Matt Yglesias

The Limited Racial Imagination of the American Right

An African American man lynched from a tree, 1925 (wikimedia)

The Cato Institute’s Ilya Shapiro opines that Sonia Sotomayor’s selection “represents the very worst of racial politics” as “she is not a leading light of the judiciary and would not have been considered had she not been a Hispanic woman.”

I think this is a revealing moment. Sotomayor has the normal qualifications for a Supreme Court justice—she shares the president’s political views, she lacks a record of inflammatory legal writing that would prevent confirmation, the has experience as an appellate judge, she went to fancy schools. Insofar as her background was a consideration in selecting her, which it undoubtedly was, this is also totally normal. Presidents have always sought various kinds of regional, religious, and ethnic balance in the courts. Much was made out of Samuel Alito’s Italian American ancestry, and obviously Thurgood Marshall was initially put on the court in part to make a symbolic statement about civil rights and Clarence Thomas was appointed to replace him in part out of a desire to fill Marshall’s old seat with an African-American. There was a tradition of a “Jewish seat” at various times, etc.

But even more revealing is that even if Sotomayor’s selection were somehow out of the ordinary, the idea that picking one appellate judge rather than another for a promotion could possibly be the very worst of racial politics is ludicrous. At its very worst, racial politics in the United States involved the systematic disenfranchisement of millions of people, their subjection to pervasive social and economic discrimination, and the maintenance of the apartheid system via the threat and reality of state-sponsored terrorist violence. At its very worst, racial politics in the United States involved persistent filibustering to prevent the federal government from doing anything to curb widespread lynching. At its very worst, racial politics in the United States involved a violent rebellion that sought to dismantle the country in the name of chattel slavery and led to the deaths of hundreds of thousands of people.

But despite that long history, broad swathes of the American right remain persistently and willfully blind to the problem of discrimination against non-whites. Their view is, essentially, that racism emerged as a problem sometime in the year 1967 and that the problem consists of white people being unduly burdened by efforts to remediate something or other.

Jeffrey Toobin Offers a Grownup Perspective on Constitutional Law

The US Supreme Court (cc photo by laura padgett)

I agree with Scott Lemieux that it’s very nice to see Jeffrey Toobin able to offer an adult view of how constitutional law works in a mainstream U.S. publication:

In her opening statement before the Senate Judiciary Committee last week, Sonia Sotomayor said that she wanted to clear up some questions about her views. “In the past month, many senators have asked me about my judicial philosophy,” she said. “Simple: fidelity to the law. The task of a judge is not to make law—it is to apply the law.” Coming from a jurist of such distinction, this was a disappointing answer. Like much of her testimony, it suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions.

In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.

I don’t think I would say that “there is no law” in those kind of situations. Rather, I think the thing to say is that people’s opinions about what the law is are going to be irreducibly bound up with their opinions about larger social, moral, and political issues. People reach different conclusions, in other words, for reasons other than technical incompetence or corruption. Unless you think that ethical issues in general don’t have correct answers, this doesn’t mean that hard legal questions have no correct answers. It just means that on hard legal issues, like on hard ethical issues, we can’t expect convergence on a single result and it would be informative to have people say something broader about the kind of values they bring to the table.

That said, an aspiring justice needs to play the game according to the rules as written. Unfortunately, the way our current set of rules works, the hearing process tends to be a bit of a tawdry farce.

GOP Senate Hopefuls Refuse to Take a Stand on Sotomayor

What’s a GOP Senate candidate to say about Sonia Sotomayor? On the one hand, this far out you still really need to worry about pleasing the base. On the other hand, you don’t want to look unreasonable in the eyes of the electorate. The Hill’s Aaron Blake thought he’d try to find out:

Interviews with a dozen Republicans running for Senate seats across the country failed to find one candidate who was willing to offer a clear position, despite the two months of public debate since President Obama picked Sotomayor for the high court.

It doesn’t actually seem like a very hard question.

Isaac Chotiner Gets Jonah Goldberg Wrong

So Ruth Bader Ginsburg recently said this in an interview with Emily Bazelon:

Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Ginsburg is saying that her perception of the situation in 1980 is that there was a lot of concern on the right about Bell Curve-style dysgenics and that, therefore, insofar as folks were willing to tolerate legal abortion at all they would welcome Medicaid-funded abortions for poor people. But she was wrong. Jonah Goldberg decides, however, to read this as Ginsburg making the case for eugenics and then writes an LA Times column denouncing her and wondering if fellow liberal fascist Sonia Sotomayor is also hatching a eugenicist plot.

