluding their unwarranted biases from their decision making in the cases before them. Unless a judge operates from a sense of how his (her) background might be effecting his her decision-making, he (she) cannot possibly hope to root out that bias and see past it.
Thank you for your response to my earlier post. My pleasure.
I agree with the last part you said, but her statement does not suggest she believes that at all. Let's take a look at her statement:
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.”
We see in her statement a stereotype of Latinas. As though all Latinas have her "richness" of experience. This is already a broad brush in her statement. It may be true of her, and of my wife, but there are plenty of Latinas out there who lived quite privileged lives, whose experience is little different from those of a "white male." ON the other hand, there have also been a lot of Latinas out there who lived those lives and who didn't gain an ounce of wisdom from it.
Let's flip this. She is also saying that a white male of privilege cannot be wise because of his privilege. This, too, is nonsense. There is a long history of privileged, wise people. And richly experienced fools.
Now let's do another flip. Let's reverse some things in the sentence:
a "wise white man with the richness of his experiences, would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.”
When stated that way, doesn't it sound, well, racist? Sexist?
As for her judicial philosophy, I do hope you are right. Her defense of age discrimination by unions on the basis of "well, that's what unions are for" doesn't encourage me in the least. Would she defend men-only social clubs on that basis? If not, what not? On what basis does she make this defense? If she based it on her "rich experience," I'm not thrilled. If she based it on the 1st Amendment right to assembly, maybe we can talk.
I don't understand the logic of your flipping. I suspect that arguing about supposed converses of what Sotomayor said is intellectually dishonest. But try these thoughts on. If a rich person born into privilege says "to whom much is given much is much is expected" I don't see what's offensive about that. I think may be the proper contraposition (to use the term loosely) of what Sotomayor said. If a latina born to poverty says my background means I am entitled to special dispensation, I think that can be offensive in some contexts (but that's the opposite of what Sotomayor said). And of course the rich, the white and the male all are subject to believing that they are superior beings (some, of course, have been intimidated out of thinking it outloud). For someone to be born with enormous privileges (wealth, white skin, sane parents) and not to have some humility about the role fate and chance played in his well-being, that too is offensive (but again, Sotomayor is saying my apparent bad luck in these matters, wasn't really bad luck after all).
But this is sort of silly. A Supreme Court nominee is about to be vetted by the Senate, and this is obviously important to you (as it should be). Sotomayor has made remarks that offend you and provide superficial sound bites. However, those remarks can't possibly be all that important given the volume of decisions you have to look at to give you a real sense of where she stands. You allude to yourself has having a judicial philosophy. I know its hard to encapsulate a judicial philosophy in a few sentences but I'd wager that if you attempted to enunciate it, I could show you how Sotomayor's approach (I don't think she really has a philosophy) has more affinity with your own judicial philosophy than Scalia's pronounced philosophies.
I actually think your background and Fred's are not as dissimilar as you might think and he may have suggested. Knowing Fred, he was probably observing in your case an apparent conflict in your respective backgrounds; surely he would see the similarities too. To ignore background is to ignore all cultural effects, which though lesser than natural(given)are nevertheless effective to some degree, part of the whole. Backgrounds which in Fred's, your's, Sotomayor's, and my own life appear to have been great different in cultural imput actually share a great deal: a juxtaposition of the "gritty" (your coal-mining, Sotomayor's Bronx, Fred's African childhood, my own raising of nine children) with the intellectual (your father's gene therapy research, Fred's parents'input, Sotomayor's law, my family's culture of scholarship andintellectual curiosity) yields people who have stretched themselves or have been stretched in similar ways, into similar perspectives on politics: questioning, open-minded yet principled, by nature curious, my experience wise. Robert Frost's perspective is very similar and for the same reasons--the superimposition of the gritty with the intellectual.
Eric,
You are putting things in her mouth that she didn't say in that quote. While she was certainly thinking of herself as a "wise Latina woman" (nobody is wise who thinks themselves such), the statement was broad. She was referring to herself, but not only to herself. Also, she makes no mention of the white men being rich or privileged or anything of the sort. It's a blanket statement: white men. The qualifier "who have not had that experience" is also vague, since presumably Latinas have a wide variety of experiences. Her statement presumes they all have the same experience, which only shows she buys into the stereotypes regarding Hispanics. Not too wise, in my book.
