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.