Tuesday, June 2, 2009

Sonia Sotomayor in Context by Thomas Sowell

Here is an article by Thomas Sowell wriitten on the website IBD Editorials. I thought my viewers would like to see this.
Sonia Sotomayor In Context
By THOMAS SOWELL Posted Tuesday, June 02, 2009 4:20 PM PT
In Washington, the clearer a statement is, the more certain it is to be followed by a "clarification" when people realize what was said.
The clearly racist comments made by Judge Sonia Sotomayor on the Berkeley campus in 2001 have forced the spinmasters to resort to their last-ditch excuse, that it was "taken out of context."
If that line is used during Judge Sotomayor's Senate confirmation hearings, someone should ask her to explain just what those words mean when taken in context.
What could such statements possibly mean — in any context — other than the new and fashionable racism of our time, rather than the old-fashioned racism of earlier times? Racism has never done this country any good, and it needs to be fought against, not put under new management for different groups.
Looked at in the context of Judge Sotomayor's voting to dismiss the appeal of white firefighters who were denied the promotions they had earned by passing an exam, because not enough minorities passed that exam to create "diversity," her words in Berkeley seem to match her actions on the judicial bench in the 2nd Circuit Court of Appeals all too well.
The Supreme Court of the United States thought that case was important enough to hear it, even though the three-judge panel on which Judge Sotomayor served gave it short shrift in less than a page. Apparently the famous "empathy" that President Obama says a judge should have does not apply to white males in Judge Sotomayor's court.
The very idea that a judge's "life experiences" should influence judicial decisions is as absurd as it is dangerous.
It is dangerous because citizens are supposed to obey the law, which means they must know what the law is in advance — and nobody can know in advance what the "life experiences" of whatever judge they might appear before will happen to be.
It is absurd because it flies in the face of the facts. It was a fellow Puerto Rican judge on the 2nd Circuit Court of Appeals — Jose Cabranes — who rebuked his judicial colleagues for the cavalier way they dismissed the white firefighters' case.
On the Supreme Court, the justice whose life story is most like that of Sonia Sotomayor — Clarence Thomas — has a very different judicial philosophy from hers.
The clever people in the media and elsewhere are saying that "inevitably" one's background influences how one feels about issues. Even if that were true, judges are not supposed to decide cases based on their personal feelings.
Justice Oliver Wendell Holmes said that he "loathed" many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.
Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them "inevitable" is part of the cleverness that has eroded the rule of law and undermined respect for the law.
Something else is said to be "inevitable" by the clever people. That is the confirmation of Sonia Sotomayor to the Supreme Court. But it was only a year and a half ago that Hillary Clinton's winning the Democratic Party's nomination for president was considered "inevitable."
The Republicans certainly do not have the votes to stop Judge Sotomayor from being confirmed — if all the Democrats vote for her. But that depends on what the people say. It looked like a done deal a couple of years ago when an amnesty bill for illegal aliens was sailing through the Senate with bipartisan support. But public outrage brought that political steamroller to a screeching halt.
Nothing is inevitable in a democracy unless the public lets the political spinmasters and media talking heads lead them around by the nose.
The real question is whether the Republican Senators have the guts to alert the public to the dangers of putting this kind of judge on the highest court in the land, so that they will at least have some chance of stopping the next one that comes along.
It would be considered a disgrace if an umpire in a baseball game let his "empathy" determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.
* * *
As the mainstream media circles the wagons around Judge Sonia Sotomayor, to protect her from the consequences of her own words and deeds, its main arguments are distractions from the issue at hand. A CNN reporter, for example, got all worked up because Rush Limbaugh had used the word "racist" to describe the judge's words.
Since it has been repeated like a mantra that Judge Sotomayor's words have been "taken out of context," let us look at Rush Limbaugh in context. The cold fact is that Rush Limbaugh has not been nominated to sit on the highest court in the land, with a lifetime appointment, to have the lives and liberties of 300 million Americans in his hands.
Whatever you may think about his choice of words, those words and the ideas behind them do not change the law of the land. The words and actions of Supreme Court justices do. Anyone who doesn't like what Rush Limbaugh says can simply turn off the radio or change the station. But you cannot escape the consequences of Supreme Court decisions. Nor will your children or grandchildren.
What does it say about a nominee to the Supreme Court that the most that her defenders can say in her defense is that her critics used words that her defenders don't like?
What does it say about her qualifications to be on the Supreme Court when her supporters' biggest talking points are that she had to struggle to rise in the world?
Bonnie and Clyde had to struggle. Al Capone had to struggle. The only President of the United States who was forced to resign for his misdeeds—Richard Nixon—had to struggle. For that matter, Adolf Hitler had to struggle! There is no evidence that struggle automatically makes you a better person.
Sometimes, instead of making you appreciative of a society in which someone born at the bottom can rise to the top, it leaves you embittered that you had to spend years struggling, and resentful of those who were born into circumstances where the easy way to the top was open to them.
