01 June 2009

Can Sotomayor be borked? -- a follow-up

Sotomayor, the story goes, should be called to account for this quote, making her, Rush Limbaugh's words, a reverse racist:

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....
That, apparently, is what passes as an attempt at borking. The quote is much less offensive (though no less objectionable, on different grounds) when left in its larger context:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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.

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.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. ~ See here (emphasis added).
Frankly, the immediate context makes the comment less offensive because it follows an assertion about the lack of a universal definition of "wise". It's less offensive only because it's a bit nonsensical: having recognized the absence of a universal definition of "wise", it's a bit silly to go on and say anything at all about a "wise" latina. Judge Sotomayor could not even hope to distinguish between a "wise" latina and one who is not "wise". We must go on to ask how, in the absence of a universal definition of "wise", we can possilbly know that a "better" decision was reached, much less how we can know that this somehow-better decision was reached by a "wise" as opposed to an "unwise" latina.

On the subject of context there was this posting at Daily Kos, which attempts to show that Justice Alito said something similar to Sotomayor's sentiments:

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position...

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.
See? That proves it. Republicans are hypocrites.

The context, Alito's confirmation hearings, raises some doubts, however:

[SENATOR] COBURN: You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.

Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.
To be accurate, Alito was not asked about jurisprudence. He was asked about what type of man he is. He was responding to assertion that he doesn't care about people.

There were several elucidating comments such as that Alito lied when he gave this testimony of his background, his feelings about it and the fact that he thinks about it when he attempts to apply the law (here, here, here), examples of making up facts needed to support a pre-determined conclusion. There is another, though not strictly related, example of that in this comment, in which we learn that if there is any racism in Puerto Rico it was brought there by tourists.

Bear in mind that Alito didn't say his background influenced his decisions, that wasn't the question. He certainly doesn't say anything such as that a "wise" italiano can reach a better decision than some white guy who didn't have the italiano experience. In fact he stipulated that "[I]t's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result." Keep that in mind when reading this comment. Then there's the one who claims Alito is so assimilated that he isn't really Italian anymore, here. Strawman comment in which Alito is criticized for saying that because of his ethnicity he could understand things better other who did not share his ethnicity, something he didn't say.

This is why I said leftists are so much better at borking than rightists. To successfully bork someone your audience must buy your pathetic, logical-fallacy ridden arguments. And the most potent logical tools leftists have are the persuasive definition, equivocation, strawman and the ad hominem. To regain the upper hand, Republicans, win, lose or draw, must reject borking as an appropriate strategy precisely because the tactics involved are at odds with the sort of appointees they claim to want, as well as with the sort of jurisprudence they claim to want these appointees to exercise. As Michael Polanyi says in his book, Personal Knowledge, often, in order to persuade one must teach one's interlocutor how to think. That is a very time-consuming process, and it means a few defeats before any successes. And if Republicans object to having to take the time for this, they might consider they have only themselves -- not Democrats -- to blame for the necessity.

H/T: Ethel C. Fenig, at American Thinker, here.

P.S.

As a bonus consider this pathetic refutation-by-mocking of originalism:

Judges like Antonin Scalia can throw out two centuries of precedent because they don't agree with it. Why? Because they've held private seances with the ghosts of the Founding Fathers, who revealed what they really meant when they wrote the Constitution.

How's that for a legal philosophy?
Originalists, whether their jurisprudence is right or wrong, possible or impossible, have not claimed private seances with the ghosts of the founding fathers. So what we've got here is a strawman, an argument against a proposition which hasn't been put forth. (And, as the highest court in the land, the SCOTUS is not bound by stare decisis. For, if it were, the Supreme Court could not possibly have reached the holding in Brown v. Board of Education (347 U.S. 483 [1954]) which overturned a half century of precedent going back at least to Plessy v. Ferguson (163 U.S. 537 [1896]). Besides, I don't know if we have two centuries of precedent on any legal matter, except perhaps for the notion of judicial review.)

He pretends to defeat, by simple mocking, the idea of being able to determine the meaning of a text through analysis of the text itself. Shall we apply this same skepticism to his comment at Daily Kos? Is it possible, after all these days, to determine what this silly individual really meant when he wrote that comment? If he would agree that it is still possible, these many days later, to discern the meaning of his posted comment, then what is the expiration period? For how long a time must a document be extant before only a seance with the writers of the document can reveal the meaning of the text? It is people like this who make borking successful. Is this the kind of sad, intellectual cripple Republicans want to persuade by such tactics?

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James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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