I think such things matter because it matters if you think in groups or not when it comes to the law. I want my justices to be racial- and gender-blind when it comes to the law. A statement such as this shows that she does not think individualistically, but collectivistically. As does the union quote. Those who think collectivistically grant privileges. And that is something I don't want any justice to do.
My judicial philosophy could be summed up as such: Strict constructivism when it comes to the Constitution. If people don't like the Constitution's wide-ranging restrictions on government, they should change it, not have judges invent things that aren't in there. Equality under the law. Rule of law. Not all law is legislation, but it should be something a true majority (not one cobbled together from coalitions) actually believes in. The law should be able to evolve in response to changing conditions, but stay within a tradition.
Unfortunately, legislation is too often thought of as law, and legislation has not changed according to changing circumstances, but rather has changed much faster.
Mary,
My father never went to college, and is still a coal miner. Lost his arm in a mining accident when I was in high school. I was the one who studied molecular biology despite being raised a creationist in a Baptist church.
But I do get your point: there are deep structural similarities. Indeed. But in a sense, you actually kind of prove my bigger point. By saying Sotomayor and Fred and I and you all share deep patterns of background similarity, Sotomayor's statement is shown to be even more ridiculous. More, it brings the statement back to sounding racist and sexist.
And, yes, I do think such statements are important. They expose a person's world view. I don't want someone who thinks they are better able to understand written texts because of their race, gender, or any other aspect of their backgrounds that don't include their training to analyze texts.
Hi Troy. Thanks for your response. I was pretty sure you would endorse some form of strict constructionism. As you undoubtedly know, many conservatives (those with less intellectual integrity than you) were strict constructionists when the target of equal protection challenges were laws that disfavored blacks in the south or laws that limited a woman's right to an abortion. These same conservatives become highly activist when the legislation (or administrative action) is not to their liking. I am glad to see you are not just a strict constructionist when republicans control congress. Any way, the real world intervenes, and since my intention is to convert you to becoming a supporter of Judge Sotomayor, this is going to take a little time, but I will get back to you as soon as I can. Thanks.
Claiming you are a strict constructivist and being one are two different things. The addition of the 14th amendment was supposed to clarify the race issue in the states -- though the subsequent decisions that allowed the establishment of racist laws only goes to show just how far back SCOTUS ignoring the actual words of the Constitution, let alone the intent behind them, goes.
As promised –
First I would like to applaud Newt Gingrich’s retraction of his charge that Sotomayor is a racist. Unfortunately, I doubt that Limbaugh is going to follow suit. Whether Gingrich can reclaim any of his status as a thinking person’s Republican remains to be seen. Gingich’s retraction seems to underscore that conservatives should be extremely sensitive to the difficulty of refuting the “racism” charge, no matter how implausible it might have been.
Back to Sotomayor. There’s been much written lately and I am not going to repeat what you either have read – or could easily read – on line, but I don’t really think that it can be denied that Sotomayor is far close than any GWB appointee to the Supreme Court to a “judicial philosophy” of “strict constructionism” and one which does not expand 14th amendment protections beyond (or much beyond) the original core purpose of outlawing governmental race discrimination which you mentioned in your own comment.
Strict constructionism of variety you mention is derived from Carolene Products decision, at footnote 4. Footnote 4 states:
“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…
“It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.
“Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
In the hands of scholar like John Hart Ely (and to a degree Judges like Beyers), “foot note 4 jurisprudence” has “strictly construed” the equal protection clause so that scrutiny of legislative classification is deferential (the legislation is presumably valid so long as some rational basis can be proffered for it. Practically, this means that unless a racial classification (the original purpose of the 14th amendment, as you note) or other similar “race-like” suspect classification is involved (nationalities, religious minorities) the legislative classification will be upheld. If a suspect classification is involved then only then will the Court consider the actual motive behind the legislation or the question of whether the legislation is a good “fit” or “means” to the stated purpose of the legislation Sotomayor seems to be “strict constructionist” of this variety as reflected by her decision in Center for Reproductive Policy which upheld restrictions against foreign organizations receiving federal funding if they performed or supported abortions on the grounds that the challenged restrictions “involved neither a suspect class nor a fundamental right,” and commented that “[T]here can be no question that the classification survives rational basis review [i.e., – “lower tier” scrutiny]. The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.”
