Tuesday, July 14, 2009

Double Standard for a Latina

I just read this article in today's New York Times: "Sotomayer Says Identify Won't Distort Her Positions."

"Judge Sonia Sotomayor insisted on Tuesday, in the face of sometimes skeptical questioning from Republicans, that she would never allow her background or life experiences to determine the outcome of a case if she were elevated to the Supreme Court."

Two questions and an observation:

1. Has a white man ever been asked if he would allow his background to determine the outcome of a case?

2. Is it even conceivable that a white man would be asked if he would allow his background to determine the outcome of a case?

3. Worse: a white man has claimed that his background affected and would continue to affect his decisions. That man was Justice Sam Alito, who said during his confirmation hearings:

"But when I look at those cases, I have to say to myself, and I do say to myself, 'You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country...'

"When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

(Hat Tip Glenn Greenwald)

Imagine those words coming out of Sonia Sotomayer's mouth. Imagine the Republican furor.

So when a white man says his background will affect his decision making as a Justic, that's an asset for Republicans. A Latina, on the other hand, is forced to disclaim such a possibility.



Will Belegon said...

I wish I could be surprised at that double standard, Barry. But the fact of the matter is that while I am distressed by it, I am not in any way surprised.

It's not only the GOP that acts this way, of course. But they certainly make themselves obvious examples of this kind of behavior.

David Terrenoire said...

Double standards have been part of the warp and woof of GOP politics since as far back as Reagan and maybe before.

Mike said...

I agree, it's a regretable thing. But are we forgetting that Ms. Sotomayer opened the door on the question with the following statement:

"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."

She only stated that her background WOULD play a part in her decision-making process, but that it would allow her to do so more effectively than someone from another ethnic background.

Renegadescribe said...

I think both are wrong. It's wrong for the white judge to think that way and it's wrong for Sotomayer to think that way also.

Regardless of it being a double standard, shouldn't both sides be striving not to allow this sort of thing to occur instead of getting mad about a double standard?

Does that mean she should be confirmed in a play from the "two wrongs can make a right" playbook?

Perhaps not only should she not be confirmed but the other justice should be tossed out.

I mean, don't we all deserve a truly non-partisan justice system? (Yes, I know, not gonna happen, but I can dream, can't I?)

Charlieopera said...

It’s hard to imagine how many more times Republicans (especially conservative Republicans) can shoot themselves in the foot, but their latest attempt at Latin/Female bashing (with unabashed Ricky Ricardo sound effects provided by Tom Coburn) one-ups the recent avalanche of the moral majority’s failings of the flesh (too many to recount it seems). Don’t get me wrong, I’d love to see both major parties disintegrate before lunch today, but conservative Republicans, between sex scandals, racist commentary and Sarah Palin (she really does deserve her own category), seem determined to alienate Hispanics, Women and however many minority and/or independents might be left who are already fed up with a democratic majority that seems content voting Republican 7 months after a fellow Democrat took the presidential oath.

I won’t get into the bailouts and what an outright criminal act perpetrated by this government (both parties) against middle and lower income citizens that was, but watching conservative Republicans publicly detonate themselves has gone from entertaining to scary. I often cringe now when I hear some of what these clowns spew. I even tried watching Bill the buffoon O’Reilly this morning and had to turn to ESPN to watch reruns of the home run derby (fortunately my cable went out before I had to kill myself).

When I read the Alito quote you used here, Barry, I immediately assumed two things: a) it was a horrible quote and b) it was Scalia (that whack job) who’d made it. Then I realized not all Italians look alike (just names ending in vowels). Then I reread the quote and saw it is a valid quote (a very valid quote) and I don’t have a problem with it (perhaps because I was a referee once and if you think people calling a ref nasty names from both benches doesn’t affect their calls, you’re smoking something very strong). I’m fine with Ms. Sotomayor taking whatever she feels is necessary into account to make her decisions. Her “wise Latina woman v. white male” statement might’ve been ill advised, but so what … who hasn’t said something they regretted down the road?

Barry: it’s nice to visit again. I’ve been busy torturing Dave and JD the last year or so … and the political right has chased me back to left of the so-called democratic left. My wife claims I’m now annoying on two fronts.

Barry Eisler said...

