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A wise Latina woman

Though Ta-Nehisi Coates disagrees, I think Sotomayor’s Very Controversial Statement here is correct:

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.

Coates objects mainly to the unified concept of whiteness underlying the statement, and that’s fair enough, but I think it misses an important point: non-whites and non-males really are in an advantageous position when it comes to discerning injustice. Everyone from outside the mainstream of culture has to learn to communicate with that mainstream, but they also have a critical distance due to their lack of “belonging” to it. And unless we’re to assume that she’s either an idiot or a straightforward racist, we have to recognize that Sotomayor’s “white male” refers to that mainstream, not to some actual person who’s supposed to fully embody it. Coates is right that no particular white male fully fits into the “white” category — but that’s exactly what makes it so powerful, what makes it a point of identification (rather than automatic identity).

Someone who has to figure out a way to negotiate her existence vis-a-vis an identity she knows for a fact she is never going to be able to fully assume is going to have a richer understanding of that identity than someone who’s anxiously trying to fill that role in the (false) belief that he actually can. On the other side, a white male fighting for justice on behalf of those excluded from the mainstream identity is going to have his work cut out for him fighting against the inertial force of that identity — he can always fall back on white privilege, and so if the fight fails, he will be “fine.” That makes a huge difference, a much more important and powerful difference than the differences in experience among males whose skin color or ethnic origin puts them in the category of “white.”

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May 27, 2009 - Posted by | politics, race

23 Comments

  1. I basically agree with your analysis, but if what she says is true, should we allow white males on the court at all? I think there’s a point to what she’s saying, but you have to admit, it is phrased EXTREMELY clumsily.

    Comment by Hill | May 27, 2009

  2. “Majority implies a constant … serving as a standard by which to evaluate it. … Majority assumes the standard measure, not the other way around.”

    “The majoritarian is nobody. Everybody’s caught, one way or another, in a minor-becoming that would lead them into unknown paths if they opted to follow it through.”
    — Thousand Plateaus

    As you note, though, some people are never pushed to “follow it through.”

    Comment by d barber | May 27, 2009

  3. Hill, It seems to me to be pretty well hedged: I would hopemore often than not

    Comment by Adam Kotsko | May 27, 2009

  4. I’m not sure that kind of hedging accomplishes anything in this case. I don’t think her hopes or the frequency with which a Latina reaches a better conclusion than a white male are all that relevant. The question for me is what about the Latina experience is “richer” than that of a white male’s and how does this bear on drawing legal conclusions. Also, how often do circumstances arise in which this difference in richness actually matters and what do these circumstances look like? Presumably a white male judge and a Latina judge are going to come to the same conclusion most of the time (that is if you buy in to all of the philosophical presuppositions that seem to undergird something like the Supreme Court).

    Comment by Hill | May 27, 2009

  5. Perhaps I could put it more clearly: most legal decisions are binary. If a Latina judge and a white male judge on the Supreme Court would tend to come to opposite conclusions, we probably ought to just dissolve the country and figure something else out, because I’m not sure how meaningful “the law” is in those circumstances. Given that there is a 50% chance of coming to the correct conclusion simply by guessing, where would we put “the white male” and where would we put “the Latina.” I’m being sort of facetious, but I think this is an interesting way of looking at it.

    Comment by Hill | May 27, 2009

  6. On #4, I can only refer you back to the post. On #5, I believe your point is overly simplistic. Legal outcomes aren’t simply binary.

    Comment by Adam Kotsko | May 27, 2009

  7. Supreme Court rulings are typically binary. Laws are either unconstitutional or they are not. As to #4 and the post, it just seems odd to me that by “richness” she meant “more oppressed” which is what you are imputing to her. I’m asking the question: is existing outside of the mainstream “richer” and in what sense? This is a real question. It actually relates to a Christian view of the poor, for instance, in that a marginalized group is recognized as actually living the fullness of life. The question in each case is: what does it mean to acknowledge this “richness” and then try to assimilate it, either by bringing the poor in to the middle class or by incorporating “minority voices” in to Leviathan.

    Comment by Hill | May 27, 2009

  8. SCOTUS has greater scope than mere decisions of constitutionality of an entire law. (“Laws are either unconstitutional or they are not.”) The constitutionality (or lack thereof) may come up – and often does – during a case, but you don’t go to SCOTUS and say, “Hey, this law is unconstitutional.” Many decisions turn on constitutional interpretation, but that isn’t the claim you are making. But many decisions have no relation to the constitution at all – for instance, an appeal on the basis of the incorrect application of law or principle. For instance, admissibility of evidence: was the search and seizure “reasonable” or not? or what is a “reasonable person?” and so on. SCOTUS also has primary jurisdiction in a number of other areas.

