Monthly Archives: May 2009

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Who Does Sotomayor Hope Will Be Better Judges than Holmes and Cardozo?

Michael O’Hare parries:>The Reality-Based Community: Sotomayor and rhetoric: Brad DeLong raps my knuckles for being cavalier about the sentence talking heads have been endlessly parsing from Sotomayor’s Berkeley speech. Here’s the full 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 Minow 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.*>Brad does a thorough rhetorical review of the speech and I agree with most of what he said (though his evaluation, in my view, suffers from some grade inflation). And with most of what she said, especially as it was not far from the main point of my post. But the famous sentence is wrong as delivered, no matter what she actually believes, and no matter that I was flip in the original post, for two reasons.>Substantively, I think she would, on reflection, say “Second, there are cases in which a wise Latina woman…” and it makes all the difference. There is no reason to believe that Latina upbringing or an extra X chromosome provide a systematic advantage over any other background or sex for all jurisprudence, or even “more often than not”. That would really be racism, because justice and the law are not especially a distinctive part of being a woman, or growing up in the Bronx, and the things that are, like her beloved morcillas, are not much relevant to judging. But to the degree that judging is collaborative, literally as on upper-level appeals courts where panels of judges sit together, and more diffusely, because judges read each others’ opinions and, I suppose, schmoose in the cloakroom and on the golf course and at law school reunions, a judiciary that has more different kinds of people will decide its cases on the average better than a homogeneous one.>Rhetorically, the sentence is wrong for the reason that keeps editors and political consultants up late going over every word of Obama’s speeches, though it wasn’t an important defect in a speech at a law school by a judge, especially as the speech does not say what the sentence says. It became wrong afterwards, when Sotomayor became a public figure of controversy whose every utterance would be picked over by adversaries for things that could be taken out of context and misused. Welcome to the world of national politics, Judge S, where savage little creatures with an instinct for the capillary scour the forest floor for trivia and cheap shot targets.Let me riposte. Whether Michael is right or I am right depends on how you read the referent of “I would hope that a wise Latina woman…” Is the referent all wise Latina women? Or is the referent a single person named Sonia Sotomayor? If Michael O’Hare is correct then Judge Sotomayor was hoping that in general Latina women would be better judges than white men. If I am correct then Judge Sotomayor was saying that she hoped that she personally would be a better judge.The rest of the speech, I think, fits my reading much better than Michael’s.