Mike, it might be that Sotomayer opened the door to some of the questions she's being asked. But so did Alito. The difference is that in Sotomayer's case, Republicans rushed through the door. In Alito's case, they stood respectfully outside while applauding him for opening it.

Charlie, good to see you back here. I don't have a problem with what Alito said, either. In fact, I'm one of those crazy leftists who think judges should have empathy, and that's really all Alito was saying: "my experience and background give me the capacity for empathy, and empathy makes me a better judge." The thing is, again, this is pretty much the same as what Sotomayer was saying, but with a wildly different reaction from the GOP.

Of course, rightists are big on empathy, too -- but only when it suits their political purposes. For example, they've brought in firefighter Frank Ricci to testify at Sotomayer's confirmation hearing. Is he there to offer expert legal testimony? To aid in a substantive discussion of the underlying law in his case? Of course not. He's there to be the sympathetic face of the person who was affected by Sotomayer's adherence to the law. The GOP's slogan could be: "Forget about the law -- don't you just feel sorry for this poor guy?"


Which is one reason among many that I, like you, can no longer take the GOP seriously.

Anonymous said...

Talk about wow. Barry I usually admire you opinion but this is a bit much to endure. Alito said he considers it. Judge Sotomayor said a 'she hoped a wise Latina women, with the richness of her experience, would make a better decision than a white male without that experience.' That just is not comparable to what Alito said. As for the GOP bashing, go ahead, but what has that to do with Judge Sotomayors comment. As a person with a legal degree the law is to be administered even handedly without regard to race.

I don't know if Judge Sotomayor is qualified to be on the court or not, I am not qualified to make that decision. If she is then good for her and I'm sure she will do a fine job. But you and the other apologists are making it about the GOP when it is about her statement which has no equivilence to Judge Alito's as deftly as you tried to make it so. That kind of argument is beneath you, as you know you to be a better advocate than that and your arguments are typically sound and well thought out. This has the ring of something hollow to me. I wish I could come on here and say 'you're the greatest' every time but I don't always agree.
I hope this doesn't come across as rude as it is not my intention to be that. I just wish to express that I disagree with assessment of this issue and I don't understand why you have such a anger toward the GOP without similar anger toward the Democrat party. They are equally to blame in all of this and equally do the victimhood dance, and stand by and say nothing when it suits them, but pounce when it fits their political agenda.

Linda Pendleton said...

I believe Sotomayer is an excellent choice, and well experienced. Empathy, I love it. More people need it. That does not mean decisions are based on race or other things besides Constitutional Law as some may imply.

A lot of women also are intuitive. How come the Republician boys didn't ask about that? Or how often she cries?

As usual the Republicans will jump on anything to try and discredit, and they seem to be getting so skilled at distorting and even telling lies.

It would be nice to think the Republicans might return to sanity some day.

But maybe we shouldn't hold our breath for that one.

Good comments, Barry.

Barry Eisler said...

RBishop, please don't apologize for disagreeing with me! You have every right to be wrong.

Kidding, kidding! (about the being wrong part, not about not having to apologize). I welcome contrary opinions here, as long as they're backed by evidence and argument and respectfully delivered. So not only do I have no complaints, I thank you.

As for the substance, I just can't see any material difference between what Alito and Sotomayor said. Both were explaining how their backgrounds would make them better judges. Even if I agreed that there were some minor difference (and I don't), the difference would still at most be a matter of degree, not a difference in kind, and therefore not something that could justify praising one while damning the other.

But that's just my opinion, and I could be wrong. FWIW, the fact that I disagree with your argument wouldn't lead me to suggest that your argument is "beneath you," as you have suggested for me.

Thanks again,

Charlieopera said...

Mr. Bishop ... I bash both parties equally and with equal passion. I have voted for both parties (switching from dems to reps in 2000 and regretting everything about those two votes once it was obvious to me how badly I was lied to). That said, I have zero faith in the dems (watching this fiasco regarding health insurance--how blue dog dems seem determined to vote republican and accomplish NOTHING one more time. I did not vote for either party this go and will not so long as one is the lesser of two evils. I prefer a third party (preferrably socialist but I'll take ralph nader).

The Dems have proved themselves useless to me going way back. The Reps, after lending them my support (from disgust with the Dems) proved themselves criminal.