    Comment by Craig | May 27, 2009

  9. Oh, and no the decisions are not primarily binary. Read any decision – it is broken, quite frequently, into dozens of smaller decisions. “Yes, this was correctly applied, but, no, this was not.” How is a “yes and no” decision in any way “binary”?

    Comment by Craig | May 27, 2009

  10. A bunch of binary decisions grouped together are still a bunch of binary decisions, and hence are subject to statistical analysis in a way that something like the development by the legislature of a law is not. The answers are either yes or no. That’s binary. This is a totally different situation than one in which the person in question is called upon to actually create some sort of content that is not binary. If you told me that a Latina is more well equipped to formulate laws that are sufficiently subtle so as to create a maximum amount of just situations… that is a far more compelling claim. But the claim here is that Latinas are capable of rendering these binary decisions correctly more frequently. That doesn’t make sense to me.

    Comment by Hill | May 27, 2009

  11. Your difficulty of understanding appears to be entirely self-imposed.

    Comment by Adam Kotsko | May 27, 2009

  12. Honestly, I’m understanding this perfectly well. You have a great point. What I’m saying is that it seems mostly irrelevant to the role of the judiciary. Do either of you really think that judicial decisions are not fundamentally binary? That means that the vast majority of the time, unless there is actually a massive disparity in the decision making capability of white males and Latinas, that your point is moot. The claim is being made that judiciary decisions are not binary and I’m the one that doesn’t understand? Is the meaning of the word binary unclear or something?

    Comment by Hill | May 27, 2009

  13. First, you need to let go of this binary thing. Craig has already indicated why that’s not a helpful way to understand the role of the court. You insisting that it is helpful and correct doesn’t constitute an effective counterargument.

    The Supreme Court often rules on issues where the law or its implications are unclear. Ideally, the goal should be to render a just decision in a situation in which you can’t simply “apply the law,” or in which there isn’t a clear right or wrong answer. Someone who has a wider range of experience — for instance, someone who has been discriminated against due to their race — has more resources at hand for reaching something like a just decision. She would need more than simply the law because the law isn’t clear enough in itself to make the solution automatic. All of this would make perfect sense if you’d let go of your incorrect idea that the Supreme Court is a binary-processing machine of some kind.

    Comment by Adam Kotsko | May 27, 2009

  14. Hill:

    Here is what I think you are missing – In the recent SCOTUS case involving a teenaged girl being strip searched at school, the entire case hinges on the whether or not the search was reasonable. This isn’t a black and white case – it’s a question of how far is too far. Schools want to keep contraband off campus, but not all methods are reasonable ones.

    The reason I bring this up is that one of the justices opined that there is nothing particularly upsetting about being stripped to ones undergarments at school – Justice Ginsburg fiercely protested asking, “Have you ever been a 13 year old girl?”

    Justice Ginsburg was a 13 year old girl at one point, and she remembers that it would have been a horrifying experience to be stripped down to her underwear by an administrator. Her fellow male justices, perhaps having less culturally enforce body issues, wouldn’t have been as horrified. This entire case rests on whether or not the strip search was reasonable, but if you are incapable of empathizing with the girl in question, there is no way you can correctly make that decision.

    Having people of varying backgrounds – socio-economic background, race, gender, orientation – on the court makes a difference because what is reasonable to you really does depend on your experiences. And as Adam pointed out, being on the outside does give you practice in not taking your cultural assumptions as a given.

    Comment by Adam A | May 27, 2009

  15. I think we just have a disagreement about what the Supreme Court is (or ought to be). The very concept of justice it is understood to be meeting out seems explicitly to exclude something like what you are suggesting. (The whole thing about justice being blind, etc.) Maybe put in another way, the justice the Supreme Court is charged with executing is defined by the law, not by some shared concept of human experience. I’m not saying this is a good thing (I don’t think it’s a good thing), but it is the way the court has traditionally been understood. If it should be otherwise, then the discussion is obviously a lot more complicated and cuts deeper than whether minorities are more qualified to be judges.

    Just to clarify my point about binary, which is still fundamentally correct: yes/no decisions, which the supreme court makes virtually exclusively, even if a single case constitutes many of them, are binary. A question to which the answer is “yes and no” is actually just two (or more) questions, the first question having been insufficiently specific. This means by the nature of these decisions that the subtleties attendant to the difference in the “richness” of experiences of minorities and white males are far less likely to manifest themselves in any meaningful way. I’d honestly be curious to hear a detailed hypothetical in which a minority judge were capable of coming of coming to a conclusion that was “better” than the one a white male would have arrived at (and that the former was demonstrably better to people without a vested interest in the matter). I think there are basic logical issues with it, given that these conclusions are fundamentally yes or no answers.

    If the claim was being made that minorities are more likely to develop just policies or just laws, I would be completely on board, because it is in fact here where justice is defined, meaning not a “just application of the law” but whether or not the law accords with generally accepted notions of the good in a given society.