Continuation of prior comment (I went past 4096 characters).
Similar examples from Sotomayor’s decisions are far too numerous enumerate here. In assessing Sotomayor as a potential Supreme Court justice, it might be relevant to you that in a study of 50 cases in which Sotomayor has written on race discrimination claims, she has favored the defendant 47 times. http://www.scotusblog.com/wp/judge-sotomayor-and-race/ You have probably read about her decision in Pappas v. Giuliani, where in a dissent she argued that the NYPD had violated the First Amendment rights of an NYPD employee who had been terminated for disseminating white supremacist literature from his home and – given the fundamental 1st Amendment right involved – disputed the NYPD’s presumption that this activity interfered with his job was rational.
There are pages of similar arguments that could be made to show that Sotomayor is a strict constructionist and hardly a racist.
I’ll get back to you in a couple days on how Justice Scalia is an anethma to strict constructionism and the proponent of a jurisprudence that is ultimately in conflict with states rights and any sort of libertarian philosopy.
PS - Having just re-read Gingrich’s comments, I am wondering whether you are interested in retracting your own charges that Sotomayor is a racist?
I've been away for a while, due to a family emergency, and I don't know when I can get back, due to my going to a colloquium on Hayek for a week. Right now I'm in a hotel lobby responding to this. So I will have to spend some time, when I have the time, looking at the overall decision before I can make a judgment. I need more context.
I will make a retraction of sorts, though I suspect you won't much care for it. SInce I cannot know the nature of Sotomayor's being, I cannot say she IS a racist. However, she did make comments that appeared to be racist, and those comments appeared in a magazine put out by a racist organization. Does that mean she is in fact a racist? No. But it's not encouraging.
I will say this, though: I am certain she is a colelctivist. And racism is a kind of collectivism. I base that on her comment supporting a union engaging in age discrimination I quoted earlier. And I don't think collectivists should be on the bench, either, as they do not support rule of law.
For my money, all laws that do not specifically conform to rule of law and to what the Constitution actually allows the federal government (and the state governments) to do should not be allowed to remain in existence. Will she throw out every law that comes her way that violates both rule of law and the Constitution? WIll she encforce equality under the law and never support any group over another? Will she insist that all laws apply to each individual equally, or it cannot be allowed to remain law?
Hi Troy
Sotomayor’s comment – “That's what unions do every day: protect people in the union from those not in the union. Why is this case different?'' – does not mean that she is anti-business or even pro-labor, let alone a “collectivist.” Even if you assume (most likely accurately) that she is comfortable with the legal status of unions in this country, that does not indicate that she is any kind of “collectivist.” Also, from an employer’s position, her general lack of receptivity to Title VII claims is far more relevant and beneficial than any broad tolerance she might have toward unions. In particular:
The comment was made in oral argument in the Clarett v. The National Football League. The NFL is is a membership organization consisting of owners. This was not a case in which the interests of employers and organized labor were pitted against each other. The professional football player’s union (NFLPA) was not a party in the Clarett case. At issue were eligibility rules which required a player to be more than three football seasons removed from high school before being eligible to be drafted by an NFL team.
