Posted by: mutantpoodle | July 18, 2009

Pat Buchanan, the GOP, and the Myth of Objectivity

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I am torn regarding the Rachel Maddow – Pat Buchanan affirmative action face-off Thursday. While I think Buchanan reflects a breed of dying, fearful, and unattractively angry white men, and that he does not, in fact, advance the case against affirmative action in his vitriolic bluster, I’m not sure that giving said bluster an airing is really, in any way, illuminating. You can judge for yourself. I’d recommend the video, which reveals Pat’s fury that the world of white supremacy is passing him by; the transcript, if you like, is here.

All this, of course, is in the wake of the Sonia Sotomayor confirmation hearings held this week in Washington, where we witnessed Lindsay Graham lecture Sotomayor on her temperament (I don’t recall that question of Antonin Scalia) and the balance of the white male Republicans on the committee (and they’re ALL white men) ask Judge Sotomayor repeatedly about her “Wise Latina” speech from eight years ago. Let’s look at the paragraph that has Senator Jefferson Beauregard Sessions and his merry band clutching their pearls, in context:

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

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. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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. [emphasis mine]

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Now, that doesn’t seem to be that wild a notion to me, and Sotomayor’s aspiration – that she hoped her experience might better enable her to make a wise decision than, say, Justice Sam Alito – doesn’t bother me. Given Alito’s membership in an organization that sought to limit the number of women and minorities at Princeton, I’d say that wisdom-wise, Sotomayor started with a wide lead. But I digress.

At the heart of this argument – at the core of Buchanan’s racist bluster and the clucking concern-trolling of the GOP minority on the judiciary committee – is the fallacy that in human matters, there are such things as objective tests. More insidious is the inference that white male thought is mainstream, and therefore not subject to the biases of white male experience.

In May, the New Yorker’s Jeffrey Toobin took a look at Chief Justice Roberts – he the of the “umpire” analogy of judging. His finding?

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

In short, just as umpires have different strike zones (biases?), judges have different experiences and belies through which they filter information. Republicans, generally, approve of Roberts’s filter and don’t like Justice Ginsberg’s – that’s fine – but it doesn’t mean that someone who might think as Ginsberg does is wrong.

But I want to get back to Buchanan, and his sneering dismissal of Sotomayor’s acceptance to and record at Princeton. When I first wrote about Sotomayor (Pat Buchanan having already decided that Sotomayor was an unqualified hack), I said this:

We have a woman who was given an opportunity she might not have gotten, say, 20 years earlier, and she made the most of it. She has traveled further in her life’s journey than most of the members of the Supreme Court whom she will surely be joining in a few months. She is, by all accounts, a middle of the road judge and not an “activist” one, by which I mean she would be unlikely to vote to stop a state from trying to find out who actually got more votes in a presidential election. She has more judicial experience at this point in her career than any of the 8 justices with whom she will serve had when they were nominated.

Clearly, Pat Buchanan is right.

By the way, Sister Susan, a classmate of Sotomayor’s at Princeton who went on the get her Ph.D at Brown, chimed in with this:

I’d add that Sotomayor probably worked a lot harder than most of us, but was also a lot smarter. You don’t end up at the top of your class at Princeton otherwise. Really. And I know — I wasn’t even in the ballpark

So, Sotomayor’s smart and driven. And then there’s this, from the same piece:

…being qualified for the Supreme Court is a binary question – you either are or you’re not. And maybe, in this country, there are a hundred individuals – maybe more, maybe less – who can get over that bar.

Sonia Sotomayor is clearly one of them.

The Republican party can dance around it, but there it is. They don’t like how they think she’ll rule when she’s a Justice, which is fine. I didn’t think I’d like Scalia, Roberts, Alito, or Thomas when they were nominated, and they have not disappointed.

This is at the heart of my argument with people who claim that minorities are taking the place of “better qualified” whites. It assumes that there is a comprehensive way to measure objectively the qualifications of different people – people with unique experiences and accomplishments – to perform intellectually. There is not.

When I hired people in my previous job, at the end of the day, I usually had a a small pool of individuals who could adequately perform the job as described. That’s the binary question: is someone qualified or not.

The hiring decision was far more qualitative. The ability to perform was only the prerequisite: will they work well in the environment? How will they react to pressure? Will they be able to cajole information out of people? Will my staff enjoy working with them?

Colleges, as well, take into account so much that’s not academic. If you are a musician, or a published writer, an athlete, or the child of an alumnus, you might get in ahead of someone with better scores. (I haven’t heard Pat Buchanan rail against the affirmative action – he was a legacy – that got George Bush into Yale, or the athletic preferences that helped get J.C. Watts into Oklahoma. Perhaps those are OK?) 17-year old Zac Sunderland just sailed around the world. My guess is that he’ll have college options well beyond whatever his test scores indicate. And I’d argue that’s completely appropriate.

Buchanan has it completely backwards. He sees a woman of extraordinary accomplishment and yet argues she never should have gotten the opportunity Princeton gave her 37 years ago. I look at Judge Sotomayor and see a complete validation of Princeton’s ability to judge – there’s that word – the compelling character of a young woman who, while lacking an elite high school education, was blessed with abundant intelligence and ambition. Whoever held Sonia Sotomayor’s admissions folder in his hands (and in 1972, it was almost certainly a man) is not now, I assure you, bemoaning his long-ago recommendation.

The world of jurisprudence, like the world of academia, lends itself not to soulless number-crunching, but to informed and, yes, empathetic judgment. Buchanan, in falling prey to his ugly fears, misunderstands both.

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