[NOTE! May 24. This post has now been UPDATED three times. Since these UPDATES have become the tail that wags the bedraggled dog of this post, I think you should read them.]
How could I not like Stuart Taylor’s masterful dissection of Judge Sonia Sotomayor’s identity politics in his current National Journal column? After all, much of it echoes what I argued here and here, only better.
“So accustomed have we become to identity politics,” Taylor writes,
that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.
Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” — and had proceeded to speak of “inherent physiological or cultural differences.”
Taylor’s most effective demolition of Judge Sotomayor’s fixation on her own identity, however, is not what he says; it is his extensive, unfiltered quotation of what she has said. Overall, an impressive performance (Taylor’s, not Sotomayor’s).
So, what’s not to like? Well, as it happens, something. Taylor, smart and sensible as he is, hasn’t altogether recovered from being a liberal (albeit a moderate one). Consider, to see what I mean, how he responds to a point I made in my last Sotomayor post. After quoting her outrageous hope “that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life,” I then added the following:
Although Judge Sotomayor’s comment is indeed extreme, and deserving of more attention than it has received [which Taylor’s current column does much to remedy], doesn’t it in essence simply state what all the “diversity” arguments logically imply? Most diversiphiles may not assert — indeed, may not even believe — that a wise Latina woman/black/whatever will more often than not reach a better conclusion than a white male, but must not all diversiphiles believe that a court with such a person or persons will most of the time reach better conclusions than a court without? If that weren’t true, after all,what would be the point of “diversity,” aside from “racial balance for its own sake”?
How does Taylor respond? Well, first, he is as outraged as any reasonable person should be at her offensive assumption (it doesn’t seem to be merely a “hope”) that her Latina-ness equips her to be a better judge than others, especially males, who lack her ethnic and gender identity. But then he gives the obligatory nod to “diversity,” adding that he share’s
Sotomayor’s view that presidents should seek more ethnic and gender diversity on the bench, so that members of historically excluded groups can see people like themselves in important positions and because collegial bodies tend to act more wisely when informed by a diversity of experiences.
One flaw, among many, of supporting ethnic and gender identity “so that members of historically excluded groups can see people like themselves in important positions” (aside from the question of whether courts should be representative bodies) is that, as that notion is interpreted and applied today, only some groups seem to deserve to “see people like themselves” in those positions. If there is concern that, say, born again Christians are “underrepresented” on the bench, I’ve somehow missed it. The notion also assumes, incorrectly I believe, that all members of even the favored groups are “like” one another, as though racial and ethnic identity give everyone the same “experiences.” If that were the case, there would have been more joy among blacks at Clarence Thomas’s appointment and among Hispanics at the failed nomination of Miguel Estrada to the Court of Appeals for the District of Columbia.
Taylor, in short, has no use for Sotomayor’s claim that wise Latinas will reach better judicial conclusions than white males, but he nevertheless believes that a court with a wise Latina would reach better results than one with only males, no Latinas or Latinos, etc. His justification for this faith (I don’t know that there is evidence for it) is that “collegial bodies tend to act more wisely when informed by a diversity of experiences.”
Now on one level this may well be true, but the level is so high, so abstract, so removed from the actual “experiences” of courts that it becomes a banality, a sentiment more than an analysis. That sentiment, appealing as it may be, has no real bite (or should have no real bite) in the actual controversies over “diversity” today. That is the case because, among other reasons, it assumes what it asserts: first, that simply being Latina or black or female or whatever is enough to guarantee relevant “diversity of experience,” and second, even if that were true, that the “diversity of experience” provided by racial, ethnic, or gender identity is more important than the virtually endless plethora of possible “experiences” that no one cares about and no one demands as pre-requisites for judicial appointments. Military experience? Growing up in a very large/very small family, perhaps with a single parent? Handicap? Experience working on a farm? Experience as a consumer, i.e., on the receiving end, of the criminal justice system? Athletic success/failure? Poverty? Manual labor? Experience as a K-12 teacher or junior college student? The possibilities of relevant “diversity of experience” are almost endless.
The problem, in short, with Taylor’s endorsement of “ethnic and gender diversity” is not that diversity is bad but that, on the level where it is true, it is a banality. And where it is not true is the very place where its rubber actually meets the road of contemporary controversy — in effect equating identity and its accompanying experience with race and ethnicity, and thus leading to and reinforcing our current regime of ossified racial preference. There, it suffers all the inanity and offensiveness of Sotomayor’s identity über alles assertions so well skewered by Taylor in his more sensible, and fortunately more typical, analysis.