The GOP doesn't need bashing was my point ... they're doing a hell of a job on their own.

There was no difference in the two statements. Zero (from where I sit--today in North Carolina but I suspect when I return to New Jersey I'll feel the same as I did before I left).

It is impossible to adjudicate without emotion and all that affects emotion. To suggest one can do so without "feelings" is ignoring reality.

You're certainly right about the politics of it all, though ... and it's why health insurance will be stalled yet again. Now, suddenly, everyone is worried about the deficit. What a joke. Reps turned it into a fiasco with what turned out to be two wars of choice (and we're still spending there). We bail out Wall Street at the taxpayers' expense, but people can continue to go without health coverage because of how much it will cost?

It's more than time for a socialist party. Or maybe the dems should quit laughing guys like Kucinich off the primary stage.

The joke has been on all of us for way too long now.

Anonymous said...


True enough. I should not have written that. I won't offer an excuse because there is none. I will delete the phrase from my vocabulary because it is a cheap verbal trick and it was 'beneath me' to use :).

I appreciate the back and forth on ideas you foster and encourage on your blog and I apologize for expressing myself so poorly.

I think you are an excellent thinker and writer and I enjoy your views, even when I disagree with them, because they are well reasoned. I sometimes just disagree with the conclusions drawn. Although, I confess I too could be wrong, and I am often am. Just ask my wife.

Too many people simply 'feel' and don't actually think a problem through.

Pleae correct me again if I use specious language since I am striving to to be better at my own thinking and writing and I welcome the instruction from someone whose ideas I respect.

Anonymous said...


Thanks for reply I didn't read it before replying to Barry. I didn't intend to be rude and ignore you. I agree that people feel and judges feel like anyone else. However, it is required of them to put aside personal feelings and have dispassionate mind and obey the law. Law is justice and when the law is used to do anything but enforce justice is perverted and the law no longer serves the people but those who will pervert. The basis of our legal system is for everyone to be treated equally. If judges use their feelings to adjudicate the law then no one can get a fair trial who the judge may not like regardless of the justness in their case. Society is separate from the government. The government is a function of society and it is societies job to do philanthropic not the justice or legal system. That is not to say that judges don't feel or that they aren't affected by their experience. But their experiences should merely serve to inform them on the law and the law should be their guide not the other way around. Sorry for the overly long reply. But again I apologize for missing your initial response to my post. Please see my aplogoy to Barry for my ignorant rhetoric as well. Mea culpa, mea culpa, mea maxima culpa.

Charlieopera said...

No problem, Mr. Bishop.

It is often a much better bet to ignore me (as my mom and wife would advise).

I get what you’re saying but I suspect total objectivity is an unobtainable ideal; the idea that anyone could separate personal feelings from their interpretation of the law (for there is no definitive law free of individual human perspective). Whether one is trying to adjudicate little league balls and strikes or a Supreme Court case, one’s personal background, etc., will ultimately weigh in on one’s decision. We can strive for objectivity, but I doubt we can ever obtain it. That said, I don’t want judges carrying grudges (whatever the cause) to the bench, for that would be truly disastrous, but it has probably happened a lot more than any of us would be comfortable admitting.

One thing I did address in the earlier post had to do with conservative Republicans bashing themselves and how marginalized they’ve become. It seems I change my opinion about this week to week lately (mostly because the Dems seem so intent on chasing independents back the other way). I’m afraid my political predictions mirror my super bowl predictions (about 85% wrong), so between my prognostication and the Democratic Party’s inability to get ANYTHING done, I’d say the smart money on 2012 will ignore me and go with the Reps (minus anything remotely resembling Sarah Palin) to make a big comeback. Nothing makes my stomach turn more than watching Democrats accomplish nothing. They won the white house … they have the Congressional majority … they have the Senate … Wall Street has OUR money … Osama Bin Laden is smiling in some cave (or has been dead for several years) … we’re still in Iraq … what exactly we’re doing in Afghanistan that is different from “spreading democracy” is beyond my ability to comprehend … we’re spending money everywhere and with no end in sight, but when it comes to national health insurance, suddenly we have to be concerned about the budget deficit.

This government needs an enema … then it needs a Ralph Nader.

Charlieopera said...