Now this all comes to me via Isaac Chotiner who remarks:

This leads to a more interesting topic. I had a drink with a conservative writer in Washington a while back who rolled his eyes at the mention of Goldberg’s book. My drinking buddy stated that he and many other conservatives believed ‘Liberal Fascism’ was rather amusing and ridiculous. I was heartened–behind Goldberg’s back, after all, even staunch right-wingers thought his thesis was a joke. But then it occured to me that the joke might be on the rest of us. Goldberg is a rather clever guy, and so I chalk up his decision to write ‘Liberal Fascism’ to purely financial motives. This column is just more evidence for my thesis. Again, Goldberg is not stupid; what are the odds that he happened to (grossly) misread a column in a manner that perfectly fits with the argument of his book? Hell, maybe he will even sell a few more copies today. Throwing away one’s credibility might be short-sighted or sad, but who says it is not profitable?

I think this is dead wrong. Goldberg is stupid.

My understanding from my own off-the-record chats with conservative writers is that Liberal Fascism was published for pecuniary reasons. Goldberg’s editor, in other words, understood that this was the sort of red meat the rubes would eat up. But the gossip I’ve heard has it that he was then taken aback to discover that Goldberg didn’t see the project that way. He’s sufficiently vainglorious, out of touch, and egomaniacal that he really does think of the book as a “very serious, thoughtful, argument that has never been made in such detail or with such care” and genuinely takes offense at the fact that people are grappling with his scholarship.

Recall his indignant huff that his book “isn’t like any Ann Coulter book.” It is! And just like some of Coulter’s work, it’s sold a lot of copies. But he really sees himself as embarked upon a more ambitious project than that of base-whipping provocateur.

Revisiting the Judges of Yore With Republican Senators

Senator Jeff Sessions (R-AL) was disparaging Sonia Sotomayor’s “wise Latina” remarks and contrasted them with the words of Judge Miriam Cedarbaum who “believes that judges must transcend their personal sympathies and prejudices.” Sessions said “So I would just say to you, I believe in Judge Cedarbaum’s formulation.” Sotomayor herself said that she agrees with Cedarbaum and that Sessions is misinterpreting her. She also brought Judge Cedarbaum to the hearing. Leading to this great item by Jess Bravin:

“I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no affect on her approach to judging,” she told Washington Wire. “We’d both like to see more women on the courts,” she added.

Burn. Bravin adds:

In 1986, Cedarbaum and Sessions were both nominated to the federal bench by President Ronald Reagan, and were members of the same orientation class for future judges. Their paths then diverged, however. Cedarbaum was confirmed, but Sessions’s nomination floundered over a controversy surrounding comments he made involving the Ku Klux Klan and the NAACP.

The comments he made, to be clear, were about how the KKK, a violent white supremacist terrorist organization, was fine except for the fact that some of its members smoked pot. The NAACP, by contrast, was said to be a bad and Communistic organization.

Meanwhile, Kate Klonick notes the right’s strange habit of invoking Judge Richard Paez as a contrast to Sotomayor’s purported racism. It’s strange because Sessions and Richard Kyl, both of whom praised Paez to disparage Sotomayor, voted against Paez when they had the chance. Also:

Perhaps more amazing, Paez was no run of the mill nomination and confirmation. His nomination famously lasted a record 1,506 days when the confirmation was repeatedly delayed by Republicans who held the majority in Congress and cited his supposed “judicial activism.”

I still in an honest-to-God, no-joking way don’t understand why conservatives who want to vote “no” don’t just say something normal like “I thought Justice Souter voted the wrong way on a number of important cases, I think Judge Sotomayor is likely to vote in a similar way to Souter; I would prefer a judge who votes like Justice Roberts or Justice Scalia; therefore, I’ll vote no.” That’s not insane, it’s not offensive, it’s not foolish, it’s not bizarre—it’s something you’d have to respect.

On Activist Judging

I’ve got a new column up at the Daily Beast arguing that the Sotomayor hearings show that conservatives love activist judging as long as it’s done on behalf of white people.

Sotomayor!

