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.