    I think the argument you are making presumes that the Supreme Court is charged with this duty, and that’s not my understanding; at least argumentatively, I’m assuming that’s not it’s role under the traditional understanding of the separation of powers.

    Comment by Hill | May 27, 2009

  16. Your point, Adam A, is very helpful, and I acknowledge its force. It is without a doubt a good thing to have a wide range of perspectives and experiences on the court. That’s not what the quote in question says. Her quote (and I’ve been unable to try to find the entire context so as to situate it) suggests that Latinas are categorically more likely to come to better conclusions than white males. That is a different claim than the one your anecdote convincingly supports.

    Comment by Hill | May 27, 2009

  17. I feel like my anecdote, in connection with Adam’s point in the post, helps explain her comment. A person who belongs to the normative group has cultural assumptions that a person from an out-group does not have the luxury of assuming. It is very easy for a white male, for instance, to assume that if being strip searched would not be unduly traumatizing for them, it wouldn’t be for anyone; however, a member of an out-group, because of their awareness of their non-normative status, less often take their assumptions for granted

    Since you are being so gracious to me, I feel I must return the favor – I do think her comment was probably harsher than it needed to be. However, I still think that her general point stands.

    Comment by Adam A | May 27, 2009

  18. This all goes back to my original contention that her comment was worded very clumsily. I admit to being rather scholastic on that score. Thanks for the engagement.

    Comment by Hill | May 27, 2009

  19. Hill: I’ll take an “extreme” position (quotes because it doesn’t seem extreme to me), in the hopes of answering your #7.
    Q: Is existing outside the mainstream “richer” and in what sense?
    A: Yes, existing outside the mainstream is richer when existing outside of that mainstream is the source for unique and useful experience and, in particular, richer in a sense relevant to securing a better (more accurate) view of what’s just.

    More on what followed the “when” in my answer (“when existing… useful experience”): existing outside of the mainstream of skin color or gender does better situate one to determine what’s just, unlike existing outside of the mainstream of, say, being right-handed. So, there are two kinds of mainstreams: those relevant for securing a better view of what’s just and those that aren’t; I think this difference is tracking oppression, which is a species of injustice. This is what we’d expect: someone with a wider variety of experience in a sphere relevant to justice would have a better view of it, where as someone with a wider variety of experience in a sphere irrelevant to justice (e.g. eye color, handedness, attached/detached earlobe) would not thereby have a better view of it.

    This has the delightful result of conferring relevant experience to minorities of, say, skin color and gender NOT in virtue of their skin color or gender but in virtue of the discrimination and oppression (injustices) which have been based on skin color and gender. So it is really the original racists and sexists (whomever they were) that are responsible for our now being able to* consider Sotomayor’s race, ethnicity, gender, etc.

    *It’s stronger than mere possibility. We are ethically and political obligated to consider such variances in experience, if those experiences are agreed to be relevant to one’s ability to discern what’s just.

    Comment by Currence | May 27, 2009

  20. SCOTUS also has the option to not rule on a case it has heard – i.e., leaving the matter to legislation – and it does not have to give any reason for deciding not to hear a case; effectively rendering a non-judgment on both the merits and facts of the case. Likewise, lower court judgments can be upheld (call that a yes, if you will) but for completely different reasons. This is not a simple matter of “yes or no” and, frankly, any insistence that it is such a matter is plainly idiotic.

    By the way, SCOTUS is not unique in this regard: this is normal functioning for all supreme courts; e.g., the SCC.

    Comment by Craig | May 27, 2009

  21. Wow, #14-18 went up while I was writing.

    Comment by Currence | May 27, 2009

  22. e.g., the SCC

    Hating on TV shows isn’t going to be any more convincing just because you pretend to be “the Supreme Court of Craig.”

    Comment by Wrongshore | May 27, 2009

  23. Agreed with the post entirely.

    How that plays out pragmatically remains to be seen. It will be interesting to see whether she sticks to her guns in precisely this way, finds a way to fudge, or simply maneuvers around it with aplomb. If comments on her judicial temperment thus far are correct (and I assume they are more than slightly overstated), she may be tempted to go with the first. I assume Obama’s people will strategize with her for the third.

    What Craig says in #20, in fact for almost all courts not just supreme ones. You don’t even have to read a SCOTUS opinion to see this. You just have to look through who wrote opinions in half dozen cases or so to see that the court is often fractured with multiple opinions that overlap in terms of agreements and disagreements, with different legals reasonings meaning a host of different things. In legal terms it’s even more important to figure out how justices get to certain conclusions, in most cases, then it is to harp over the exact outcome. It’s precisely such considerations that make which cases to accept and which to refuse cert such an important part of SCOTUS work.

    Comment by old | May 29, 2009


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