[CORRECTION: In Release 1.0 of this post, which should have remained in Beta, I misidentified “Oren,” a commentator on Jonathan Adler’s post with whom I took issue, as Volokh Conspirator Orin Kerr. Almost equally embarrassing, I also misspelled Adler’s name. In my dotage it’s getting harder to tell the difference between typos and simply being dumb. I think both of these errors were of the latter variety.]
Jonathan Adler, in a Volokh Conspiracy post on Anti-Anti Sotomayor, argued that “it is inaccurate and unfair to argue, on the basis of this and other speeches, that Sotomayor is a ‘racist’” and that “calling her a ‘racialist is just as bad.” To acknowledge, Adler continues, “that ethnic background and personal experience can and should influence judicial behavior, even while disparaging the ideal of judicial objectivity, is not to embrace racial bigotry.”
I think Adler is right on “racist” but wrong on “racialist,” as I argued in a comment to his post:
Describing Sotomayor as a “racialist” is not at all the same thing as an accusation that she “embrace[s] racial bigotry.” A racialist is simply someone who believes in racial essentialism, that there is a substantive content to race that goes beyond mere pigmentation and deeper than such cultural artifacts as tastes in food or music. It is fair, I believe, to describe Sotomayor as a racialist not so much because of her “wise Latina” sentence but because of an even more dramatic sentence that introduced the paragraph that her “wise Latina” belief concluded:
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.
Someone who is comfortable with “inherent physiological of cultural differences” is a racialist. (And what, by the way, is the difference between an inherent cultural difference and a physiological difference?) [I have also made these points here, here, and here.]
Adler’s argument that Sotomayor has done no more than “acknowledge that ethnic background and personal experience can and should influence judicial behavior” is a common refrain among those who think Sotomayor’s critics have gone overboard. Commentator “Oren” (NOT Volokh Conspirator Orin Kerr) makes the same point in a reply to my comment to Adler’s post:
What if I don’t believe in racial essentialism as an inherent quality of people of a particular race but nevertheless believe that the experience of growing up latino/african american/vietnamese/… , including the social constructs of those communities, plays a huge role in how one forms basic notions of society and, by extension, law and government.
Had Sotomayor been adopted by a middle-class white family in Iowa (or the children of that family adopted by her parents), I would have to say that the manner, community and environment in which the child was brought up vastly outweighs any essential racial qualities, if they even exist.
To me, this seems entirely uncontroversial — our life experiences shape the way we are and, as an empirical matter that I believe is indisputable, children of different races experience drastically different upbringings. Does that make me a racialist? I don’t think so….
Re Oren’s first point, I would say it’s clear that he isn’t a racial essentialist, but it’s not so clear that Sotomayor, given her easy acceptance of “inherent physiological” racial and ethnic qualities, isn’t. Re his second, I agree that the view that we are shaped by our “life experiences,” etc. is “entirely uncontroversial,” and if that’s all Sotomayor had said critics like me wouldn’t be harping on her comments.
I also think, however, that there’s a larger issue here, the argument that ethnic chauvinism is as American as apple pie. This argument was made nicely by my old and good friend, Leo Ribuffo, a history professor at George Washington, in a May 30 posting on the conservative-libertarian history list:
Many conservatives appear to have become so obsessive about the so-called culture wars of the past two decades that they are unable to recognize “old fashioned” New Dealish ethnic politics when it is staring them in the face. The extraordinary increase in the number of Roman Catholic federal judges during the 1930s was certainly not caused by a sudden increase in the aggregate I Q of Catholic lawyers starting on inauguration day 1933. Consider in particular the case of Justice Frank Murphy, a man of slim legal qualifications, who owed his Supreme Court seat to his religion, his “empathy,” and his recent defeat for re-election as governor of Michigan. Murphy’s empathy did him credit since he was more skeptical than his more learned brethren of the wartime detention of Japanese-Americans. Sotomayor’s “wise latina” remark was the kind of bland ethnic posturing that has been standard fare in American politics for a very long time. New Deal Boston Mayor James Michael Curley would undoubtedly consider her too soft on WASPs. In short, as Randolph Bourne observed in the 1910s, what we now call multiculturalism IS the American form of nationalism. Even Newt Gingrich, who actually understands the New Deal, knows that even if he can’t bring himself to admit it at the moment.