In Which Julian Sanchez Joins the Special Action Executive of La Raza

Another not very Hispanic-American radicalized by the Republican garbage dumped on Sonia Sotomayor:>A Sotomayor core dump: I’ll cop to sharing some of Yglesias’ irritation at the treatment of Sonia Sotomayor, and if Republicans are managing to get a rise out of my pallid ass, I can only imagine the kind of damage they’re doing to their brand among, you know, real Latinos.  For one, it is basically impossible for me to believe that anyone with two functioning brain cells could read the “wise Latina” speech in full and find the notion that it’s “racist” anything but laughable. It’s been done to death in a thousand other venues, but one more time for those who are just joining us now: Sotomayor is talking about different views of how identity affects judging, and in particular she’s focusing on cases the high courts have decided involving race or gender discrimination. She mentions a quotation attributed to Sandra Day O’Connor to the effect that a “wise old man” and a “wise old woman” will come to the same conclusion. And she wonder’s whether that’s true, because historically some very wise jurists handed down decisions that we now mostly recognize as bad ones. She’s suggesting that someone with the experience of living as a disfavored minority might not have fallen prey to some of their errors…. This isn’t racist, or even particularly controversial.  It’s just obvious.  Consider Justice Henry Brown’s opinion in Plessy v. Ferguson:>>We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.>Let me posit that basically any black man living in Louisiana in 1896 would have understood perfectly well why this is grotesque and misguided, and why “separate but equal” is a cruel fiction. He might not be a better judge on the whole, but he’d surely make a “better” decision in this kind of case. At this point in history, of course, we all understand this—though not in quite the same visceral way—and so a judge of any ethnicity or gender would make a better decision. But there are still cases that might involve somewhat more subtle dynamics—questions, for instance, about when a government policy exerts a “chilling effect” on speech—where a certain kind of experience might make it easier to see what’s going on….>On a related note, I find the “what if a white man said that?” move incredibly grating about 99 percent of the time it’s used, because it’s almost always a way of blotting out all the reasons that it would, in fact, be different. In the instance, it would be weird for a white man to say it because it’s probably not true that the experience of growing up as a white male in the United States specifically enhances one’s understanding of what it means to be a disfavored minority. In other words, it just wouldn’t be true or reasonable in this case—though it might be for a white male who grew up as a religious or ethnic minority somewhere else in the world. So yes, sometimes formally gramatically equivalent statements will have different connotations depending on whether it’s a white person speaking about whites or a Latino speaking about Latinos, because history happened. I realize this is, like, the worst racial injustice ever, but Republicans should realize how insanely tone-deaf they come across when they assert that Sotomayor’s is a “story of privilege” because she was “blessed by Providence with the precisely correct right race-gender two-fer for the moment”—as opposed to poor schmucks saddled with surnames like Bush, I suppose, who had to claw their way into the Ivies on their own merits. Or how it sounds when Fred Barnes engages in bouts of Socratic reasoning like the following:>>BARNES: I think you can make the case that she’s one of those who has benefited from affirmative action over the years tremendously.>>BENNETT: Yeah, well, maybe so. Did she get into Princeton on affirmative action, one wonders.>>BARNES: One wonders.>>BENNETT: Summa Cum Laude, I don’t think you get on affirmative action. I don’t know what her major was, but Summa Cum Laude’s a pretty big deal.>>BARNES: I guess it is, but you know, there’s some schools and maybe Princeton’s not one of them, where if you don’t get Summa Cum Laude then or some kind of Cum Laude, you then, you’re a D+ student.>I feel pretty confident that Fred Barnes has met a few people who attended Princeton, and does not, in fact, believe that they hand out Summas like party favors. So when he goes hunting for some way to cling to the belief that this woman must be a dunce who got some kind of special treatment, it’s hard not to wonder what his priors are. Or here’s Michael Goldfarb on reports that  “Princeton allowed Sotomayor and two other students to initiate a seminar, for full credit and with the university’s blessings, on the Puerto Rican experience and its relation to contemporary America”:>>I went to Princeton but somehow I never got to teach my own class, or grade my own work. One wonders how Sotomayor judged her work in that class, and whether the grade helped or hindered her efforts to graduate with honors.>Now, Goldfarb can’t even have clicked through his own link to read the press release from the 70s about the course. He would have discovered that when the course was launched, all students had for six years been allowed to propose a seminar on material not covered by the curriculum, and that 132 such seminars had been created under those rules…. [A]s you watch these gross distortions pile up, you start coming away with the clear impression that they’re not just the result of simple sloppiness, but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences—and that there’s no need to double-check and see whether that’s supported by the facts in this case.  They just know she can’t have really earned it.>Look, it’s not racist to oppose a Latina judicial nominee, or to oppose affirmative action, or to point out genuine evidence of ethnic bias on the part of minorities. What we’re seeing here, though, is people clinging to the belief that Sotomayor has to be some mediocrity who struck the ethnic jackpot, that whatever benefit she got from affirmative action must be vastly more significant than her own qualities, that she’s got to be a harpy boiling with hatred for whitey, however overwhelming the evidence against all these propositions is.  This is really profoundly ugly. Like Yglesias, I don’t think I’m  especially sensitive to stuff like this, or particularly easily moved to anger, but I’m angry. I don’t think Republican pundits really appreciate the kind of damage they’re probably doing, for no reason I can discern given the slim odds of actually blocking the nomination. Which, perhaps, goes to Sotomayor’s point: They really have no idea how they sound to anyone else.

