Just as we saw during the 2008 campaign with "Marxist/Social/Muslim-ism", wild and unfounded accusations of "judicial activism and racist" are now flying about like spittle from a just punched boxer.
It's got to stop. We have to end the parade of horrid tableaux such as this one:
Buchanan pushes two primary arguments which have become religious dogma to many on the Right 1) Sotomayor thinks Latina's are "Superior" to Whites and 2) Sotomayor implemented some form of "Reverse Discrimination" against the mostly White (and one Latino) Fire-fighter in New Haven.
Point one comes from this lecture given by Judge Sotomayor at UC Berkeley on the subject of what means to be a Latina Judge.
The offending line, as we've all heard/read it.
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.
Looking purely at this many have latched only three key words "Latina - Better (than) White" and in doing so the ignore literally everything else in the sentence. Let's just for the sake of discussion try this sentence written race neutrally.
I would hope that a wise (person) with the richness of (their) experiences would more often than not reach a better conclusion than (another person) who hasn't lived that life.
What this simple modification shows that even if you were to change the sentence around an make the "better" person white - it still rings true. A person with rich life experiences honestly Should make better decisions drawing from those experience than someone without them, regardless of who they are -- however the reality is that sometimes they don't.
Let's again focus on the beginning of the sentence... "I would hope..."
The clear indication of this phrase is that she has her doubts that this will be the case, that a wise person with rich experiences - even if Latina - would make better decisions than a person without those experiences - even if White.
She Doubts this premise.
The simple truth is that Judge Sotomayor's point is almost exactly opposite to what those who scream RACIST in the night have claimed. This is further illustrated if you dare look at, gasp, the entire paragraph.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.
Clearly she's saying that our backgrounds can make a difference, but not that they necessarily will or that that difference will also be a positive one. This is further shown as we go to - gulp - the very next paragraph.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
This cements the point home, she is clearly not saying that Latina's are better than Whites, she's simply saying that she would HOPE that they would make as wise a decision as previous White MEN on the the court such as Holmes and Cordoza (who was technically of Portugese descent) have clearly shown in the past.
In other words, You CAN'T judge a book by it's cover. People can surprise you.
The second of Pat's points is in regards to the Ricci Case, where just 7 Figherfighters our of 70 applications were to be granted promotions to Lieutenant and Captain based largely on their exam results. For some reason, all except for 2 Latinos were White - none were Black.
The city had attempted to craft a race neutral test, but when the results were so clearly racially-biased the city decided to throw that test out and craft a new one. 17 White Firefighters and 1 Latino sued. The initial judge threw out the case arguing...
"The decision to disregard the test results affected all applicants equally," "New Haven did not race-norm the scores [to favor minority candidates], they simply decided to start over," the judge said. "While the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded."
A Three-Judge Panel on the 2nd Circuit (which included Sotomayer) made the follow statement in their upholding the lower court.
"We are not unsympathetic to the plaintiffs' expression of frustration," the panel wrote. "Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim."
The appeals court panel concluded that city officials acted within the law when they threw out the test results. They were simply trying to fulfill their obligations under anti-discrimination laws when confronted with test results that produced a disproportionate racial impact, the panel said.
Apparently Judge Sotomayer asked quite a few questions during the hearing including...
“We’re not suggesting that unqualified people be hired, the city’s not suggesting that,” she told Ms. Torre. But “if your test is going to always put a certain group at the bottom of the pass rate so they’re never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try to look and see if it can develop that?”
Rather than being an "activist" judge who would have overturned precedent to meet her own whims, Judge Sotomayor voted with the majority to continue the established rule of trying to make race neutral attempts to avoid a disparate impact on minority applicants.
The fact is that sometimes discrimination doesn't come in the form of Bull Connor with a pack of dogs, sometimes it comes in small little conceits of clubiness, additional access and resources to the insiders or simply a tendency to "norm" everything to the tastes, style and preference of the majority to the detriment of any outsider/minority. Sometimes this is completely unwitting and sometimes it's deliberately Covert since the Civil Rights Act long ago made obvious acts of discrimination criminally and civilly liable.
These days bias is rarely, if ever, overtly and obviously shown by anyone in authority.
What we also want to avoid is over-reacting to the potential civil liability by assuming bias when none is necesarily present. It's in many ways a "Catch-22" of trying to end continue bias, without creating a NEW bias (so-called "Reverse Racism") .
But then again, what if those who do want to implement deliberate anti-minority (or majority) discrimination have simply figured out new and better ways to game the system? Should we just ignore the evidence when a situation as stark and hard to believe as the New Haven test results appear? Can it really be true that not ONE Black person was able to score high enough on the test? (Contract this argument with one I recently posted where Buchanan argued the exact opposite, that it wasn't possible that NOT ONE WHITE MAN could have been considered for the nomination that Sotomayor received -- "It HAS TO BE AFFIRMATIVE ACTION" he argued. It's couldn't have been the Suma Cum Laude, the Phi Beta Kappa or the 17 years of Federal Bench experience? Yeah, ok - whatever)
Admittedly this is a difficult case, and there are sympathetic persons on all sides of the issue. Was the Test Fair? Were the Black Firefighters just simply outscored? If in fact, the test wasn't flawed and they had performed a "Do Over" with a new better (and still race neutral) test, wouldn't the better performing applicants have still prevailed?
Rather than go against the facts and the lower courts on this matter, Sotomayor followed precedent and the rule of stare decisis (settled law).
The third issue, which isn't addressed in the video, but is still relevant is Sotomayor's "Courts make policy" statement from a Duke University Conferrence. Much too has been made of this statement as it makes her appear to be a wild-eyed activits.
All of the legal defense funds out there, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law, I know. I know.
To this I've read reasonable sounding responses such as...
Excuse me, I thought it was the job of Congress to decide "policy". At least according to the Constitution... isn't that what she's supposed to be protecting... the rule of Constitutional law? Isn't that in fact the "job" of a Supreme Court Justice?
The simple answer to that is "No". The final arbiter of what is "Law" and Constitutional is the Courts, particularly the Supreme Court as was established 206 years ago by Marbury v Madison.
Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government.
All she was saying, was the truth. Congress may make the law, the President may sign it - but the Court then review it and ultimately decide if it should remain standing under the Constitution - OR NOT.
The hysterical bleets of the wing-nuts on these issues need to be either ignored, or completely taken apart to the point that no one with half-a-brain and any self-respect would even consider repeating these baseless, demeaning and racially-projectionist arguments against the most experienced and educated Supreme Court Nominee in over a Century.
Stop. The. Fracking. Madness!!