UPDATE [23 May]
A very thoughtful liberal friend (yes, there are thoughtful liberals!), who prefers to remain anonymous, has emailed a response to my one-sided dialog here with Stuart Taylor. Since his argument is quite good I’d like to share it with you, along with my thoughts about it.
I submit that, to pick an extreme example, it would seem exceedingly odd to most (I suspect) people if the Supreme Court had still never had a single woman or black justice, at a time when half of law students are women and a substantial percentage of state Supreme Court justices are too, and when there are substantial numbers of well-qualified blacks available, etc.
Now, in that event one might say that the best-qualified candidates in the eyes of the presidents who have appointed all recent justices just happened to be white males. Every one of them. But most people, I think, would see this as a rationalization for continuing an old-boy-network approach to things and freezing out groups that had, of course, long been frozen out by raw discrimination. And the appearance created would be much more destructive to the body politic and national unity, in my view, that a slight compromise on qualifications for the sake of pushing a few members of traditonally discriminated-against groups forward.
If you are prepared to say that an all-white-male Court throughout American history down to 2009 would be fine, unless there were evidence of deliberate discrimination, then I respectfully disagree.
If, on the other hand, you acknowledge that there would be a problem with my hypothetical, then the question becomes: OK, so we want SOME gender or ethnic diversity for its own sake; how much do we want? And such calculations devolve into a standard cost-benefit analysis. I would make a slight compromise on the qualities I might prefer in a justice to get a Hispanic woman; I would not make a big compromise.
Of course, a nine-member Court can only have so much ethnic diversity, or other forms of diversity, including the professional diversity that is so lacking on a Court made up entirely of former appellate judges most of whom went to Yale or Harvard. So people such as me, who want a light finger on the scales for the sake of diversity, have to pick our shots. One reason for the focus on Hispanics instead of (say) born-again Christians is that I am not aware that born-again Christians as a group have been complaining that none of them are on the Court; maybe those whose passion is abortion, for example, feel that the five Catholics now on the Court are sufficient to cover the religious point of view.
As I said, this is a strong argument. Let me begin responding by stating (more for the record — there is a record, isn’t there? — than as part of this debate) that I don’t believe possible nominees to judicial positions have a right to be treated without regard to their race (or ethnicity, etc.). Since these are discretionary, political appointments, it can hardly be argued that all political considerations are out of bounds. Thus I don’t believe disappointed non-nominees have available to them the same strong arguments that can be made by college applicants or, say, firemen in New Haven who are denied admission or promotion because of their race. That doesn’t mean, however, as I will argue in a moment, that it is wise or good for presidents to place heavy thumbs on the racial scales. Far from it.
Next, let me emphasize an important point that my friendly correspondent did not argue. Taylor, recall (see above, if you don’t), gave two justifications for “diversity” on the Court:
1) “so that members of historically excluded groups can see people like themselves in important positions,” and
2) “because collegial bodies tend to act more wisely when informed by a diversity of experiences.”
My correspondent, however, ignores No. 2 altogether, and bases his whole argument on No. 1. I don’t mean to say that he thus concedes that No. 2 is too thin a justification, that the number of cases or controversies that reach the Court where a Justice’s Latina identity might actually add something of value to the deliberations is quite small, and that even in those rare cases (assuming one or two exist) what is really valuable is not the unique experience she brings to the bench but that her mere presence makes the result appear fairer than it otherwise would, i.e., back to No. 1. In a longer missive, that is, my friend may well have not conceded this point, but it’s still worth noting that he did not argue that “diversity” makes courts “act more wisely” here.
I don’t think it unfair for me to say that the thrust of my friend’s argument reduces to the same point that I quoted Justice Ginsburg making, here: that having no women or only one woman or, by extension, no Latinas on the Court simply “doesn’t look right.”
“[I]t would seem exceedingly odd to most (I suspect) people,” he writes, if after all these years the Court “had still never had a single woman or black justice….” Any presidential attempt to argue that the only criterion was quality, presumably no matter how truthful, would be seen as “a rationalization for continuing an old-boy-network approach to things and freezing out groups that had, of course, long been frozen out by raw discrimination.” Moreover, “the appearance created” would be destructive, etc.
Let us grant that this argument is true. Quality arguments are regarded by many as mere rationalizations; “the appearance” of an all white and/or all male Court doesn’t “look right.” This argument may may be entirely symbolic, may rest entirely on appearances, but symbols and even appearances are important. It is not a weak argument.