So . . . Sotomayor hearings start today. Summer news is always hard to come by but I, personally, am going to try to resist the temptation to over-hype this. I don’t think anybody thinks that replacing Souter with Sotomayor will substantially alter the course of American jurisprudence nor does anybody think that Sotomayor won’t be confirmed. The show is just a show; a spectacle with little real meaning.

The End of Campaign Finance Regulation

Two related stories that are kind of flying under the radar right now. First, over at TPM, Zack Roth and Pete Martin explain what’s going on at the Federal Election Commission. Or, rather, what’s not going on. Namely, enforcement of election law. Instead, the Republican faction on the committee, made up entirely of people opposed in principle to the idea of regulating campaign finance, has just decided to paralyze the agency.

Meanwhile, several days ago the Supreme Court gave a strong indication that it intends to overturn the precedent set in Au
stin v. Michigan Chamber of Commerce which, as Ian Millhiser explains, will really gut existing campaign finance law:

Nineteen years ago, in Austin v. Michigan Chamber of Commerce, the Court upheld a ban on independent political expenditures–so-called “soft money” contributions–by corporate donors. As the Court explained in Austin, “the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures.” Corporations are designed to amass massive amounts of money, and they can use their enormous wealth to drown out individual voices, all while spending only a fraction of their treasuries.

Should the Court toss out Austin, it could be the end of any meaningful restrictions on campaign finance. In most states, all that is necessary to form a new corporation is to file the right paperwork in the appropriate government office. Moreover, nothing prevents one corporation from owning another corporation. Without Austin, even a cap on overall contributions becomes meaningless, because corporate donors can simply create a series of shell-corporations for the purpose of evading such caps.

These are pretty radical shifts in how our political system operates, and they’re taking place with no public debate or public scrutiny. One seriously doubts that many members of congress would want to stand before the voters and openly make the case that unlimited corporate campaign expenditures will advance the public interest or make the world a better place. Instead, conservative elected officials are managing to undermine the existing legal framework through their appointees while avoiding taking responsibility for what’s happening.

The Ricci Case

As expected, the Supreme Court handed down a 5-4 decision reversing the Second Circuit’s decision on the Ricci firefighter case. As Ian Millhiser explains:

For 25 years, the United States Court of Appeals for the Second Circuit has given employers broad discretion to reconsider a promotion test whose results favor one race over another. Judge Sonia Sotomayor followed this binding precedent when she rejected several firefighters’ claim of reverse discrimination in the now-famous Ricci v. Destefano case, as she is obliged to do as a lower-court judge. Yet, as the Justices showed in today’s 5-4 decision in Ricci, they are not bound by the same constraints that bound Judge Sotomayor. Today’s ruling creates a new standard which says that an employer’s decision to toss out a hiring test must have a “strong basis in evidence” showing that the test preferred one race over another. The Supreme Court has powers that Judge Sotomayor does not, and it used that power today.

This seems like a good time to link to Ramesh Ponnuru’s smart New York Times op-ed on this case. Ponnuru makes the eminently sensible point that whether or not you like the conservative justices’ new rule, there’s nothing “originalist” about legal conservatism’s hostility toward policies designed to provide assistance to non-whites. It’s pretty abundantly clear from the historical record that the congresses that framed the Civil War amendments were not opposed to remedial measures designed to advance the interests of African-Americans. The view that the constitutional guarantee of equal treatment exists to protect the whites from unfair efforts to help non-whites is perhaps legitimate, but unquestionably an ahistorical take on the issue developed by conservatives relatively recently. I would also add that there’s a common sense difference between courts stepping in to protect a minority group from the depredations enacted by majority-controlled elected branches of government, and the idea of courts stepping in to protect the majority group from the political process.

Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent

John Roberts (Wikimedia)

Here’s a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court. Not content with gutting anti-discrimination legislation, a 5-4 majority has decided that if people are wrongfully convicted they should be punished anyway because, hey, tough on crime!

In 1993, William Osburne was convicted of kidnapping, assaulting and raping a woman in Anchorage, Alaska. He spent the next 14 years of his life behind bars. Osburne insists that he is innocent, the State of Alaska has in its possession DNA evidence which will once and for all prove his guilt or innocence, and Osburne has offered to pay for DNA testing out of his own pocket. Allowing Osburne to prove—or disprove–his claim of innocence will cost Alaska literally nothing.

