Sullivan is right

Soon after Elena Kagan was nominated by President Obama for the Supreme Court, questions were raised from both the left and the right about her sexual orientation.  Slate's William Saletan discusses some of the internet chatter about her sexuality as well as the comparison some want to make between the current controversy and the controversy over Robert Bork's religious beliefs.

My initial reaction to those who wish to know Kagan's sexual orientation was one of disgust.  In judging, one is to be guided by the facts and the law and nothing more.  Therefore, sexual orientation is simply not job-relevant.  Those who believe that it is question the very foundation of our legal system, i.e., the idea that judges can be impartial.  I have no doubt that some social conservatives believe that so-called activist judges are not guided by precedent but rather by their preferences, that their rulings are designed to achieve predetermined results.

And I personally couldn't care less whether she is gay or not.

But I came to realize that I simply had not thought this matter through, because my initial reaction is actually inconsistent with my views about Associate Justice Sonia Sotomayor.

I wrote last year that Sotomayor's sex and ethnicity are job-relevant.  I endorsed a view articulated by Dahlia Lithwick of Slate.  Lithwick writes,

[I]t strikes me as intuitively obvious that in order to succeed in a white man's world, women must learn to see both sides in ways that men do not. If that is true, it just might make them "better" judges, at least in some circumstances.

Why would women be better than men at seeing both sides?  Researchers have studied a phenomenon known as imaginative identification:

[I]n order to get ahead in the world, you learn to see life through the eyes of those who have already succeeded. According to at least some anthropologists, women have had to get awfully good at understanding what it would be like to be a man.

Then what makes Sotomayor's ethnicity relevant?  I like to present the following thought experiment to the people I know: all else being equal, who is more likely to have a better understanding of the lives and experiences of African-Americans, Barack Obama or George W. Bush? Common sense tells us that the correct answer is Obama.  Obama has an insight into the African-American experience that George W. Bush very likely does not have, simply because Obama has lived the life of an African-American man.  Now, I don't claim that a white person could not gain such insight; I just claim that such insight is much harder to come by for whites.

But does it follow that judges cannot be impartial, that they are guided by their preferences rather than the facts and the law?

I believe that some conservatives assume that people who are other are incapable of ruling impartially.  People worry about Kagan's sexual orientation because they believe that if she is gay, she will rule in favor of gay marriage simply because she is gay.  And there was this gem in the pages of The New Yorker about Sotomayor's Senate confirmation hearings (emphasis mine):

There was something distasteful about Sotomayor’s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves. (One of the more cringe-worthy moments of the hearing was Sessions’s expression of incredulity that Sotomayor might disagree with another judge on her court even though he was also Puerto Rican.)

And, speaking more broadly, we have the reprehensible Glenn Beck claiming that Barack Obama hates white people.  (And why wouldn't Obama hate white people?  Just look at the man!)  The hateful prejudice behind both these comments and the aforementioned assumption is thinly veiled.  Those who accept the assumption also assume that those who are white possess an inherent ability to be impartial.  This belief in an inherent difference between white men and all others is as reprehensibly mistaken as can be.  If one denies that others lack this ability by virtue of their ethnicity or sex or what have you, then there is obviously every reason to think that whites are similarly impaired. 

No, the fact is that one's life experience can actually enhance one's ability to be impartial, due to the phenomenon of imaginative identification.  Judges from all walks of life can be guided by the law and the facts in their rulings; one's life experiences give one a greater appreciation of and sensitivity to certain facts, which can certainly make one a better judge.  Still, those who are members of marginalized groups have an edge on those who are not because of the very idea of the rule of law: everyone, we are told, is equal before the law, but those who are less likely to be treated as equal before the law are more likely to be members of marginalized groups, and judges from marginalized groups are, all else being equal, more likely to ensure that members of marginalized groups will be treated fairly.

So I find myself in agreement with Andrew Sullivan.  According to Sullivan, the question whether Kagan is gay

is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination.

Sullivan is right.

If conservative senators want to block Kagan's confirmation simply because she may be gay, let them.  Allow their hateful prejudice to show itself, let them try to further marginalize their fellow Americans who might benefit from having Kagan on the Court, let them try to deny Obama his right to nominate someone who is by all accounts perfectly qualified for the Supreme Court, and I predict that they will suffer yet another Waterloo.

Maybe Female Judges Are Better

Associate Justice Sonia Sotomayor

The following post is a revised version of a post I originally published elsewhere July 16, 2009. It concerns the controversy last year over Sonia Sotomayor's "wise Latina" comment.  I reproduce it here because of its relevance to the nomination of Elena Kagan to the Supreme Court. I shall explain its relevance in a future post.