Much in the past of Sonia Sotomayor, and of the president who nominated her, suggests such resentments. Both have a history of connections with people who promoted resentments against American society. La Raza ("the race") was Judge Sotomayor's Jeremiah Wright. If context is important, then look at that context.
Sonia Sotomayor has, in both her words and in her decision as a judge to dismiss out of hand the appeal of white firefighters who had been discriminated against, betrayed a racism that is no less racism because it is directed against different people than the old racism of the past.
The code word for the new racism is "diversity." The Constitution of the United States says nothing about diversity and the Constitution is what a judge is supposed to pay attention to, not the prevailing buzzwords of the times.
What the Constitution says is "equal protection of the laws" for all Americans—and that is not taken out of context. People have put their lives on the line to make those words a reality. Now all of that is to be made to vanish into thin air by saying the magic word "diversity."
The landmark Civil Rights Act of 1964, like the Constitution, proclaimed equal rights for all, not special rights for those for whom judges have "empathy."
When the Civil Rights Act of 1964 was being debated in Congress, its opponents claimed that it would lead to discrimination against white people. Its supporters declared that it meant no such thing and added new provisions to make sure that it meant no such thing. That was the law that was passed.
It was not the law, but the judges, who changed equal rights into special rights and thereby set the stage for the new mantra of "diversity" that trumps equal rights. Diversity was Judge Sotomayor's rationale for going along with the denial of equal rights for white firefighters in Connecticut.
When all else fails, supporters of Judge Sotomayor say that she is Hispanic and a woman, and that it would be politically dangerous to deny her a place on the Supreme Court. This is as much an insult to the intelligence of Hispanic and female voters as it is to the Constitution of the United States and to those who put their lives on the line for equal rights.
* * *
As part of the biographical preoccupation with Judge Sonia Sotomayor's past, the New York Times of May 31st had a feature story on the various New York housing projects in which she and other well-known people grew up—including Whoopi Goldberg, Kareem Abdul-Jabbar, Thelonious Monk and Mike Tyson.
There was a map of New York City and dots pin-pointing the location of the project in which each celebrity grew up. As an old New Yorker, I was struck by the fact that not one of the 20 celebrities shown grew up in a housing project in Harlem!
The housing projects in which they grew up were different in another and more fundamental way. As the New York Times put it: "These were not the projects of idle, stinky elevators, of gang-controlled stairwells where drug deals go down." In other words, these were public housing projects of an earlier era, when such places were very different from what we associate with the words "housing project" today.
Just the reference to unlocked doors on the apartments there, so that children could more easily visit playmates in nearby apartments on Saturday mornings to watch television, creates an image that must seem like something out of another world to those familiar only with the housing projects of today.
There were standards for getting into the projects of those days and, if you didn't live up to those standards, they put you out. Kareem Abdul-Jabbar was quoted as saying, "When kids played on the grass, their parent would get a warning." That seems almost quaint when you think of what has gone on in the housing projects of a later era.
Since there has been so much talk of putting some of Sonia Sotomayor's inflammatory words "in context," perhaps we should put her personal life in context, if the media insist on making her personal life a factor in her nomination to the Supreme Court. While she grew up in a public housing project, the words "housing project" in that era did not mean anything like the housing projects of today.
A relative of mine lived in one of the housing projects back then—and we were proud of him, as well as glad for him, because such places were for upright citizens in those days—working class people with steady jobs and good behavior. Clever intellectuals had not yet taught us to be "non-judgmental" about misbehavior or to make excuses for vandalism and crime.
While Sonia Sotomayor was not born with a silver spoon in her mouth, let's not make her someone who rose from such depths as those conjured up by the words "housing projects" today. It is bad enough that biographical considerations carry such weight in considerations of nominees for the Supreme Court. But, if biography must be elaborated, let it at least be done "in context."
It has always made me a little uneasy when generous well-wishers have discussed my educational background as if it was something almost miraculous that I came out of the schools in Harlem and went on to Ivy League institutions. But any number of other people did exactly the same thing.
The Harlem schools of that era were no more like the Harlem schools of today than the housing projects of that era were like today's housing projects. They had classes grouped by ability and, if you were serious about getting a good education, you could get into one of the classes for kids who were serious and receive an education that would prepare you to go on in life.
There is a lot to ponder about why both the schools and the housing projects degenerated so much after the bright ideas of the 1960s intelligentsia spread throughout society, leaving social havoc in their wake.
Too many people who rose to where they are today because of a foundation of traditional values have become enthralled by the very different ideas prevalent in the elite intellectual circles to which they moved. Judge Sotomayor seems to be one of those, with her ideas about race and the policy-making role of judges.
It is bad enough that so many of those "advanced" ideas have undermined for others the foundation that Sonia Sotomayor had as she grew up, despite being raised in a home with a modest income. There is no need to let her use the Supreme Court to destroy more of those traditional American values.
Copyright 2008 Creators Syndicate, Inc


Kyle R. Cupp said...