One more thing ... in the year 2009 we still can't seem to grasp that "all men are created equal" thing. So long as gays cannot find representation from the two major parties (other than lip service), voting for either party (unless you're in favor of treating gays as "less than equal" and that is exactly what voting down gay marriage equates to) continues to make a mockery of what we're all supposed to get all teary-eyed patriotic about.

National health care, equal rights (the list goes on, trust me) ... only Ralph Nader and his ilk seem unafraid to pursue such issues (that should no longer be issues in the year 2009).

I just watched Chris Matthews spend a good five minutes (before I shut the television off) discussing Obama's birth certificate nonsense again.

Honestly, WTF? Don't the Democrats and their media spokespeople have something better to pursue than that crap?

Barry Eisler said...

No worries, RB, we all get carried away sometimes. Just this morning I was sarcastic with someone on my Facebook page.


Geoffwah said...


We met very briefly yesterday at Narita (I was with my friend Krisanne on the way back to Seoul). Just wanted to drop in and see what's up.

You're right, it's a huge double-standard. I'll have to call my dad and get the standard Republican rebuttal.

Anyhow it was nice to meet you, even momentarily.

Take care,


Barry Eisler said...

Hey Geoffrey, thanks for looking me up and sorry I didn't get to say a proper goodbye -- was getting pretty antsy about that 4:35 flight (I made it, glad to say).

Best to Krisanne and enjoy Seoul! And I hope Tokyo will be your next adventure.




conducted by Danny Bloom in Taiwan (August 15, 2009)

Anne Mangen is a reading specialst at the National Centre for Reading Research and Education at Stavanger University in Norway, and a paper she published in late 2008 in the UK on the differences betweem reading on paper and reading on screens has catapulted her to the forefront of the debate on this very controverisal topic.

In a recent email interview, I asked Dr Mangen to go over some of the
issues involved here. As some readers might know, I have been
advocating that society adopt a new word for reading on screens, since
I feel screen reading is so different from reading on paper, and I
feel that with a new word we can study the differences better -- and
point out the differences better, too -- and I have gently, quietly
suggested the word "screening" to mean "reading text on a screen". Of
course, not everyone agrees with me; and even Dr Mangen does not agree
with me, even though it was her 2008 academic paper that got me
started on this quixotic quest. But that's okay. I respect Dr Mangen
highly, and I still consider her my mentor on all this.

When I asked her that since reading on paper is very different from
reading on screens, does she think that at some point we might need a
new word in English for "reading on screens", she replied: "Not
really, because I doubt that one single word is able to denote the
complexity of the process in any accurate and useful way."

Dr Mangen went on: "The term “reading” is already a general term
covering a range of very different processes on different cognitive
and perceptual levels, undertaken in a range of different situations,
with a vast number of different textual material. As well as
non-textual material, when one talks about “reading faces”, or
“reading the next move in a game of chess. When talking about
reading, there always follows a requirement to supply more precise and
narrower concepts to clarify what aspects of the reading process and
experience we are currently talking about, and this requirement is no
different whether we read on paper or on screen (or on any other
device). "

She added: "I think the main dichotomy might remain that between
“screen reading” and “print reading”, and then one will have to employ
add-on and ad hoc clarifications and specifications of these general
concepts, such as for instance scrolling and hypertextual reading as
instances of screen reading, and turning the page when print reading."

"Moreover, terms like scan, skim, browse, and close-read apply equally
as well to screen reading as to print reading. What is interesting is
what terms and processes such as these actually entail in the two
different reading conditions (i.e., reading on screen and print). And
this is what has to be specified additionally, I think, instead of
replacing the generic term “reading” with “screening”as you suggest,
Danny, -- which will be too un-nuanced and indistinct and hence, not
very useful -- at least not scientifically," she said.


"In general, I should add that I am critical to unnecessary
neologizing, as I think that too much research (particularly in the
arts and humanities) is about creating new words and concepts where
they are not needed, hence taking the focus away from discussing
substance and content of theoretical arguments and developments to
rather focusing on rhetoric and language," she added.

When I mentioned to Dr Mangen that my concept behind using the word
screening to try to capture the fact that the experience of reading on
a screen is fundamentally different from reading on paper -- and not a
priori worse or better; just different, she agreed, saying: "Yes, the
experience of reading on a screen is different from reading on paper;
although in what ways and to what extent must be specified in each
instance, situation and purpose of reading."