Sotomayor vs. Cardozo

Michael O’Hare gets one wrong:>The Reality-Based Community: Diversity: One of Sonia Sotomayor’s lower-candlepower remarks was the one about a Latina judge making a better decision yada yada…Actually, it was a high-candlepower rhetorical move, as Michael would realize if he had read Sotomayor’s speech more carefully.OK, boys, girls, and xenosophonts. Ready? Let’s role the videotape:Judge Sotomayor begins this part of a speech with a generally-accepted pious American liberal platitude:>A Latina Judge’s Voice: 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…Everyone expects her to agree with O’Connor and develop the point. Instead, she cuts across the grain by questioning the platitude, introducing doubt into the issue. She then wakes the audience up by violating their expectations:>I am not so sure… that I agree…Now that she has the audience’s attention, she is playing for high stakes: she must justify her introduction of doubt into the mix. She does so by first making a general point:>First… there can never be a universal definition of wise…Thus it seems likely that men’s wisdom and women’s wisdom will be somewhat different, and thus that their wise judgments will be somewhat different–not better and worse, but different. Then, however, she raises the stakes even higher with her assertion:>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…Here she has raised the stakes by committing a form of heresy against modern liberal American values. Note that she is choosing her words carefully: she–for she is the “wise Latina woman with the richness of her experiences” has not said that she is or will be a better judge (contra Michael O’Hare, who claims that she said “Latina jduge making a better decision yada yada…” which she did not say) but rather that she personally “hopes” that she will be a better judge–and one is always allowed to hope that one will turn out to be the best.At this point in the speech she is all in. How can she justify her hope that her experience of being a brilliant upwardly-mobile Latina woman in twentieth century America will make her a better judge? She has the audience’s complete attention by now, for that is a very ballsy assertion to make. And she delivers in 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…This is game and set for Sotomayor. Holmes and Cardozo were great judges. Sotomayor is saying: even though they were great judges they judged wrong in cases of sex and race discrimination. Sotomayor is saying: I am a better judge in cases of sex and race discrimination than Holmes and Cardozo. Thus there is at least reason to 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…”This is game and set for Sotomayor. But she still has to win the match. Why is there reason to hope that we judges going forward can do better than Holmes or Cardozo did? It is not that people who don’t look like us or have the same plumbing that we do can’t have the empathy–the “wise and understanding heart” that Solomon begged of The One Who Is–to be a good judge:>I… 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…. [N]ine white men on the Supreme Court in the past have done so on many occasions…But it is hard work to always remember to have and use your wise and understanding heart:>However, to understand takes time and effort, something that not all people are willing to give. For others… experiences limit their ability to understand…. Others simply do not care… And it is perhaps slightly less hard work for people from groups that have historically been on the outside:>Hence… 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. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage…But when will these differences in her judgments from those that Holmes and Cardozo would have made be good differences, and when will they be bad differences? This is the lesson Sotomayor draws:>Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that… I owe [the parties before me] constant and complete vigilance in checking my assumptions, presumptions and perspectives; and ensuring that, to the extent that my limited abilities and capabilities permit me, that I reevaluate [my assumptions, presumptions and perspectives] and change [them] as circumstances and cases before me require. I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations…. [W]e who judge must not deny the differences resulting from experience and heritage but [must] attempt… to judge when those opinions, sympathies and prejudices are appropriate.Match to Sotomayor.To call this rhetorical journey a “lower-candlepower remark…” and to summarize is as “about a Latina judge making a better decision yada yada…” is highly unfair.

Just-So Story of teh Aeon

iayork:>How the aphid got its wings | Mystery Rays from Outer Space: While nothing can match the pure undiluted awesomeness that is the parasitoid wasp/bracovirus symbiosis[1], there are other symbioses that are at least in the same ballpark.  The latest one I’ve learned about is the relationship between a densovirus and the rosy apple aphid[2]. I can’t do better than to quote the abstract:>>Winged morphs of aphids are essential for their dispersal and survival. We discovered that the production of the winged morph in asexual clones of the rosy apple aphid, Dysaphis plantaginea, is dependent on their infection with a DNA virus, Dysaphis plantaginea densovirus (DplDNV). Virus-free clones of the rosy apple aphid, or clones infected singly with an RNA virus, rosy apple aphid virus (RAAV), did not produce the winged morph in response to crowding and poor plant quality. DplDNV infection results in a significant reduction in aphid reproduction rate, but such aphids can produce the winged morph, even at low insect density, which can fly and colonize neighboring plants. Aphids infected with DplDNV produce a proportion of virus-free aphids, which enables production of virus-free clonal lines after colonization of a new plant.[2]>So without the virus, the aphids don’t grow wings, and they’re not able to disperse to new sites. When infected, they can sprout wings, and spread to a new site. Presumably without a flying aphid to carry them the virus can’t disperse, either.>Apart from anything else, my kids, having learned about this at dinner[3], are now hoping to have their wings turned on the next time they’re infected with a virus.>1. Bioweaponized wasps shooting mutualistic immune suppressive viruses at their prey! Pew! Pew! Pew!>2. Ryabov, E., Keane, G., Naish, N., Evered, C., & Winstanley, D. (2009). Densovirus induces winged morphs in asexual clones of the rosy apple aphid, Dysaphis plantaginea Proceedings of the National Academy of Sciences, 106 (21), 8465-8470 DOI: 10.1073/pnas.0901389106>3. We have interesting dinner conversations at my house

links for 2009-05-30