Nevertheless, the Supreme Court held today in a 5-4 decision by Chief Justice Roberts that Osburne is out of luck. Although Roberts conceded that “[i]t is now often possible to determine whether a biological tissue matches a suspect with near certainty,” he determined that Osburne has no right to pay for a test that could exonerate him for a crime he did not commit. Allowing Osburne to prove his potential innocence, Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”

Obviously, the purpose of the established system of criminal justice is to use punishment of the guilty as a means of controlling crime. The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand. The predominant thinking of Alaska in this case seems to be that the punishment of the innocent works as a close substitute for the punishment of the guilty, so that given the heinous nature of the crime the state has a strong interest in convicting someone or other of it irrespective of the facts. This is exactly the sort of madness and injustice we rely on the judicial system to rescue us from. But not the new Roberts Court!

The two cases handed down yesterday are just two new additions to the trend observed by Jeffrey Toobin, “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.” That’s conservative jurisprudence in a nutshell.

David Brooks Tries to Bring Reason to the Sotomayor Debate

Good for David Brooks:

More than any current member of the Supreme Court, she worked her way up through the furnace levels of the American legal system. [...] She is quite liberal. But there’s little evidence that she is motivated by racialist thinking or an activist attitude. [...] When you read her opinions, race and gender are invisible. I’m obviously not qualified to judge the legal quality of her opinions. But when you read the documents merely as examples of persuasive writing, you find that they are almost entirely impersonal and deracinated.

This should be totally obvious. That it’s not obvious to so many speaks to two things. One is the deranged nature of Supreme Court confirmation battles. Consistent differences have emerged between the kinds of justices conservatives want and the kinds of justices liberals want, but it’s considered out of bounds for politicians to just say “The President has a different ideology from me, he’s appointing a judge whose decisions I anticipate disliking, and that’s one of the reasons I voted for the other guy.” Instead there are these incentives to concoct wild personality defects in the other side’s choices, or accuse them of deliberately subverting the law (”activism”), rather than of simply disagreeing about important issues.

Mix that up with this incredible race obsession held by many white conservatives, and it’s a toxic blend. Suddenly Judge Sotomayor’s participation in 1970s-vintage campus activist groups is a dire threat to the white race’s legal hegemony.

The Stuart Taylor Standard

A great catch from Scott Lemieux who takes a look into the archives to see how National Journal legal affairs columnist Stuart Taylor thought we should evaluate Samuel Alito:

Alito’s critics have similarly ignored much evidence that his 15 years of steady, scholarly, precedent-respecting work as a judge tell us more about him than a handful of widely (and misleadingly) publicized memos that he wrote more than 20 years ago.

But what about Sonia Sotomayor?

And some may see Sotomayor’s [innocuous] letter [written as an undergraduate] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton’s Board of Trustees.

As Scott says “if I understand correctly, memos Alito wrote directly about important constitutional issues while applying for an important government job should be disregarded, but letters that Sotomayor wrote as a student are somehow important despite their utter lack of relevance to any discernible constitutional issue.”

The Diversity Tradition at the Supreme Court

Jeffrey Toobin has a great Talk of the Town item about how different kinds of diversity have always been an important consideration in Supreme Court appointments. In the earliest days, the main factor was the need for regional and sectional balance. Soon enough the idea of a “Catholic seat” and then a “Jewish seat” emerged. More recently, those kind of regional and sectarian issues have faded, but appointing an African-American justice was part-and-parcel of the civil rights movement and it’s no coincidence that the justice who replaced him is also an African-American.

Beyond the specific history of the Supreme Court, one might just note that this is how government in diverse societies works. Congress—and especially the House—delivers a certain kind of diversity “automatically.” And presidents have always used their cabinet selections as a way of both illustrating the breadth and scope of their political coalition and simultaneously cementing it. Again, originally that meant regional diversity, then it came to mean the inclusion of Catholics and Jews, and more recently it’s come to mean the selection of non-white nominees.

Ricci and “Activism”

This is hardly an original-to-me point, but you don’t need to look any further than conservatives’ fury at Sonia Sotomayor’s participation in the Ricci appellate decision to see how hollow their complaints about “judicial activism” are. Conservatives just really don’t like Title VII of the Civil Rights Act and they think the situation in New Haven illustrates the injustice of the law as written. So they want the judiciary to reverse its earlier precedents and change things around.