Sowell writes:

"The very idea that a judge's 'life experiences' should influence judicial decisions is as absurd as it is dangerous. It is dangerous because citizens are supposed to obey the law, which means they must know what the law is in advance — and nobody can know in advance what the 'life experiences' of whatever judge they might appear before will happen to be. It is absurd because it flies in the face of the facts."

I disagree. Sowell writes here about the influences of life experiences as if the idea is that a judge should follow her own life experiences at the expense of the law or while ignoring the law. That's not the argument. The argument is that the life experiences of a judge - any judge - influence her understanding of the law itself, of the situation to which the law has to be applied, and of how the law can be applied to that situation.

Unless judges have innate knowledge of the law, then they come to understand the law through their experience. Their experience shapes how they see the law. More to the point, a judge's experiences shape how she understands and can appreciate a situation to which she has to apply the law. A judge who understands from experience what racial and sexual discrimination concretely entails may be in a better position because of that experience to render a just decision.

If being a judge only required applying a fixed legal meaning to any situation, then we could replace judges with computers. We can program computers to do that! But we don't. We want people who understand us and our situations to judge us.

Kevin T. Rice said...

-- 1 of 2 --

I was going to stay out of it, but this has been stewing in me, and now I feel I must give voice to something that has bothered me. The last straw was when I went grocery shopping tonight. As I passed by the latest issue of Time on the "Impulse-Buy Me" racks near the cash register, I saw an attractive picture of Judge Sottomayor, smiling, looking like Roseanne Barr after Botox. The title page teaser: "Latina Justice".

The obvious double meaning was too provocative. It is clear that the phrase refers partly to Sottomayor herself, a female judge of hispanic ethnicity. But I detect that it also is talking about justice as a moral ideal.

It is saying, in part, that this woman is (probably) going to be on the Supreme Court and further break up the power monopoly held too long by The Man - you know, Mr. Whitey Cracker the Blue Eyed Devil, and his crew of WASP Good Ol' Boys, whose raison d'être is to oppress women and non-whites. So the Supreme Court will now be all the better for this change, and as society we can pat ourselves on the back for that. Fine. No problem there.

But it is also, I think, saying that the particular brand of justice that she will mete out as she sits on the highest cour in the land an contributes her judgments to their decisions, will have a distinctly Latina flavor. And no doubt they think this is well and good. No doubt they agree with my friend Kyle that she will have an advantage over her male and white colleagues when deciding cases where the possibility of racist or sexist discrimination is at issue.

-- To Be Continued --

Kevin T. Rice said...

-- 2 0f 2 --

I disagree strongly that this is something to accept and embrace. Realistically, it would naive to assume that judges never let their personal experiences sway their understanding of the law and how it should apply in a particular case. Perhaps it happens quite often. And perhaps it is not always a bad thing. Sometimes prejudiced people jump, almost by accident, to an accurate conclusion. Perhaps when there is genuine racism or sexism at issue, she will detect it more readily, or more strongly, than Antonin Scalia or John Paul Stevens, or even Clarence Thomas (black but not a woman), or Ruth Bader Ginsburg (a Jewish woman, not dark enough of skin, hair, eye color, etc., to have this enhanced moral sensitivity to racial injustice). But I deny that this is a state of affairs to be realistically accepted without a second thought, ler alone an ideal to be embraced. I think this is a tendency to be struggled against and transcended. I think that if it is accepted that the gender or ethnicity or race of a prospective judge are going to play a role in her interpretation of the law, it is just as plausible that such a person could be pathologically oversensitive to the possibility of discrimination, even paranoid - as inclined to see disrimination where it is not present as to detect a subtle presence of it that others fail to see.

I prefer the ideal expressed by the classical image of another Lady Justice: the one wearing a blindfold. In the real world, clearly human judges do not make their decisions in a vacuum. Their personal backgrounds are a part of them and have their influence. But that is not what we aim for, and if we do not aim higher than what we typically achieve, we will never transcend our limits. We will never grow.

I am very troubled that Judge Sottomayor did not repudiate the idea that even the "physiological differences" of a member of a minority could make a positive contribution to that person's wisdom as a judge. I can't make any good sense of such an affirmation. Does wisdom shine on us like solar radiation, which is more easily absorbed by skin with more melanin than skin with less of it? Or does the weight of dangling genitalia perhaps draw so much blood from the brain that it detrimentally affects acts of judgment? Are these physiological differences even more pronounced when present together acting synergistically?

