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The Sotomayor Precedent

By W. James Antle, III on 6.2.09 @ 2:47PM

Since we have both started to repeat ourselves to no obvious effect, this will be my final post in my Sotomayor exchange with Daniel Larison. Just a few quick quick points in response to his latest.

Larison: ... I would insist that conservatives who have sympathies for particularism and decentralism ought to criticize Sotomayor for just about anything else besides her statements about her identity, which Jim has halfway admitted she is "entitled to celebrate."

I've not "halfway admitted" it. I admit it wholeheartedly. She is perfectly entitled to be proud of where she comes from, who her family is, and what her experiences have been. She is entitled to celebrate that in the public square. What she is not entitled to do, in my view, is to argue that there is a specifically Latino way of judging if she wants a seat on the Supreme Court. There is never any shortage of boneheaded statements on the mainstream right and Larison may have found some regarding Sotomayor that I've managed to miss. But the bulk of criticism of her Latina lecture that I have seen -- and certainly the entirety of my criticism -- has not been her discussion of her background. It has concerned her arguments with Miriam Cedarbaum and Sandra Day O'Connor about impartiality and race neutrality.

Larison: Her critics keep talking about what would have happened to a white man had he said something comparable. Well, consider what is going to happen in the future to anyone on the right who expresses even a smidgen of pride in his culture or heritage after the blatantly unfair interpretations her words have received.

I've already said that if a nominee says his whiteness will make him a better judge than a Latina, I am happy to see him disqualified. Such a statement goes well beyond "a smidgen of pridge in his culture or heritage." The Obama administration and Sotomayor herself have already decided they don't want to defend such a statement on its merits.

Larison: As bad as the double standard is today, it can always get worse. Indeed, if the critics believe in the reality of said double standard, they must know that flinging these epithets will simply increase the disparity of standards. They may think they are redressing the imbalance by applying an absurd standard to all...

Two points: I don't think avoiding White Logic, Black Logic, and Latina Logic on the Supreme Court is an absurd standard to apply. And the standards that Larison finds too restrictive won't be relaxed when Sotomayor is confirmed.

Larison: On the Ricci case, I have to keep driving home the point that one can believe that the panel's ruling was entirely consistent with current law and that Ricci and his co-workers were shafted, as Jim puts it.

Fine. Then let the case get a full hearing so the American people can see what the law does to them. Sotomayor's participation in an effort to sweep the case under the rug has been the reason for criticism of her on this score, not her application of civil-rights law.

Larison: The idea that no one is questioning whether the New Haven firefighters in the case have been badly mistreated is odd. For the last week and a half, it seems as if quite a lot of people have been openly and actively questioning this very thing.

Yes, but it hasn't been multiculturalists doing the questioning, has it? See what happens when you write about affirmative action in a college newspaper.

Larison: I'm sorry, but if we are talking about the real world, could we remember back to the days of 2008 when Obama was routinely accused of racism or at least of sympathy with racists, and we were treated to more than a few celebrations of "Real America"?

So "Real America" and criticism of Jeremiah Wright are bad, and I'm the one setting absurd standards for racism? And there were no widely accepted celebrations of Obama from the perspective of the black American experience?

Larison: So Jim thinks her statement was racialist, and not racist?

Yes, I think the specific statements I have criticized have racialist implications but I don't think the entirety of her record supports the charge she is a racist.

I'll end with a prediction: Justice Sotomayor will not be a reliable voice for decentralism, the Tenth Amendment, or enumerated powers on the Court. But she might vote with the liberal bloc on affirmative action cases.