Friday, June 05, 2009


Some Republicans are now backing off the claim that Sonia Sotomayor was being racist when 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." But they keep repeating the idea that a white man who said that white males would make better judges would be out of the running for the Supreme Court seat. I heard it twice yesterday, from a caller to Rush Limbaugh (who agreed) and from Sen. Lindsey Graham.

They are right that the reaction would be different, and that might be a problem if the two statements were equivalent. But they aren't. Let me illustrate the point with a noncontroversial example.

Suppose you were to call me "the watermelon-eating David Crisp." I would think that was an odd way to refer to me, but I would not be in the least offended. I love watermelon. I have eaten it with great pleasure since I was a small child. If I ever am put to death for all of my crimes against humanity, watermelon will be on the menu for my last meal. So have at it.

But suppose you refer instead to the "watermelon-eating Barack Obama." That would mean something far different and would be racially offensive for reasons that I should not have to explain and that have nothing to do with how he feels about watermelon.

The fact is that we do not live in a color-blind world, never have, and probably won't in my lifetime. So if a white male says that white males make better judges than Latina females, the statement is immediately suspect because, for 150 years or so, the belief that white males made the best judges was essentially the default position in American jurisprudence. Not only did all the jobs go to white males, they were usually the only ones even considered. And since access to the kind of education and background that is needed to make it into the pool of people from whom justices are picked was for many years routinely denied to women and minorities, white males were often the only really qualified candidates.

So when a white male says that white males make the best judges, he seems to be endorsing decades of blatant discrimination. But when Sotomayor says what she said, she is saying something far different. She isn't saying that white males ought to be excluded from the Supreme Court for the next 150 years. She isn't saying that white males are genetically inferior. She's just saying that what Latinas had to go through to make into that pool of potential justices might enable them to make better decisions than people who didn't go through that.

That's a debatable proposition, but it isn't racist. When Chief Justice John Roberts famously compares judging to calling balls and strikes in a baseball game, that is held up as a model of fairness and objectivity. But Jeffrey Toobin reports: "In every major case since he became the nation’s seventeenth Chief Justice, 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."

No doubt Roberts believes that he was just calling balls and strikes, and I am not enough of a lawyer to prove him wrong. But it's possible that a judge who has spent his life on one side of the street might have trouble appreciating the legal arguments that come from the other side. And a judge who presumes that umpires and referees operate in some neutral other world just doesn't understand the game (h/t Yglesias).

The fact is that umpires struggle against their own biases all the time. Their job is at its heart much simpler than that of Supreme Court justices. They typically have all of the facts right in front of them, and most of their decisions involve matters of physical space and time (Was the pitch over the plate? Did the slide beat the tag?).

Yet bias intrudes. Some players are nicer guys than others; some teams are more sympathetic. Sometimes umpires are just tired and want the game to be over. Sometimes umpires are suspected of deferring to players who are known to have a good sense of the strike zone. Experienced umpire baiters know that arguing a call isn't about getting an umpire to change a previous decision -- that never happens. It's about getting him to change a decision that hasn't been made yet.

Who makes a better umpire: One who takes all of that into account and constantly tests his judgment against his biases, or one who pretends that biases don't exist?

As the saying goes, you make the call.


Anonymous said...

David - I'm a little dissappointed.

You're title is "Racism?", and I had hope that you would admit that Sotomayer believes in reverse-racism, and that it is just as wrong to be biased against white men, as it is to be biased against hispanics.

Sotomayer obviously has a chip on her shoulder.

How come the only ethnic group in America, who can be villified, and discriminated against, without the right to object, are white, christian men?

If I was trying for an appointment as a judge, and I said that my middle-class upbringing and lifetime of working makes me a better candidate than most (put in your ethnic group of choice here), there would be an uproar.

Ken & Carol said...

My answer is True—True, but Unrelated.

David said...

Eric, Did you even read what I wrote? I have yet to see a scintilla of evidence that she is guilty of reverse racism or any other kind.

And yes, of course, if you said that your lifetime of working makes you more qualified that most blacks or Hispanics, there would be an uproar because you would be implying that most blacks and Hispanics don't work. That would be outrageous. But it isn't what she said.

Carol, Unrelated? How?

Dave Budge said...

Yeah, I think they have it wrong. I think she's a "racialist." - and I think her "hope" isn't particularly justified. One's experience is a likely to add as much baggage as benefit - as you allude w/ Justice Roberts.

David said...