Continued in next comment
These eligibility were not NFLPA rules (i.e., not union rules) and did not even appear in the collective bargaining agreement, but instead were part of the NFL Constitution and Bylaws – that is, they were the OWNERS’s rules . Maurice Clarett, the Ohio State running back who was challenging these rules, argued that by agreeing among themselves not to draft or sign players who had not been out of high school for three years, the owners were illegally restricting free trade. The owners relied on what is called the “labor exemption” from antitrust law – an exemption which, despite its name, belongs to management. Sotomayor’s comment at argument to Clarett’s attorney is that the outcome of this antitrust exemption – permitting a concerted refusal to deal by the owners – was no more protectionist than what a union accomplishes. Its like saying that a corporation insulates the shareholders from personal liability for company’s conduct: stating that axiom does not making the point one way or another about whether you approve of the outcome. Sotomayor’s decision (on behalf of a unanimous 3-judge panel) held that these eligibility rules were not illegal because they were within the labor exemption to antitrust law – that is, NFL owners were a legal “multi-employer collective bargaining unit under federal law.” The decision reflects unique aspects of sports law which has seen owners attempt to include not only salary terms but also eligibility requirements in collective bargaining agreements and the workers (players) typically seeking to keep not only salary restrictions and but also eligibility rules out of collective bargaining agreements. This is because both owners and players believe that if an 18 year old rookie (LeBron James) can negotiate what the market will command for his services then the entire salary structure will move upward. In the area of sports, clearly, the players are more often than not making arguments for freedom of the individual to contract for what the market will command for his services and owners have consistently attempted to rely on the collective bargaining process to restrict the players’ ability to do so.
In the Clarett case, the owners prevailed and, among sports and labor lawyers, the decision is considered an important win for owners and management. (The NFLPA sat on the sidelines; historically it has been far more amenable to eligibility rules than the MLBPA or NBA Player’s Association.)
You are probably right that Sotomayor does not believe that unions pose a great threat to economic freedom. But neither do employers. Under Taft-Hartley, closed shops (requirements that employers hire only union members) are illegal and union shops (requiring new hires to join a union) are legal only if they are part of a collective bargaining agreement – that is, only if the owners agree to them. This is not a law that is unfair to employers or inconsistent with economic freedom.
More in the next comment
Since you are at a Hayek conference, I will quote extensively from a posting entitled “The Pursuit of Happiness – Hayek on Closed Shops and Yellow Dogs,” on the Libertarian Blog “Freeman.” Baird writes:
“In Chapter 18 of The Constitution of Liberty (1960) Hayek argued that the closed shop, as it emerged under the illicit privileges and immunities granted to unions by the Trades Disputes Act in Britain and the NLRA, is coercive and an affront to the rule of law and freedom of association. He called for the abolition of those privileges and immunities, and predicted that most forms of union coercion would then soon disappear.
“I agree, but then he {Hayek] wrote: “[T]he unions should not be permitted to keep non-members out of any employment. This means that closed- and union-shop contracts . . . must be treated as contracts in restraint of trade and denied the protection of the law. They differ in no respect from the ‘yellow-dog contract’ which prohibits the individual worker from joining a union and which is commonly prohibited by the law.”
“Here Hayek contradicts himself. In the absence of any special privileges or immunities for unions or employers, the principle of freedom of contract (which is part of the freedom of association) implies that a willing employer has a right to agree with a willing union composed of voluntary members to set up a union-only shop. I wouldn’t expect many employers to make that choice, but they should not be prohibited from doing so. If such agreements work in a free-market setting, they will be adopted by other employers and other unions. If they don’t work, they will not be adopted. The market will sort it all out. Hayek endorses the principle of letting the market sort things out in other settings. He is not logically consistent when he advocates government interference in market arrangements in this setting.”
http://www.thefreemanonline.org/columns/the-pursuit-of-happiness-hayek-on-closed-shops-and-yellow-dogs/
I think the point made in the last of Baird’s paragraphs quoted above is close to unassailable. Freedom of contract supports the right of employers and voluntary unions to agree to union shops. This is precisely the state of affairs under Taft-Hartley. The arrangement has proven amenable to employers because collective bargaining agreements permit them to project their labor costs over the long term, and also because unions will typically agree to take over parts of the nasty business of employee discipline.
From the employer’s perspective, what is far more troublesome than unions to employers these days is Title VII (workplace discrimination)-type suits. Any business owner or human resources director will tell you they costs incurred because of unions is minimal compared to that of employment rights claims and litigation and the threat of such claims and litigation. Employer’ feel that employment rights lawyers seek to use Title VII and similar statutes to regulate every aspect of work place relationships. Here, Sotomayor’s record consists of voting in favor of the employer 47 out of 50 times. This is stance is a far more effective vote for “economic freedom” than any view she may have on the current legal status of unions.
If there’s some real evidence she’s a collectivist, please direct me to it. I am upset because a Ph.D and a published philospher seems to be making arguments out of context.
More later.
Post a Comment