Maybe they’re right or maybe they’re wrong. But this is what judicial activism just is. They could be mounting a campaign in congress to change the law. But instead they’re trying to get the courts to do it for them. You saw the same thing in the other big conservative judicial outrage of recent years, the Supreme Court’s ruling in the Kelo eminent domain case. Here, again, what happened was that some lawyers had dreamed up a fairly clever and somewhat plausible argument as to why the court ought to step in and overrule the policy decisions of some elected officials. And what the court did was decline to step in and do that. In response, many jurisdictions passed some different laws putting more restrictions on the use of eminent domain.

In both Ricci and Kelo, in other words, you have courts acting how conservatives say they want courts to act—applying the law-as-written and not inventing new constitutional doctrines to justify wading into political controversies.

Losing the Crucial “White People With Spanish Last Names” Vote

My friend Julian Sanchez, another not-especially-Hispanic blogger/pundit, has an excellent post on Sonia Sotomayor and the baffling tactics of the conservative movement. I’ll just quote the conclusion:

Look, it’s not racist to oppose a Latina judicial nominee, or to oppose affirmative action, or to point out genuine evidence of ethnic bias on the part of minorities. What we’re seeing here, though, is people clinging to the belief that Sotomayor has to be some mediocrity who struck the ethnic jackpot, that whatever benefit she got from affirmative action must be vastly more significant than her own qualities, that she’s got to be a harpy boiling with hatred for whitey, however overwhelming the evidence against all these propositions is. This is really profoundly ugly. Like Yglesias, I don’t think I’m especially sensitive to stuff like this, or particularly easily moved to anger, but I’m angry. I don’t think Republican pundits really appreciate the kind of damage they’re probably doing, for no reason I can discern given the slim odds of actually blocking the nomination. Which, perhaps, goes to Sotomayor’s point: They really have no idea how they sound to anyone else.

One thing conservatives might want to ask themselves is what would they be saying about Sotomayor if she had the exact same background and record but was a middle class white woman from Riverdale instead of a poor Latina from the projects. Of course, they still wouldn’t like her but they’d find a non-offensive way to express that. They’d say things like “she’ll probably vote with Ginsburg and Breyer whereas I would prefer a justice likely to vote with Scalia and Roberts.” That’s a perfectly good reason to be unhappy with a judicial nominee. Instead, they’re freaking out about her name, about Puerto Rican food, about the idea that she’s bitchy, that she’s benefited from “preferential treatment,” that she must secretly be stupid, that she’s a Klan member, and all kinds of other nonsense that’s only explicable as a hostile reaction to her ethnic background.

Conservatives ought to picture an anti-abortion, gun-owning, married, male, prosperous, Cuban-American small businessman living in the suburbs of Miami. Picture him reacting to the news of Sotomayor’s nomination. Perhaps he’s happy in some sense to contemplate a Latina on the bench, but perhaps not. Either way, the guy’s still a solid conservative. Now picture him listening to G. Gordon Liddy say “I understand that they found out today that Miss Sotomayor is a member of La Raza, which means in illegal alien, ‘the race.’” That’s not going to play well.

If You Take a Poll that Shows Sotomayor is More Popular than Alito, and Compare it to a Different Poll, then Alito Looks More Popular

So Gallup did a poll of people’s initial views of Sonia Sotomayor and compared them to people’s initial views of other recent SCOTUS nominees. The conclusion, she’s less popular than Roberts but more popular than Alito:

That’s pretty straightforward. But over at the innumerate Weekly Standard they think a good way to do the comparison is to compare the ratings Sotomayor gets in a Rasmussen poll (49-36) to the numbers Alito got from Gallup (44-19) even though the questions were worded different. The 2005 Gallup report on Alito also includes the interesting tidbit that the only way to get the public to approve of conservative justices is to dissemble about their philosophy:

The public is evenly divided as to whether Alito probably would or would not vote to overturn Roe v. Wade. Thirty-eight percent believe he would, and an equal percentage think he would not, with the rest offering no opinion. If it becomes clear Alito would vote to reverse Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%.

I think it’s pretty clear to anyone who’s paying attention that all of the organizations backing Alito were doing so under the impression that he would, in fact, vote to overturn Roe.

The Court’s Right Shift

Via Ezra Klein, a good Cass Sunstein article describing the rightward march of the Supreme Court over the past 30 years. The whole thing is worth reading, but this really sums it up:

Here is another way to demonstrate the point. In 1980 Stevens often operated as the Court’s median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. If he qualifies for that position, it is not because of any significant change in his own approach, but because of a massive shift in the Court’s center of gravity. [. . .] A widely unknown fact: Between 1984 and 2000, the Court overruled more than 40 precedents, specifically rejecting the law as it was understood in 1980. And on many more occasions, the Court significantly reoriented the law without overruling particular decisions.