Dave, I'm not sure what a "racialist" is, but I think her point about experience is that she has it from all sides: growing up poor, experiencing discrimination, then overcoming it and living on the side of wealth and privilege for a while. Makes sense to me.

Ken & Carol said...

And who falls into this category?—"one who pretends that biases don't exist?"

I thought you clearly said "that I have yet to see a scintilla of evidence that she is guilty of reverse racism or any other kind."

Unrelated: The first part of your argument boils down to "because I say so" or "Racists can never be any group that has been victimized in the past." The second part is a complicated succession of baseball images which doesn't seem related to the first part. Well, wait a minute: maybe I have heard this argument before, usually used by lawyers: My client is not guilty. If she is, then it is not her fault.

Actually, a better analogy for the second part of your argument comes from the software people. "That thing you call a bug is actually an undocumented feature."

David said...

Carol, If you can find in anything I wrote the idea that people who have been victims of racism can never be guilty of racism, then you are a far more creative reader than I am a creative writer.

I understand racism to be the belief that:

1. Some races are inherently (genetically) superior to others.

2. Inherent superiority justifies discriminatory treatment.

When did Sotomayor ever say anything like that?

The baseball analogy comes from Chief Justice Roberts, who has been held up as an example of a bias-free approach to judging. I dispute that claim, both as it applies to him and to judging in general.

Anita said...

What bothers me most about this exchange is that the quotation used to label Sonia Sotomayor is taken out of context. Has anyone who has commented here read the complete speech? If not, here it is: "A Latina Judge's Voice." I think your comments make a great deal of sense, but then, I'm a liberal, with ethical views too many far-right conservatives claim we don't have, yet which I have identified as common values with many rational conservatives. I just spent a week in Texas listening to my father reveal his own clueless racism. Hey, I love my father very much. He's a great guy in many ways. But in ten minutes during an evening meal in which a young Asian/African-American man was present, my father claimed that the black men he met in the U. S. army in Germany in the early fifties were either "all bad or all good," that people thought he was Jewish because he was always loaning money to his Army buddies, and that they also suspected he was Chinese because he wore round glasses. He hit every stereotype of blacks, Jews, and Asians. And he thought he was making contact with the young Asian-African-American at the dinner table with him. That young man said absolutely nothing; he kept his head down as he shoveled his food in his mouth. He felt he owed his hosts the meal, the lodging, and the respect toward age.

Context is everything.


Ken & Carol said...

David, thanks for your definition of racism. Eric and I continue to wonder how the "Latina" quote cannot be understood by you as a frame of mind not productive of good judging, and usually called by those on the left "racist." If you want to be more specific that is fine with us. We agree, as far as we can tell, that what she says, may not be racist, especially according to your splendid definition. But you seem to think that disparaging a not quite accurate diagnosis of her judicial temperament makes her a good judge.

As for baseball and Roberts I guess you are saying that being bias-free is impossible for conservative white males, and is important, but that for Latinas, whether they think they are bias-free or not, it doesn't make any difference as to their fitness to serve.

Jay Larry Lundeen said...

"All animals are equal, but some animals are more equal than others."

- George Orwell, Animal Farm

David said...

Carol, If you look at the whole speech, as Anita suggests, you will see that Sotomayor acknowledges that she is not bias free, but that she struggles when she judges cases to set those biases aside. As someone who has written thousands of stories over the years that attempt to exclude personal bias, I don't think it is possible for conservative white males -- or anybody else -- to set all bias aside.

But I know that as a reporter, the more I know about all sides of an issue, the easier it is to be fair to everyone involved. I think Sotomayor is saying that the same is true for judges.

She is biased and knows it and attempts to compensate for it. Roberts is biased and seems not to know it. Who is more likely to reach a good decision?

As for the Latina quote, it is just part of who she is -- just as "displaced Texan" is part of who I am. It by no means implies racism.

Ken & Carol said...

We seem to be getting more sympathetic with each other's biases as time goes along in this comment section.

Not surprisingly Shelby Steele in Monday's Wall Street Journal op-ed pages summarizes all of our halting arguments and makes eminent good sense out of the flimsiest of our instinctual responses. Be sure to check him out. So then, I can only add ". . . because he said so."

Anonymous said...

Eric wrote: How come the only ethnic group in America, who can be villified [sic], and discriminated against, without the right to object, are white, christian men?

Oh, [sic] the whole awkwardly worded thought. But tell me Eric, why does being a white male in a society dominated by white males entitle you to victim status?