Is this an example of the allegedly enhanced wisdom that she brings to the bench when she carries the luggage of her life experiences up there and plops it down next to her gavel?

Kyle R. Cupp said...

I didn't say she will have an advantage. However, I do agree with her in so far as I think a judge's life experiences might give her an advantage.

Teresa said...

Other Presidents have considered race and gender in judicial appointments in the past but President Obama is the 1st to explicitly advocate the notion that judges should substitute their personal experiences for impartiality in deciding cases. Sonia Sotomayor, after meeting with President Obama, said that she agreed with his philosophy.

Other judges may have referred to their races, gender or ethnic background but none before have asserted that their ethnicity, race, or gender would make them a better judge over a judge from a different background.

One of Obama's criteria for selecting a judge was that the person have "empathy" Here is his statement,
"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage 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 criterion by which I'll be selecting my judges."
Sotomayor has expressed that she agrees with this philosohy. "Empathy" is NOT a requirement for abiding by and ruling according to the rule of law, and nor should it be encouraged for it to be applied in any sense with regard to a judge making a ruling according to the rule of law.

Here are the words that are in front of the Supreme Court building."Equal Justice Under Law" is Chiseled in Stone on the Supreme Court
The central principle of American justice - and perhaps the single, great idea of America - is equal justice before the law. When a judge rules based on "empathy" and that judge disregards the rule of law and applies a different standard-he or she is violating this central American principle.

In the case of Ricci, a New Haven Firefighter, he quit his 2nd job so that he could study for the civil service exam in hopes that he would be promoted to Lieutenant. That seemed to pay off since he got one of the highest scores on the test.But, because there were no Afrcan-American firefighters who scored high enough on the exam to be considered for the the promotion the city of New Haven threw out the results of the test. The 16 white firefighters and 1 Hispanic firefighter sued the city claiming they were denied the promotions on the basis of their race. Sotomayor, one of the judges on a 3-judge panel in a court rulng affirmed the dismissal. Is this the type of "empathy" that we can expect to be applied from Sotomayor as a Supreme court Justice? These firefighters deserved to be considered for promotion but because there were no African American firefighters who excelled on the exam to be considered for the promotion, both the city of New Haven and Sotomayor penalized the firefighters who did excel on the exam. If this is the "empathy" we can expect from her on the bench, which displays a susceptiblity to apply reverse racism, then I don't believe she should be confirmed as a Supreme Court Justice.

Kevin T. Rice said...

FWIW, Kyle, since you felt it necessary to remind me of what you didn't say, I don't feel it's out of line to remind you that I never accused you of saying it. It was clear what you meant, and I said that you and the editors of TIME apparently agree on the point, which you have just confirmed.

Kyle R. Cupp said...


Well, we agree to a point. I don't think she necessarily will have an advantage due to her life experience, but that experience may give her an advantage. It's possible.

You bring up the image of blind Lady Justice, which I'd like to comment on. I like the image as well. It's a good way of understanding justice. But it is also an image and a way of understanding that is rooted in particular cultures. Other cultures and peoples have other images of justice. Some good, some bad.

We get closer, I think, to our ideal of justice by having a variety of good images and ways of thinking about justice present on a court. I advocate diversity not as an end in itself, but as a means to getting closer to a just society. Justice cannot be contained by any one image or any one culture.

Kyle R. Cupp said...

I haven't looked into Sotomayor's record enough to form an informed opinion, so I don't really have much to say about the Ricci case or other decisions of hers.

I thought Daniel Larison, a conservative, made some interesting points here: http://www.amconmag.com/larison/2009/05/26/thoughts-on-sotomayor/

Teresa said...

Thank you for the link to the article. I read it and Daniel raises some interesting points.

I think that a more proper judgement could have been to force the city of New Haven to replace its so called biased test in favoring caucasians, to replace it with a test that would be fair to all parties. Or give a different test to African Americans so that can take the test over. The city of New Haven or its fire dept. are the one's who gave out the test in the beginning. If it was biased in favor of caucasians from the beginning and the city of New Haven knew this why didn't they change the test then? Why should the firefighters who passed this test be penalized for a mistake made by the City of New Haven? I think that the City of New Haven should be penalized for there lack of foresight in not making the test fair to all individuals, if the claim that the exam is biased is indeed true. I do think it is very convenient and even a little suspicious for the city of New Haven to make the claim that the test was biased to favor caucasians, after the test was adminstered, and after it came to light that no African Americans passed the exam in order to be considered for the promotion.