The strongest response to it, I think, is not to argue that it is wrong, that symbols of inclusion are not powerful and important. Rather, the strongest reply is to assert that its appealing symbolism is achieved at too high a cost and, even more significant, that the symbolic argument opposing it is even stronger.
That opposing argument, of course, is the core value (or perhaps formerly core value) that every American should be treated by his government “without regard” to race, creed, color, or, more recently, gender. Now I’ve already acknowledged (if begrudgingly) that presidents have the discretion to disregard that principle, at least to a degree, when making a small number of appointments, but I’ve also insisted that doing so is not wise or good.
Actually, disregarding the “without regard” principle — and the necessarily accompanying argument that it should be disregarded — is worse than unwise. It’s a contagious, corrosive argument. It reinforces the perception that merit arguments are mere fig leaves for racism. It encourages everyone to disregard it — if the president can cast aside the “without regard” principle whenever she wants to appeal to a particular constituency, everyone will ask, why can’t the employer, the admissions officer, the contracts office, etc.? Does anyone believe that, once the point has been granted that it is legitimate to set aside the “without regard” principle for appointments to “collegial” courts, it will be possible to resist it anywhere “collegial” activity takes place or, for that matter, for appointments to benches that are not “collegial,” such as the district courts?
Symbolism is important, but the symbol of non-discriminatory equality is far more powerful and far more important than the symbol of racially and ethnically proportional representation throughout society. And the cost of discarding and thus undermining the “without regard” principle is far greater than the benefit of having the race, ethnicity, and gender mix that “looks right.”
You are correct to infer that I think that the argument that adding a Hispanic would make the Court more wise is weak, though not nonexistent. I think that adding Thurgood Marshall, on the other hand, may well have given his colleagues a far better appreciation of racial realities than they had before.
I take it that you would indeed take the position that an all-white-male Court through our history and down to today would still be better than presidents taking into consideration ethnicity and sex. Looking for a justice from, say, the South, or the West, or anywhere except Harvard, would be different, I assume, given the special toxicity of using race and sex as selection criteria.
I also wonder whether the political world is so deep into diversity as to make your approach (which I share to a considerable extent) untenable in the real world though appealing in principle. The Democrats seem hopelessly beholden to identity politics. And the Republicans, who look more and more like the white male party, seem to think that they only dig themselves a deeper hole if they take the diversitycrats on. See, e.g., President Bush’s applause for Grutter, plus the absence of any very great protest by other Republican leaders. Cf. the first President Bush’s pretense that Clarence Thomas was “the best qualified.”
Here’s a slightly edited version of my reply:
I think you’re right about Marshall. But also, given his record of victories with the [NAACP Legal Defense Fund] and subsequent judicial experience, I think a persuasive argument can be made that it didn’t require a racial thumb on the scale to justify his appointment, as it did … for Clarence Thomas. (Ironic admission against interest: since Thomas, to my way of thinking, has turned out to be an excellent Justice, he’s actually an exhibit for the proposition that the effects of affirmative action aren’t always bad….)
As for my feeling about “an all-white-male Court” from the beginning of time on, I try to be an absolutist on this issue, but I can’t quite make it. Non-discrimination is and should be both a principle and a rule, but there are exceptions, such as the (very rare but not non-existent) bona fide occupational qualification (undercover agent in a black gang, etc.). And, as I’ve said, potential Supreme Court nominees can’t claim, and presidents have no legal obligation to recognize, a right to be treated without regard to race, etc. So, I’m conflicted about your question, but here are a few responses:
• Recognizing this ploy as something of a cop-out, I could argue that race-based appointments were justifiable immediately on the heels of Jim Crow etc., much as the original proponents of affirmative action (unlike its modern defenders) went to great lengths to emphasize that they did not reject the “without regard” principle, that AA was a drastic but strictly temporary measure. In this they were rather like those who justify prior censorship of troop ship schedules during wartime without rejecting the First Amendment in principle. Exception proves the rule, or some such. So, I have some trouble saying race should never, ever have been taken into account, but I have no trouble saying it should not be now and into the future, down the slippery slope where Hispanics, Native Americans, Muslims, etc., etc. would all have to be “represented.”