In the popular imagination, a “liberal” justice is one who, like Stevens or Breyer, thinks women have a right to abortion and generally believe congress should have leeway in deciding how it wants to regulate interstate commerce. But to legal scholars, the real judicial left is represented by the ghosts of Thurgood Marshall and William Brennan who saw the constitutional values of equality as imposing affirmative mandates on the state to provide services to poor people. Bill Clinton showed no particular interest in trying to revive that style of legal thinking in the judiciary, and nothing in Sonia Sotomayor’s record indicates that she does either.

The Asymmetry of Majority and Minority

Jewish people are not in any serious way oppressed in the United States of America. But still, being a member of a religious minority group is a distinctive experience. Even in a country that doesn’t officially make Christianity an official state religion, Christianity seems to be the official religion of the state. When Christmas comes around, everyone gets days off so that people can go spend the holidays with their families. When Passover comes around, you get nothing. Mail comes on Saturday but not on Sunday. Liquor stores are closed on Sunday. That’s life, and it’s hardly the worst thing in the world. But it does give you a different perspective on things. And I think it’s a perspective that would probably help a Jewish judge to understand the claims of minorities religious groups in general. Not just other Jews, but Muslims and Hindus and Jehovah’s Witnesses and all the rest. These insights don’t necessarily determine outcomes, but you could imagine a Christian missing some of the real dynamics here. And by the same token, it strikes me as plausible to say that a Muslim judge or a Hindu judge would have similar virtues.

But this is a way of saying that membership in a religious minority group could enhance a judge’s insight into the constitutional protections due to members of religious minority groups. It’s not a claim about Muslims and Hindus and Jews. It would make no sense to look a Hindu judge in India and attribute special insights to him. For a Christian in the United States to say that being a Christian gives him special insight into religious freedom litigation would be creepy and possibly offensive. But if he was saying that his background growing up as a Christian in Lebanon gives him special insight, that would be a totally different thing.

More broadly, you don’t need to make any claims about the special virtues of any group in particular in order to see the point that a diverse group of decision-makers is going to reach a better understanding of issues than a monolithic group would.

Sotomayor vs Estrada

Karl Rove says conservatives shouldn’t worry about alienating Hispanic voters:

The media has also quickly adopted the story line that Republicans will damage themselves with Hispanics if they oppose Ms. Sotomayor. But what damage did Democrats suffer when they viciously attacked Miguel Estrada’s nomination by President George W. Bush to the D.C. Circuit Court of Appeals, the nation’s second-highest court?

As Jon Chait says, the comparison seems a bit inapt:

And the situations are pretty much identical, except that the GOP has a bad reputation among Hispanics and the Democrats don’t, and the Supreme Court plays an ever-so-slightly larger role in the public imagination than the D.C. Circuit Court of Appeals.

This is right. Another way of putting the “reputation” point is that Republicans don’t actually need to lose Hispanic support in order to lose ground. The Latino vote share is growing, and the Republican share of the Latino vote is already terrible. It’s hard to see how opposing Sotomayor is going to help with that.

But what Chait’s left out is the tenor of the criticisms made of Estrada. The argument against Estrada, as I recall it, was that he’s very conservative. The argument about Sonia Sotomayor consists of the idea that we should discount her career and her degrees because those are just the results of the kind of “preferential treatment” that poor Puerto Rican girls from the projects get. We’ve also heard that she has a troubling fondness for Puerto Rican food. That it’s unreasonable that she pronounces her name as if it’s a Spanish word. We’ve heard that she’s a soft-hearted woman who wants to set aside the law in favor of empathetic victims, and also heard complaints that she’s failed to set aside the law in order to help out empathetic white people. These kind of criticisms are going to drive Hispanics away from the conservative cause not because conservatives are criticizing a Latina, but because they’re criticizing her in terms that imply a generalized skepticism about the qualifications of all American Hispanics, a loathing of Latin culture, and a monomaniacal obsession with defending the interests of white people. And while not all conservatives have gone in for the full Goldfarb/Krikorian madman treatment, no prominent voices on the right seem interested in checking the tide of borderline bigotry from their camp. It’s a reminder that checking prejudice against non-whites isn’t something conservatives are interested in.

