In Defense of Sotomayor’s Critics

Supreme Court nominee Sonia Sotomayor has been getting a lot of criticism for a speech she gave at the UC Berkeley, School of Law in which she said “I would hope 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.”

Lots of Judge Sotomayor’s defenders have been accusing here conservative critics of taking her comments out of context. Many of them are predictably accusing her critics of racism as well.

You should read the whole text of her speech as published in the Berkeley La Raza Law Journal if you really want to understand the context.  The problem is that the context doesn’t make the comments any better.  If anything it makes them worse.  With respect to that particular controversial comment, I can see only two possible ways of reading it:

The first is that she’s saying decisions should be guided by “empathy” — not simply the letter of the law — and empathy is something she has more of because, as a non-white male, she has faced more of life’s hardships.  She has a “richer experience”, in her words.  As a result, her increased empathy will lead her to better decisions, in general.  That seems to be a reasonable interpretation of her comments, even reading them in context.  Most of her defenders are claiming that’s not what she meant, but it does seem to be a plausible interpretation, given the statement’s lack of qualifiers.  And I’m sorry, but if that’s what she meant, it is indeed stupid, shallow and yes, racist.  Saying Latina women are more empathic because of their experience is no less racist than saying white men are more honest or competent because of theirs.

The second, and more likely, possibility is that she was saying her life experience would help her reach a better decision in those specific cases involving people with similar backgrounds – i.e. women and ethnic minorities – because she’s faced similar obstacles and can better empathize with their situation.  Unfortunately this interpretation is worse than the first.

First of all, if you don’t consider that argument offensive, try reversing it.  Imagine a white male Bush nominee saying (in ANY context) “I would hope that a wise white male, 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.”  Democrats across the board would be outraged.   And every one of you who are now defending Sotomayor would be calling that judge a racist.  Now imagine this hypothetical nominee’s defenders started saying “no, no, you’re taking his words out of context.  He wasn’t saying that a white male would ALWAYS make a better decision in all cases.  He was only talking about those specific cases in which his “rich experience” as a white male give him a better understanding of certain issues.  You know, like corporate law, second amendment rights, and national security”.  Would suddenly that make it ok?  Not a chance.

It’s important to note that she was not simply saying “My background will help bring a different perspective to the court and perhaps help the court to consider facts they might not have otherwise considered.”  If that’s what she said, no one would have a problem with it.  But she didn’t.  What she said (and still believes, apparently) is that that in cases involving women and minorities she will make better decisions than white male Justices because of her background.

But every case involving an ethnic minority or a female in which that party’s ethnicity and gender are directly relevant to the case is almost certainly going to include a counter party that is white or male.  Let’s face it, what we’re really talking about are cases that involve discrimination claims, affirmative action, etc. — the sort of cases in which ethnicity and gender would be relevant.

In any such case empathy can’t help you make a “better decision” unless your empathy lies with one side or the other who you’ve pre-determined is probably right.  And since she admits that this empathy will sometimes be determined by her own ethnicity and gender – and she’s OK with that – it makes what she’s saying even worse.

She is essentially saying “I will make a better decision in discrimination cases because I know what it’s like to face discrimination”.  But how is that any better than a white male judge saying “I will make a better decision because I know what it’s like to be falsely accused of discrimination”?  Liberals, would you really trust any judge that said that to approach a discrimination case fairly and honestly?

I know what you’re thinking – that all those white men on the Supreme Court do the same thing with their own biases; they just don’t admit it.  But that’s where you’re wrong.  While it may be impossible for any Justice to eliminate 100% of their biases, we should expect them to make every possible effort to do so.  And at least four of them do, precisely because that’s what their own judicial philosophy demands.

Justice Scalia has said many times that he often reaches decisions that he doesn’t like because he has to uphold laws he doesn’t necessarily agree with.  So do all the non-activists (conservatives) on the bench.  That’s not surprising since that’s the whole point of the non-activist judicial philosophy they subscribe to.  Activist Justices like Breyer and Ginsberg, on the other hand, do everything possible to find ways to “re-interpret” the law using novel legal theories in order to make it fit with their own biases, even when that means ignoring the clear intent of the law.

Sotomayor is saying she will follow the same activist approach as Breyer and Ginsberg, and she’s proud of it.  Even worse, when she does so, she knows she will allow ethnicity and gender to affect her judgment in “relevant” cases and she sees nothing wrong with that.  Lest you doubt that, she even concludes the speech by saying: “I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”  It’s depressing that any judge would think the answer to that question is something other than “never”.

If you still think it’s unfair to extrapolate all of this from a couple of sentences, please read her entire speech.  Much of it – especially the second half — is an indirect attempt to argue in favor of outcome-based judicial activism and completely supports her critics’ interpretation of her comments.

If you’re a liberal, do you really want Justice Thomas or Scalia to start making decisions based on their own personal “opinions, sympathies and prejudices”?  Isn’t it better to insist that judges make every effort to act on principle and abide by the Constitutional limits on their own power, rather than undermine the neutrality of the courts?

This isn’t just an abstract philosophical argument either.  It has real-world consequences.  For examples of what happens when judges allow their decisions to be guided by selective empathy, we have only to look at some of Sotomayor’s own cases:

See, for example, Krauthammer’s comments on the Ricci v. DeStefano case here.

