Stop Discrimination against Powerful, Rich White Guys

Barack Obama, black.  Sonia Sotomayor, hispanic.  Neither one of them card-carrying members of the status quo, the Trilateral Commission, or any other famous conspiracy group designed to perpetuate the power of the eastern establishment (made up of powerful, rich white guys).

Clearly, we live in a racist society.  How dare we -- HOW DARE WE! -- abandon the powerful, rich white guys who have the experience and influence to know better.  It's no wonder the economy has derailed and our influence in the world rapidly dropped since the inauguration of a non-white, non-powerful, not-nearly-as-rich man.  A man who's nominated a racist to the Supreme Court.

This cannot stand.  Powerful, rich white guys have long fed off the federal trough -- and their addiction to federal monies may be threatened by this preference for non-white, non-powerful, not-rich Americans.  It is simply unacceptable to allow others to partake of the federal government.  What was America thinking?

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Republican fantasy vs. reality on Sotomayor

If all you knew about 2nd Circuit U.S. Appeals Court Judge Sonia Sotomayor came from conservative commentators, you would think Barack Obama had nominated a far-left reverse racist for the Supreme Court. A typically unhinged assessment by Iowa's own Ted Sporer, chairman of the Polk County Republican Party, is titled "The Supreme Court pick: Justice denied, racism and sexism exalted." Like most conservatives who are freaking out, Sporer is reacting to one quotation from a speech Sotomayor gave in 2001:

"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."

Conservative commentator Rod Dreher read the whole speech and concluded on Wednesday, "seeing her controversial comment in its larger context makes it look a lot less provocative and troubling." However, the right-wing noise machine continues to sound the alarm about Sotomayor's alleged radical, racist agenda.

You won't be surprised to learn that people who have examined her judicial record (as opposed to one sentence from one speech) have reached substantially different conclusions. Some reality-based links are after the jump.

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Tancredo Calls La Raza "A Latino KKK"

Today on the Rick Sanchez Show on CNN, former Colorado Congressman Tommy Tancredo, who earlier in the week joined the chorus of deranged conservatives in calling Judge Sotomayor a racist, went a step further and derided the first Hispanic nominee to the Supreme Court for her association with the National Council of La Raza, the nation's largest Hispanic civil rights and advocacy organization.

TANCREDO: If you belong to an organization called La Raza, in this case, which is, from my point of view anyway, nothing more than a Latino -- it's a counterpart -- a Latino KKK without the hoods or the nooses. If you belong to something like that in a way that's going to convince me and a lot of other people that it's got nothing to do with race. Even though the logo of La Raza is "All for the race. Nothing for the rest." What does that tell you?

RICK SANCHEZ: Alright. We're not talking about -- we're not talking about La Raza -

TANCREDO: She's a member! She's a member of La Raza!

Well, that's enough for me go out and join La Raza.

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Senator Pat Roberts To Oppose Confirmation of Sotomayor

Conservative Republican Senator Pat Roberts of Kansas today announced that he intends to vote against the confirmation of Sonia Sotomayor. Senator Roberts is the first member of the GOP to voice his opposition to Judge Sotomayor's nomination.

From CNN:

"With all due respect to the nominee and nothing personal, I do not plan to vote for her," Roberts told talk radio host Christ Stigall on Kansas station KCMO.

Roberts also noted he was one of the 28 Senate Republicans in 1998 who voted against confirming Sotomayor to the Second Circuit Court of Appeals. Sotomayor was ultimately confirmed to that court by a 68-28 vote.

"I did not feel she was appropriate on the appeals court," Roberts said of his 1998 vote. "Since that time, she has made statements on the role of the appeals court I think is improper and incorrect."

"I think that we should be judging people not on race and gender, or background or ethnicity or a very compelling story," Roberts continued. "There are a lot of people who have that."

Well, at least, he didn't call her a racist.