Opportunity Knocking for the GOP?

This from Chris Cillizza seems like a big stretch to me:

Given the difficulties inherent in an all out attempt to block Sotomayor, is this nomination already a lost cause for Republicans? Not by a long shot.

If the ultimate goal for Republicans is to defeat Obama in 2012, then the Sotomayor pick presents them with a golden opportunity to cast the president as a traditional liberal — far from the post-partisan figure he was able to present to the American public in the 2008 election.

This seems questionable to me. Joshua Tucker’s call for people to bring his attention to political science research on the impact of Supreme Court confirmation fights on election outcomes hasn’t come up with anything yet. Nate Silver did a quick and dirty analysis suggesting that failed SCOTUS nominees are associated with a small downturn in presidential approval, and there’s no impact of successful confirmations. And of course it’s true that if some as-yet-hidden flaw with Sotomayor emerges that’s for some reason catastrophic enough to sink her confirmation, that would reflect poorly on Obama. But Republicans taking the opportunity to point out that Obama is nominating the kind of judges who Democrats nominate, strikes me as unlikely to dramatically alter anyone’s perception of anything.

By contrast, if conservatives continue to be unable to restrain themselves from loud whining about how society unfairly tilts the odds in favor of Puerto Rican girls growing up in housing projects in the Bronx, they’ll presumably continue their current trajectory of alienating Hispanic voters.

Sotomayor Risk is Primarily on the Downside

Shailagh Murray and Michael D. Shear write that “An all-out assault on Sotomayor by Republicans could alienate both Latino and women voters, deepening the GOP’s problems after consecutive electoral setbacks.” But on the other hand, “sidestepping a court battle could be deflating to the party’s base and hurt efforts to rally conservatives going forward.” It seems to me that it should be easy enough to get the conservative base riled up about something else in the near future. I recall that as recently as last week, the conservative base was furious that Barack Obama and Nancy Pelosi didn’t want to torture people.

In terms of Latino voters, meanwhile, the problem facing Sotomayor’s critics is that she’s almost certainly going to be confirmed. And, once confirmed, she’ll be the first Latina justice on the Supreme Court. Soon after that, there’s going to be an inspirational Sonia Sotomayor biography for kids. Probably two, since one will be in Spanish. Responsible parents and teachers of poor Latina students are going to want to point to her life as an example of how if you work hard and stay in school, you can succeed in America despite many disadvantages. Indeed, look at this editorial in today’s edition of El Diaro (English translation here):

Tras la muerte de su marido, Celina Sotomayor veló por sus dos hijos. Les dio techo y proveyó el pan de cada día. Los guió en medio de las vicisitudes y tentaciones de la adolescencia en EE.UU. Como tantas mujeres latinas, es la roca de la familia.

La hija de Celina, Sonia, tuvo que seguir probándose en instituciones dominadas por hombres – en la Universidad de Princeton, en la Facultad de Leyes de Yale, en la Fiscalía de Manhattan, en tribunal de Nueva York. Cada paso requirió gran trabajo y una seguridad inquebrantable.

Para la madre y la hija, hubo pocas latinas que pudieron servir como modelos a seguir y guiarlas. Hoy, gracias a sus luchas y su arduo trabajo, podemos decirle a nuestras hijas: estudien y podrán llegar tan alto y tan lejos como la juez Sonia Sotomayor.

They’re saying that when Sotomayor was growing up under difficult circumstances, there weren’t a lot of examples she could look up to. But today, thanks to the hard work of Sotomayor and her mother, we can say to our daughters that if they study that can go as far as Sonia Sotomayor. Senators who don’t fight and scrape against Sotomayor’s confirmation will take some crap from their base. But Senators who do fight and scrape to derail her nomination are going to become the villains in a story that a lot of kids are going to hear from their parents and teachers.

Anti-Immigration Zealot Tom Tancredo Takes to the Airwaves to Bash Sotomayor

It seems to me that if conservatives want to avoid a Hispanic backlash against their attacks on Sonia Sotomayor they might want to come up with a better spokesman than anti-immigrant zealot Rep. Tom Tancredo (R-CO):

Indeed, Tancredo might want to ask himself why he was invited on The Ed Show in the first place? Was it because Ed has the best interests of the conservative movement at heart, and was looking to promote the most credible possible conservative voice? Or was it that Tancredo was invited specifically because he’s such a bad spokesman?