See also this from last October.

as well as this case in which Sotomayor resorts to some really creative reasoning to support a ridiculous ADA disability lawsuit.

And just in case you needed some more proof that Sotomayor is an unabashed judicial activist, see her comments from this other law-review article.

Dissent isn’t unpatriotic….it’s racist!

Our nation’s leading political expert explains:

Some comments:

1. Olbermann started off that show with yet another string of “tea-bagging” double entendres. The fact that virtually everyone in the left-wing blogosphere (and MSNBC) has been repeating that joke ad nauseum is so juvenile I’m almost embarrassed for them. It might have been sort of funny the first time someone said it but when you’re the 5000th person to say it and you still think you’re oh-so-clever and witty, it’s just lame. Seriously.

2. Janeane mocks the number of people who attended saying “literally tens of people showed up to this thing…” In fact it was somewhere between 250,000 and 600,000 nationwide – similar to the biggest of the anti-Iraq war protests in 2003.

3. Both of them keep talking about how racist and hateful the protests supposedly are but can’t seem to find any examples of anyone doing or saying anything that’s actually racist or hateful. If the clips he shows are the best examples he can find from the over 800 protests nationwide, I’d say that’s pretty strong proof that this whole thing wasn’t the least bit racist or hateful. Doesn’t anyone remember the kind of stuff we saw constantly at all the anti-war/anti-Bush protests?

4. Janeane says these protesters are a “volatile group” prone to violence. Yet, despite the fact that this took place in over 800 locations nationwide, none of them were violent. Contrast that with all of the anti-capitalism and anti-WTO/G20 protests that almost always result in violence and vandalism. The most recent one was just a couple of weeks ago in London.

The “F” Word (not Fahrvergnügen)

I’m generally not a big fan of using terms like “fascism” to describe modern politics (regardless of party) unless there’s really no other equally effective way to make your point.  The term fascism, especially, is so overused and has so many connotations, that it causes your listener/reader’s hyperbole flag to go up and everything you say from that point on, no matter how well supported by evidence, gets ignored or chalked up to paranoia or partisanship.

Having said that…

For the sake of clarity, I think it’s very important for people to understand what fascism actually is — at least its economic philosophy.  Virtually everyone is already familiar with the militarist/racist aspects of National Socialism (Nazism) – a particular brand of fascism.  But if you can put that aside for a moment and simply look at the economic features of fascism – what 20th century leaders and proponents of fascism actually believed and promoted – the result is….interesting…

As I said, I wouldn’t go so far as to start calling our current politicians economic fascists (most of them anyway).  There’s obviously a significant difference in degree, for one thing. But keep in mind the recent actions of our current administration with respect to GM, AIG and others, as well as the $700 billion stimulus bill that goes, in large part, to corporations that are willing to work with the current Democratic social agenda, plus numerous other bills being considered by Congress to control and manipulate private business into the mold of their own morality.

Now read this post by Jonah Goldberg.

Better yet, read his whole book.

UPDATE #1:  An example of why it’s a bad idea to use the term (if you’re a conservative).

UPDATE #2: More hypocricy from Howard Dean.

Some fun graphics to brighten your day

From the Washington Post:

Projected Deficit in Pictures

And, yes, that graph DOES include all the supplemental spending on Iraq and Afghanistan from 2002-08, in case you were wondering.


Che Guevara and Debussy to a Disco Beat

This short video on Reason TV is worth 9 minutes of your time.
Now go rent “The Lost City“, directed by Andy Garcia.  You’ll need to help prepare your brain for the intellectual assault it will receive when you inevitably watch Steven Soderbergh’s sure-to-be-Oscared hagiography of Che.  Seriously, has Soderbergh ever made a film that wasn’t simply a vehicle for lefty political propaganda?

UPDATE:  Benicio Del Toro walks out during a newspaper interview on the film.

It’s that time again!

Time to play Name That Party! (thanks Instapundit)

It’s a favorite among our news media. Once or twice a month they like to get together any play it, just for fun. But it’s also educational! You see, by making people do the research for themselves, it helps make them even smarter. And there’s just no substitute for that sense of personal accomplishment.

That’s why so many people were well informed about which party controls congress and did such a great of job punishing the right party at the voting booth, given the 13% approval rating for Congress.  It’s democracy in action!

UPDATE:  Today is International Anti-Corruption Day.  Should be an easy date for me to remember.

Democrat Economic Illiteracy Example #4972

Here are three very smart economists and our most business-savvy politician explaining why bailing out Detroit is a terrible idea.  It should already be obvious if you understand how markets and competition are actually supposed to work, but read them anyway:

David Yermack
Mitt Romney
Jim Lindgren
Todd Zywicki

Now let’s look at the Democrats’ “solution”

Mickey Kaus summarizes it as:

The New Plan? Cripple Honda! Save Detroit with Card Check! Eliminating the secret ballot and making it easier to organize U.S. Honda and Toyota workers (and imposing contract terms via binding arbitration) would “level the playing field,” says Dem. Congressman Tim Ryan. … Then when Honda and Toyota responded by importing more cars from abroad, we could have import quotas! Eventually the whole automotive sector could be planned by Congress in conjunction with existing business and labor interest groups.

Oh, this is going to be a delightful four years.