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Justice and Empathy: Historical Context for a Contemporary Polemic

When President Obama nominated Sonia Sotomayor to fill David Souter's seat on the US Supreme Court, he ensured that opponents in the confirmation process will focus sharply on the President's listing of "empathy" among the qualifications he sought and the related question of his nominee's ability to apply the law fairly and impartially.  Conservative activists and pundits have already been harping for weeks on the alleged problem of "empathy" and have consistently raised the fact that the traditional allegorical figure of "Lady Justice" wears a blindfold.  What they seem less eager to discuss, however, is the object "she" always holds in her hand and its particular condition.  "Lady Justice," of course, bears scales.  Furthermore, "her" scales always appear perfectly balanced, neither side elevated over the other.  The most immediate symbolism of "her" scales, the significance that accords most easily with that of "her" blindfold, surely is "her" ability to avoid privileging either side in a dispute, her commitment to applying justice without being swayed improperly to one or the other.  But this rather misses the point.  When any judge renders a verdict, they very frequently imbalance their scales by deciding in favor of one side or another.  The figure thus contains a fair amount of ambiguity.  Considered another way, the balance of the scales represents the result of "her" adjudication.  One of the functions of "Lady Justice" is to recognize imbalance, i.e. injustice and restore it to its appropriate condition.  "She" must recognize that the positions of parties to a dispute do not have equally valid claims and/or positions, and render a judgment that creates a situation of fairness and justice.  Empathy certainly is not sufficient for this process, but neither is it irrelevant.

One of the deep intellectual issues that divides liberals and conservatives concerns the question of anyone's ability to apply principles without bias, to render judgment without prejudice.  Conservatives claim a great deal of confidence in this ability and that they exercise it more consistently than liberals.  Liberals, on the other hand, generally think that one cannot exclude the experiences and contexts that inform their perspectives so absolutely and consistently, nor should they.  When such contexts exacerbate injustice, they may be pejoratively termed biases or prejudices; but when they provide perspective that aids the pursuit of justice, they are great assets in "her" cause.  Conservatives are not just making a bad argument here, but an irresponsible and often opportunistic one whereby they cloak their interests in the rhetoric of impartiality.  Any judge of any disposition will be able to name cases they decided where adherence to the law produced a clearly just outcome, as well as others where the inflexibility of a statute forced them to render a verdict they thought unjust.  Yet many cases are not so clear cut.  The fact that they can gesture to instances when the law functioned as an effective instrument of justice and others when it seemed to accomplish the opposite of its intended purpose demonstrates that the law is an imperfect instrument with no guarantee of just results.   The law does not exist outside of its application, except as an academic abstraction.  Accordingly, the conservative dogma that suggests judges should apply and not create the law draws a somewhat false distinction between the two.  When judges apply laws they create precedents that have enormous implications for policies.  The relationship between legislation and adjudication therefore features a great deal more fluidity than cliché conservative rhetoric admits.  But neither can judges apply a law in ways that clearly contradict or  nullify its text  in the interest of establishing a just outcome.  If they did, they would threaten the integrity of the law itself, their most powerful if imperfect tool for the pursuit of justice.  Interpretive latitude is not unlimited.  Legal prose and longstanding precedent restrict judges, but also ensure the stability of our legal system.

Another way of interpreting the figure of "Lady Justice" acknowledges the tension between "her" blindfold and "her" balanced scales.  The former indeed signify the imperative of impartiality, but the latter represent instead the desired outcome: justice.  Interpreting the balanced scales of "Lady Justice" as signifying justice relates the concept of justice to some notion of equity, or even equality.  A conscientious judge who seeks to render verdicts that correct imbalances will find empathy a powerful tool, among others to be sure, in evaluating the subject positions of disputants.  Empathy helps judges stand in their places and understand their relative positions within a shared social context.  In many cases, when the law functions optimally, impartiality will facilitate justice.  In others, empathy will not find expression under the law without undermining it altogether.  But the cases in between require judges to engage this potential conflict.  These are the cases where empathy counts most.  These cases require active judicial creativity informed by responsible attention to legal precedent and the authority of the text of a given statute.  They require self-consciousness with regard to a judges own subject position and experiential context, and a sincere desire both to judge fairly and to further the cause of fairness.  In short, these cases require judges to pursue justice when it appears possible yet elusive.  

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