Ali Frick takes us back:

Remember, Tancredo is the lawmaker who called Miami a “third world country” because of the number of Latinos there, criticized presidential candidates for “pandering” by participating in a Spanish-language debate, and accused immigrants of “pushing drugs, raping kids, and destroying lives.” He said the issue of immigration is “whether we will survive.

Of course Puerto Ricans aren’t immigrants, but they have many of the same Spanish-speaking, nation-destroying qualities as immigrants from Latin America.

In The Interests of Charity

As I wrote this morning “If you’re a white guy looking to vent about how Puerto Rican women growing up poor in the Bronx get unfair advantages in life, the conservative movement has a lot to offer you.” Just in time, here’s Michael Goldfarb to prove my point “Does anyone dispute that Sotomayor has been the recipient of preferential treatment for most of her life?”

Jason Zengerle comments:

Honestly. Is there anything in Sotomayor’s background–other than the fact that she’s a Latina–that would lead Goldfarb to such a sweeping conclusion? I’m always reluctant to say someone’s a racist, but I’m really struggling to come up with another explanation here.

Personally, I’m of the view that American pundits are too hesitant to call other people’s statements racist, but in the case of Goldfarb I’m willing to lean toward charity. If you look at the man’s body of work in full, there’s tons of evidence that he’s extremely dim-witted and not that much in the way of racially charged rhetoric.

Stuart Taylor Slams Sotomayor

In 2001, Judge Sonia Sotomayor delivered a lecture on diversity at the University of California in which she said she “hopes 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.” Stuart Taylor in National Journal takes a brave stand for whitey:

[U]nless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Leaving aside the fact that this is an inane commentary on a strained reading of Sotomayor’s remarks, let’s take some time out for a political observation. I had assumed that the way this was going to go was that conservatives would complain that Sotomayor is too liberal, then progressives would try to imply that conservatives were opposing Sotomayor because she’s too Latina, and then conservatives would whine. Instead, though, a large proportion of conservative really do seem to want to more-or-less explicitly hang their hats on the idea that Sotomayor is too Latina for the Supreme Court and that she must be stopped to protect white male privilege.

Meanwhile, glancing at the National Journal masthead I’m able to note that at least one institution in America has resisted the temptation to hire a bunch of unqualified Hispanics.

Sonia Sotomayor and Identity Formation

As anyone who knows me can attest, I don’t have what you’d call a strong “Hispanic” identity. Three of my four grandparents are Jews from Eastern Europe. My paternal grandfather, José Yglesias, was a Cuban-American born in Florida. But that puts the family’s actual Hispanic ancestry pretty far back in the past. He grew up in a Spanish-dominant immigrant community, but spoke English fluently. My dad grew up in an English-speaking household and knows some Spanish. I took a semester of Spanish at NYU one summer. And Cuban-American political identity in the United States is heavily oriented around a highly ideological far-right approach to Latin America policy that neither I nor anyone else in my family shares. The Yglesiases emigrated from Cuba before the Revolution, José was initially a Castro supporter, and though he gave that up he and my dad and I all share what you might call anti-anti-Castro views.

But for all that, I have to say that I am really truly deeply and personally pissed off my the tenor of a lot of the commentary on Sonia Sotomayor. The idea that any time a person with a Spanish last name is tapped for a job, his or her entire lifetime of accomplishments is going to be wiped out in a riptide of bitching and moaning about “identity politics” is not a fun concept for me to contemplated. Qualifications like time at Princeton, Yale Law, and on the Circuit Court that work well for guys with Italian names suddenly don’t work if you have a Spanish name. Heaven forbid someone were to decide that there ought to be at least one Hispanic columnist at a major American newspaper.

Somehow, when George W. Bush affects a Texas accent, that’s not identity politics. When John Edwards gets a VP nomination, that’s not identity politics. But Sonia Sotomayor! Oh my heavens!

At any rate, Ann Friedman wrote a great piece on the hypocrisy of this back during the Democratic primary. And I think this item from Neil Sinhababu on constructing political identities is insightful. I think conservatives are playing with fire here, and underestimating the number of, say, Mexican-Americans in Texas who didn’t think of themselves as having a great deal in common with Puerto Ricans from New York who are waking up today to find that in the eyes of the conservative movement normal qualifications for office don’t count unless you’re a white Anglo.