Diversity at the Expense of Unity

Much has been made by conservatives about the line muttered by Judge Sotomayor. If you want to look at the speech in context, then you can visit this link here. She gives the speech at UC Berkeley, speaking about the need for more Latino representation in the judicial system. When you hear the quote, it's hard to imagine a context in which it doesn't sound at least a little bit racist or sexist. In this part of the speech she's talking about how judges can't help but allow their rulings to be affected by their backgrounds. Here's an excerpt that includes the quote:

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. 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.

After reading the speech, particularly this section, it seems that the problem has more to do with the fact that those prior justices who perpetuated discriminatory decisions allowed for their experiences and prejudices to influence them. If a white male judge is going to discriminate against minorities and women because it may take time and effort that he is not willing to expend, then by the same reasoning why wouldn't a female latina judge discriminate against white males. And indeed, it seems that this is the case with Judge Sotomayor as Charles Krauthammer points out in this article:

Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no blacks had scored high enough to be promoted.

Ricci (with 19 others) sued.

That's where these two American stories intersect. Sotomayor was a member of the three-member circuit court panel that upheld the dismissal of his case, thus denying Ricci his promotion.

This summary ruling deeply disturbed fellow members of Sotomayor's court, including Judge José Cabranes (a fellow Clinton appointee), who, writing for five others, criticized the unusual, initially unpublished, single-paragraph dismissal for ignoring the serious constitutional issues at stake.

Two things are sure to happen this summer: The Supreme Court will overturn Sotomayor's panel's ruling. And, barring some huge hidden scandal, Sotomayor will be elevated to that same Supreme Court.

Thomas Sowell goes into more depth about this quote that has been taken out of context, and the implications of such a line of thinking. You can read the article in its entirety here. Another excerpt:

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.

The underlying problem to all of this, however, is that too often in today's culture we value diversity at the expense of unity. When my dad brought my family over to the United States one of the biggest things he emphasized to my mom and brother was assimilation into the American culture. He probably didn't have to go about it in such an extreme fashion, and it came with some obvious drawbacks - my brother and I do not speak Portugeuse and we have little knowledge of the country of my parent's birth - but the greatest benefit, I think, is that my brother and I revere this country and have benefited from every advantage that this country has to offer. My immigrant parents run successful small businesses that have sustained them for the last 30 years. My brother served as a Marine reserve, was trained and educated to be a civil engineer, and now has a family in an affluent part of Orange County. And I don't have much to boast of yet, but I'm in the process of receiving an advanced degree from a major university and at least I don't have a criminal record. Although ethnically I am both Latin and Asian, I have not had to worry about the supposedly disadvantaged background of my family's past because I am too occupied with the benefits of living as a privileged American.

My man, Jay Nordlinger, touches on this point in a recent Impromptus column:

The news is drenched with Sotomayor now, and also drenched with the word “Hispanic”: She’s Hispanic, you know. She would be the first to tell you (though maybe she would say “Latina”).

An interesting word, and concept, “Hispanic.” I have many Cuban-American friends, in South Florida and elsewhere. They rarely call themselves Hispanic, and they, in turn, are rarely called Hispanic. Why? Well, it’s kind of a political term, isn’t it? It relates to the grievance culture, to affirmative action, to apartness. “Hispanic” is not so much E pluribus unum as “diversity” and “multiculturalism.” “Hispanic” is for those who don’t want to melt into the pot.

Some years ago, I did a piece on Indian Americans — not Cherokees and the like, but those with roots in India. My theme was the Republicanization of Indian Americans. There are some of their number — just a few — who want to be known as “Asians,” and who want to be part of the grievance culture. They want to grouse about The Man and so on. Other Indian Americans just think of themselves as Americans, or people.

All of this relates to another interesting word: “minority.” Funny what groups are called “minorities” and what groups are not. I never hear Jews spoken of as a minority, or Japanese Americans, or Chinese Americans (or Indian Americans). Sometimes, you even get women thrown in — as in the phrase “minorities and women.” What kind of women are those? The kind like Ellie Smeal, I would say, rather than the kind like — oh, Laura Bush.

And that reminds me of a bumper sticker, seen in the ’08 campaign: “She’s Not a Woman, She’s a Republican.” The “she” in question was Gov. Sarah Palin.

And you remember that delicious fact from the Michigan Law School affirmative-action case? The question arose, in the school’s admissions office, whether Cubans were Hispanic. And one official said, “But they vote Republican, don’t they?”

Some on the left like to say that “race is a social construct.” I think that, to a large degree, they’re right on that. Some other things are social constructs too. And wouldn’t it be nice if people thought of themselves as people, or — in certain circumstances — Americans? Especially when they’re going to serve on the Supreme Court?

To hell with “wise Latinas.” Our simple requirement is wise people. Justice is supposed to be blind, including colorblind. Not in today’s America, it isn’t — and so many people are proud of that.