But she added: "However, whether reading on a screen is better or
worse than reading on paper depends on a range of variables -- the
reader’s prior experience with both formats, the purpose and situation
of the reading act, the type and genre of text, the disposition of the
reader, and other variables."

When I told her that I wanted to introduce the word screening as a new
word for reading on screens in order to draw attention to the vast
literary shift that is washing over us right now, as we speak, and if
she agreed that we are now witnessing a vast literary shift, Dr Mangen
replied: " Yes, I would say that the current shift from paper to
screen represents a vast literary shift, the implications of which --
short-term and, in particular, long-term -- we are not yet aware of."

I asked Dr Mangen if she feels, as I do, that reading on screens might
hamper or hinder the critical analysis skills of what pepople are
readingsne replied:
"This question is a too general – but very important also–and it
cannot be dealt with in such a general, either/or manner, as you
phrase it. The precise reading situation, context, purpose, kind of
text, reader dispositions, device characteristics, and other
vairables, would have to be specified in order to yield any
constructive and interesting answers to your question. So your
question is too general, but it's an important one."

I asked Dr Mange a specific question, asking her: "If in the future
most reading is done on screens, from computers to iPhones to Kindles
to even textbooks on screens, could this hurt the critical thinking
skills of young people to think, analyze and assess information?"

Dr Mangen replied: "It’s tempting to answer with the cliché, and say
that only time will tell, but I do think it is appropriate and
important to raise these critical questions, over and over -- even at
the risk of being marginalized as a Luddite, Danny. Maryanne Wolfe at
Tufts University in Boston raises this issue, too, from a
cognitive/neuroscientific point of view, in her excellent book "Proust
and the Squid", which I highly recommend to you."

Finally, I asked Dr Mange if she was willing or ready to say goodbye
to Mr. Paper and greet the Screen Age with a completely open-minded
welcome, she said: "No, at least not when it comes to the educational
aspects of reading."

So it goes. I was in Taiwan tapping on my computer keyboard in a
computer lab at a local university, since I don't even own a computer
and never have, and she was on the other side of the world in Norway,
on summer vacation, and I felt it was a good interview, a very good
interview indeed. I learned a lot.

Rissalee said...


You wrote: "As for the substance, I just can't see any material difference between what Alito and Sotomayor said. Both were explaining how their backgrounds would make them better judges. Even if I agreed that there were some minor difference (and I don't), the difference would still at most be a matter of degree, not a difference in kind, and therefore not something that could justify praising one while damning the other."

I have no dog in this hunt, but I wanted to try to point out two factors that you might be missing in your argument. I am comparing only the two statements given on this blog (by Sotomayer and Alito), not addressing GOP or media response nor the suitability of either judge for the Court.

While both judges were explaining how their backgrounds would make them better judges, Sotomayor pins her hopes on her gender and ethnicity; Alito on the experience (i.e. discrimination) of his ancestors. He does not mention that his being male will help him, nor does he mention his own ethnicity. He leaves himself out of the equation all together - other than to say that he hopes he will benefit from the knowledge of his ancestors' varied experiences (which involved more than gender and ethnicty). We should all strive to benefit from experience; to claim special inherent knowledge based on gender and ethnicity seems suspect.

The second difference is "this benefit" itself. Is the "benefit" in this case Knowledge? Alito seems to say that it is, with the added benefit of empathetic understanding. Sotomayer also claims knowledge, but she seems to state that her knowledge won't make her a better judge in general (i.e. toward the people in the cases she hears) but "better THAN" her judicial counterparts. This, to me, is a recognizable difference between the two statements. Alito didn't claim to be a wiser judge than Hispanic females, but Sotomayer did claim to be a wiser judge than white males.

I think that Alito was making the point that he will use his experience to combat innate discrimination in order to rule more "blindly" from the bench, while Sotomayer, in contrast, implies that her experience has led her to affirm discrimation (being "better than," based on one's own gender and ethnicity) and that she will continue to judge according to this discrimination that has produced greater wisdom in her than in her counterparts, basically elevating her gender and ethnicity above that of other judges.