Andrew Lazarus, in a comment on Adler’s post, was presumably attempting to make a similar gotcha! point when he wrote:
OMG, Justice Alito is race-obsessed. Via Yglesias, I learn of Justice Alito’s speech “Reflections on growing up as an Italian-American in New Jersey”.
To which I replied:
I haven’t been able to find the text of this speech. Thus it would be helpful, and relevant to this debate, if Lazarus, Yglesias, or someone could provide some quotes from it where Judge Alito stated his belief, or even hope, that someone fortunate enough to have grown up Italian or Italian-American (whether their Italian qualities were cultural or physiological or inherited cultural) could, as a judge, make “better decisions” than non-Italians.
To my friend Leo Ribuffo and others who claim that Sotomayor’s critics miss the point that she is merely a modern exponent of “‘old fashioned’ New Dealish ethnic politics,” I would reply that it is they who are “unable to recognize” a crucial difference between modern “multiculturalism” and that preached by Randolph Bourne et al. and practiced by all the urban machine pols in New Deal days: the laws passed in the wake of the civil rights movement, and the invigorated consensus in favor of what Myrdal called “the American creed,” i.e., the principle that individuals here have a right to be treated by the state “without regard” to race, etc., made much of what had been standard operating procedure in New Deal America, and before, both illegal and widely regarded as morally wrong.
I am of course aware that most people on the left these days, and even more in academia, the mainstream media, and similar precincts (whether or not they see themselves as on the left) have rejected that principle, but all available evidence tends to confirm that a substantial majority of Americans still accept it, some of us fervently. (See the recent, dramatic poll discussed here.)
In fact, I believe that even many of those who support the sort of multiculturalism mouthed by Sotomayor, and the racial preference policies that flow from it, on some level accept the without regard principle themselves, or at least are unwilling to admit forthrightly that they have rejected it. I have argued here too many times to cite that if preferentialists really, really believed what they preached, they would have long since demanded the repeal of the civil rights laws that race preferences flout. They, of course, don’t do that.
For example, just a couple of weeks ago I wrote to a friend:
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.
Or again:
I’ve argued a number of times that if proponents of racial preferences believed their own argument — that it is not only allowed but almost mandatory to discriminate on the basis of race in order to promote any number of worthwhile goals (“diversity,” compensation, “inclusion,” representation, etc.) — they would demand the repeal of the various civil rights laws, especially the Civil Rights Act of 1964, that bar discrimination by insisting that, as Title 42 U.S.C. 2000d puts it,
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
No person, not “no black person” or “no minority person.”
And again:
Finally, ask yourself this: since racial preferences are incompatible with the principle animating the civil rights acts, i.e., that every individual has a right to be treated “without regard” to race, creed, or color, would you be willing to repeal the civil rights laws in order to make racial preferences indisputably legal?
From 2006:
How many preferentialists would be willing not only to sacrifice civil rights laws to preferences — after all, they’re already doing that every day — but to admit that the “without regard” principle should not simply be disregarded but repealed?
And to those who think discrimination against Asians and whites is no worse than discrimination in favor of legacies:
Discrimination on the basis of race or religion is simply not the same as discrimination on the basis of athletic ability or legacy status. Anyone who supports racial preferences logically should call for the repeal of all laws banning racial discrimination.
There are more, going back to 2003, but you get the idea. Besides, even modern (or postmodern) multicultists are not supposed to believe that one culture (even if it is inherited, as Sotomayor seems perfectly content to believe hers is) is “better” than another. But then, maybe Ribuffo et al. are right, since that’s just the sort of thing almost everyone in Randolph Bourne’s America believed, just as it was conventional wisdom in the ethnic confederacy of the New Deal Democratic Party.
