The writer Dave Eggers, in an interview in Salon:
“More than any other event in recent history, this exposed the quiet racism that’s right there under the surface, these assumptions.”
He was talking about Hurricane Katrina, but he might have been talking about the Sotomayor confirmation hearings.
They could have been a compelling snapshot of the politics of the way people interact with each other in America in 2009. It’s frustrating that they weren’t. Understandable, though, since it’s what none of the principals wanted. Sotomayor just wanted to get through the process and be confirmed. The Senators just wanted to make speeches on TV.
Race (or, better, identity, ethnic and/or gender) was all over these hearings, sometimes bubbling beneath the surface, sometimes right on top. The best Republican barometer for this was Sen. Lindsey Graham. Consider this exchange, on anonymous surveys of lawyers who argued cases before Sotomayor that described her as tough and and difficult.
Graham practically scolded her: “It’s hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?”
Sotomayor said no, of course. Graham then obnoxiously suggested that, for Sotomayor, perhaps “these hearings are time for self-reflection.”
Would any of this have occured to Graham if Sotomayor had different reproductive plumbing?
No one knows, including Graham. A day later he said, ”when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.”
Oh, I get it. So you’re the gatekeeper. Benevolent of you, speaking out in favor of “letting you non-male, non-white,” people in.
The problem with that, as Eugene Robinson put it in the Washington Post Tuesday, is Graham’s assumption:
“that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things.”
See? It doesn’t occur to these guys that white maleness is just another prism. Not THE prism. A prism.
Then there was the pointless decision to have New Haven, Conn. firefighter Frank Ricci, now fated to go down in legal history, testify at the hearings.
The Supremes got Ricci right. It’s almost incredible how weasely New Haven city officials behaved in that mess.
What people don’t get about the case is that Sotomayor ruled the way she did because of set precedent, from the Roberts court, which has bent over backwards to the point of fracturing vertebrae to favor employers in discrimination conflicts with employees.
Note how the calculus changes when the employee is a white male and the employer is not private business but the government.
Note also that this is the third time Ricci has sued an employer over perceived discrimination.
As Dahlia Lithwick put it in Slate:
“Perhaps [Ricci] was repeatedly victimized by a cruel cadre of employers… If that is so, we should all be deeply grateful for the robust civil rights laws that protect Americans from unfair discrimination in the workplace. I look forward to hearing [Cowboy Sen. John Cornyn, R-Texas]’s version of that speech next week.
The other way to look at Frank Ricci is as a serial plaintiff—one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command. That’s not the typical GOP heartthrob, but I look forward to hearing Sen. Cornyn’s version of that speech next week as well.
When Frank Ricci testifies against Judge Sotomayor, it will be worth recalling that under any other set of facts he would have looked to his GOP sponsors like the kind of unscrupulous professional litigant Rush Limbaugh lives to savage. Is America’s conservative movement ready for an anti-affirmative action hero who has repeatedly relied on the government to intervene on his behalf to win him—and help him keep—a government job?”
Amen.
The left isn’t really seeing Sotomayor, either, through all the labels.
Re Sotomayor’s now-infamous “wise Latina” remark, Graham claimed that, “If I ever said something remotely like that, my career would have been over.”
That’s hyperbolic (that statement might have helped Graham get elected to the Senate from South Carolina), so let’s put a finer point on it. Let’s say I, your humble correspondent, a 50 year-old white male, was an appelate-court judge considered to be among the likely candidates for the next Supreme Court opening (settle down, it’s a hypothetical).
Let’s further say it’s revealed that I, at some point in my adult life, in a prepared speech, said “I would hope that a wise white male, with the richness of his experiences would, more often than not, reach a better conclusion than people who haven’t lived that life.”
That’s the end of my candidacy. I’m never going to be a Supreme Court nominee. Never, ever. I could be by consensus the greatest legal thinker who ever lived. It’s not happening. No one would be talking about the context in which I said it, or about my case record, because those things wouldn’t matter. I’m not getting on the Supreme Court.
That’s not a political reality, or a partisan reality, or a rhetorical reality. It’s a reality reality. It’s the way the world works. If you can’t see that, you can’t see.
And Sotomayor has apparently made her version of that statement, or ones identical in substance, 4-5 times over the years.
There is a persistent problem with words. The word better is the only problem with the wise Latina quote. If she meant what her defenders say she did, she could easily and more effectively have expressed it without the word better. With it, it’s “Because of my labels and your labels, I’m superior.” That’s racism defined. I hope it’s not what she meant, but there’s no denying that it’s what she said.
She said her mother was her aspiration when she meant inspiration. She referred to the “National Labor Relationship Board.”
Am I nit-picking? Maybe. But we’ve all heard references to the NLRB, in the media, for years. Lord knows I make more than my share of mistakes, but I can’t imagine myself, sober, saying “National Labor Relationship Board.”
Can you imagine yourself saying it? Can you imagine Barack Obama saying it? Can you imagine Dubya saying it and getting away with it?
I don’t really think she’s a racist, or at least any more of a racist than most people are. But if she’s not, the only other explanation for “wise latina” I can see is that she uses words in a recklessly sloppy way.
Can you be a great lawyer if you use words in a recklessly sloppy way? Isn’t being a great lawyer the first thing we should demand of a Supreme Court justice?
She deserved to get knocked around a little over this, and she did.
I’ve read a lot of what this woman has said and written and decided over the years, and…. I don’t know….
There’s no question that some of her decisions - upholding a school’s right to strip-search a junior-high kid, forgiving police belligerence (to put it mildly) - would be offensive to liberals if they came from a judge who was, um, labeled differently.
Yeah, yeah, she was just following precedent. OK, but you don’t get to say that and also play the “Who cares what she said; examine her record,” card.
One or the other. You can’t have both.
And there have been times when she didn’t merely uphold precedent, she one-upped it.
People from both ends of the political spectrum were understandably outraged by the Roberts’ court 2005 decision in Kelo v. City of New London, Conn., which held that the government can condemn a person’s property and transfer it to someone else in order to promote economic development.
But consider a decision Sotomayor was in on, in 2006’s Didden v. Village of Port Chester, upholding the government’s condemnation of property after the owners refused to pay extortion money to a politically influential private developer.
The Volokh Conspiracy called that decision, “the worst federal court property rights decision in recent memory.”
From what I’ve read of the community of liberal or progressive legal scholars, their reaction to Sotomayor is pretty much, “Ehh. She’s fine. Wouldn’t be my first choice, but I’ve got no big problem with it.”
Don’t we deserve better than that?
I’d love to be impressed, but I’m not.
I’d love to see this as something other than an affirmative action hire, the liberal version of Clarence Thomas, but I can’t.
I’d love for Obama’s first Supreme nomination to be a great one.
It isn’t.