• In fact, if you’re allowed the hypothetical — an all white court down through history up to today — I could reply with my own counter-factual, that the best solution would be for it never to have been taken into account. Not to exclude, not to include. But that’s water over the dam. If we let bygones be bygones, I have no hesitation in arguing that from now on an all-white-male Court would be preferable to a president implementing and honestly describing even your slight-thumb-on-the scale policy by announcing, “I think diversity is so important that I’m willing to compromise on quality (but only a little), and so I hereby nominate Ms. Latina to the Court. She’s almost the best person I could find.”
• And yes, I think “balancing” on any criteria other than race, religion, ethnicity — such as your geographic example — would be unobjectionable. Just as I argue about college admissions, I rather like “merit” as traditionally defined myself, but I think colleges both are and ought to be free to ignore it in favor of preferences to just about anybody they want … except on the basis of the rightly protected categories of race, religion, ethnicity.
• As for whether we’re “too deep in diversity” to get out, I’m afraid you’re right. “Diversity” has become an article of faith, and its entrenched legions of affirmative action officers, etc., may now be buried too deep to uproot. But we can try. And there are some historical examples that provide hope to those of an optimistic disposition: look at the odds facing Churchill up to Pearl Harbor; Republican presidential prospects after Goldwater; Republican presidential prospects after Nixon; Republican Congressional prospects before 1994; etc. And I certainly hold no brief for the Republicans, who after all gave us majority-minority districts, backed away from Rep. Cannady’s colorblind bill, failed to support Prop. 209 and the subsequent state initiatives in any significant way, didn’t take the stand they should have on the Michigan cases, etc., etc.
My one hope is based on the fact that I believe that not only a majority but a preponderant majority of the American people still believe strongly in the “without regard” principle, as evidenced by the votes in every state except Colorado where the question was presented (despite massive distortion from the opponents) and by overwhelming survey data where the questions have been fairly presented, i.e., not do you support affirmative action, etc.
UPDATE III [24 May]
I had some additional thoughts, and sent my friend the following.
Honesty is important. If a policy is good, wise, and just, shouldn’t it be possible to describe it accurately? With that in mind, would you really be comfortable with a president, or anyone, making a decision re hiring, admission, etc., saying what I had the president say above, i.e., that diversity is so important that we must compromise (though only a little) on quality? Insofar as you are concerned about the “appearance” of justice, don’t you worry that such compromises, honestly described, are insultingly patronizing?
As you are no doubt aware, the real true-believing diversiphiles have no such worries. Unlike you, they have discarded the “without regard” principle lock, stock, and barrel. They honestly believe, or at least claim to believe, in “race consciousness,” that everyone should be treated with regard for race, etc. They don’t have to compromise any on quality in their hiring, admissions, etc., they say, because they believe that race etc. is a legitimate component of “qualifications.” That’s why they can so easily argue that if it’s legitimate to give preference for geography, athletic ability, legacy status, etc., it’s legitimate to give preference based on race. Race, to them, is just one more identifying characteristic, like all the others.
Here’s my question for them: If you really believe that race should no longer be treated as a special, protected category, that it is perfectly legitimate to distribute benefits and burdens based on race, why not end our current hypocrisy on the issue, not to mention endless litigation, and simply repeal all the civil rights legislation whose text (accurately reflecting the purpose and intent of its drafters) requires that people be treated “without regard” to race? (See Kennedy and Johnson Executive Orders on Affirmative Action, 1964 Civil Rights Act, etc.) It would not be necessary to repeal or amend the 14th Amendment since the Court has already proved itself more than capable of interpreting “equal protection” to allow racial preference. Any diversiphile not willing to do that, it seems to me, is a hypocrite.
You yourself are clearly not one of these true-believing diversiphiles. You’re willing for the state’s thumb to exert only an ever so slight pressure on the racial scale, and you clearly recognize the compromise with valid principle required to do even that. But since you asked me whether an all-white-male Court forever was an acceptable result of my adherence to the “without regard” principle, let me ask you: knowing what you now know, would you have advised the drafters of the 1964 Civil Rights Act to tone down their colorblind language, to allow reasonable and well-meaning state actors to take race into account? To promote honesty and avoid hypocrisy and legal sleight-of-hand, shouldn’t that Act and others be revised to allow even the small thumb pressure you advocate? And, going back a bit farther in our hypothetical time machine, would you have told John Marshall Harlan to cool it with his talk of a “colorblind Constitution”? Should Thurgood Marshall and the NAACP/LDF have been more qualified and nuanced in their endorsements of colorblind equality through the years up to, and especially including, Brown? (See my Historical Brown-Out.)