According to Dahlia Lithwick, our male-dominated culture has forced women to acquire skills that make them better judges. And now that I read Sonia Sotomayor's 2001 "Wise Latina" speech, I think that Sotomayor may have been presenting a version of Lithwick's argument. (See below for the context of the "wise Latina" remark.)

Sotomayor is not going to defend the comment now, because being confirmed is more important right now than debating a bunch of senators who are feeling defensive. But I think the comment is worth defending because I think Sotomayor is probably right.

I have accepted and articulated a view from which a weaker version of Sotomayor's view follows. Ask yourself, "All else being equal, who is more likely to have a better understanding of the lives and experiences of African-Americans: Barack Obama or George W. Bush?" Common sense tells us that the correct answer is Obama.

What follows from this common-sense view is the following: All else being equal, there is a better chance that a Latina woman will know more about what life is like for Latina women than a white man would know; and if judging requires an understanding and appreciation of the relevant facts, then all else being equal, there is a better chance that a wise Latina judge will be a better judge than a white man in a case involving Latina women.

I've had a number of thoughts about these Senate confirmation hearings, and I wish I had the time to go into them. For example, it's good to see Senator Coburn finally get the smackdown he's been begging for since yesterday when he asked what was in Sotomayor's gut with respect to the Second Amendment—as if Sotomayor's gut is somehow relevant.

From Judge Sonia Sotomayor's 2001 address to the 'Raising the Bar' symposium at the UC Berkeley School of Law (emphasis mine):

No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives -- no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging. 

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. 

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. 

The Pot and the Kettle

The following passages appear in an Associated Press story.

Questioning the Supreme Court and other government branches needs to stay within the range of fair criticism or "run the risk in our society of undermining institutions that we need to preserve our liberties," Justice Clarence Thomas said Thursday.
Thomas also told an audience at the University of Florida law school that some comments he hears about the court "border on being irresponsible. . . ."

Thomas supported the 5-4 ruling that allows companies and unions to spend freely on ads that promote or target candidates by name.
Thomas said the court should be questioned but is bothered by some rhetoric with "the idea of assigning ulterior motives to opinions that people don't agree with, rather than saying simply that the court doesn't agree with my argument. . . ."
Thomas brushed off a question about campaign finance, wasn't asked specifically about adding more minorities to the court or who he expects will be the next justice to leave the court. He did, however, address campaign financing Tuesday at an event at Stetson University.
"I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company," Thomas said at Stetson, according to a report in The New York Times. "These are corporations."

Affirmative action for white firefighters challenged

In 2003, virtually none of the minority applicants for promotions in the fire department of New Haven, Connecticut, scored well enough on a written exam to be promoted. The city of New Haven, fearing a lawsuit, threw out the results. They were worried that accepting the results would have been in violation of Title VII of the Civil Rights Act which prohibits what is called disparate impact discrimination. This part of the law "prohibits employers from using promotional or hiring procedures that screen out minorities unless they can prove that the procedure is closely job-related," according to Richard Thompson Ford. As a result, Frank Ricci and other white firefighters sued, claiming to be the victims of racial discrimination. Last summer, the Supreme Court sided with the white firefighters. Now, a black New Haven firefighter, Michael Briscoe, has sued New Haven for disparate impact discrimination. Though the story is a bit complicated, you can read about it here. You can read more about Frank Ricci here. And you can read about the damage the Supreme Court's Ricci ruling has done to civil rights in this country here.

I don't think many Americans understand just how strong the arguments for affirmative action are, and just how bad arguments against affirmative action tend to be. Perhaps I can post a more detailed discussion on this topic in the future. But here's the situation as I see it. The empirical evidence strongly suggests that minorities are at a disadvantage in this country in all important respects. And the best explanation for that disadvantage is that minorities are the victims of present discrimination and the legacy of past discrimination, from which white men—including those who have never themselves unfairly discriminated against anyone in their lives—benefit. Affirmative action can help correct this injustice. White men who claim that they are victims of reverse discrimination—like the white New Haven firefighters—are simply feeling the discomfort that comes with losing an unfair advantage that they didn't deserve in the first place.

When laws intended to correct unfair discrimination are gutted, whites themselves become beneficiaries of affirmative action. According to Ford, the Supreme Court may have effectively gutted Title VII's prohibition of disparate impact in its Ricci decision, which would make it easier to discriminate against minorities. The irony is, of course, that the Supreme Court, in striking down what it saw as reverse discrimination, has effectively given its approval to affirmative action for white men.