Identity Politics Eats Itself: The “Wise Latina” Edition

Update: I forgot to hat tip Hot Air. So now I have.  And now, a HotAiralanche and an Acealanche.  Cool, thanks.

Update (II): A DaTechGuyalanche, too!  Cool.

So this morning I had a bit of fun on twitter, with the hashtag game #ThingsThatOffendLiberals and responding to a few of them.  One of the more clueless tweeters had this exchange with me:

#ThingsThatOffendLiberals crusty old white republican men telling women what they should/shouldn't do with their bodies
— olivia (@princessxolivia) January 8, 2014

Wow that's racist MT @princessxolivia: #ThingsThatOffendLiberals old white republican men telling women what they can do w their bodies
— Aaron Worthing (@AaronWorthing) January 8, 2014

(See below for an explanation of RT v. MT.)

@AaronWorthing How?
— olivia (@princessxolivia) January 8, 2014

Um, judging by the color of one's skin. Derp. @princessxolivia
— Aaron Worthing (@AaronWorthing) January 8, 2014

She goes on, either not getting it or pretending not to when she was shown to be wrong and indeed racist.

This is identity politics, folks, and it’s getting more and more common on the left, the tendency to define your political position according to one’s religion, race, social background and so on.  And really, it is bigotry with a smiley face on it.  And as much as it presents itself as warm and friendly, underneath it all is bigotry and hatred: you just have to have the right event to trigger it.

Of course, one famous example of identity politics was when this statement emerged from Sonia Sotomayor when she was seeking nomination to the United States Supreme Court.  This is what she said:

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.

I said at the time it was a flat out racist statement, and it was disqualifying.  Liberals said it was not racist in context, but in fact the context makes it even worse.  For instance, in that speech, reprinted by UC Berkeley News, she goes on to decry the rulings of “wise” men who just happened to be allegedly white.  Further she was specifically refuting a speech by Justice O’Connor where O’Connor said this:

Just when the Court and Congress have adopted a less sanguine view of gender-based classifications, however, the new presence of women in the law has prompted many feminist commentators to ask whether women have made a difference to the profession, whether women have different styles, aptitudes, or liabilities. Ironically, the move to ask again the question whether women are different merely by virtue of being women recalls the old myths we have struggled to put behind us. Undaunted by the historical resonances, however, more and more writers have suggested that women practice law differently than men. One author has even concluded that my opinions differ in a peculiarly feminine way from those of my colleagues.

The gender differences currently cited are surprisingly similar to stereotypes from years past. Women attorneys are more likely to seek to mediate disputes than litigate them. Women attorneys are more likely to focus on resolving a client’s problem than on vindicating a position. Women attorneys are more likely to sacrifice career advancement for family obligations. Women attorneys are more concerned with public service or fostering community than with individual achievement. Women judges are more likely to emphasize context and deemphasize general principles. Women judges are more compassionate. And so forth.

This “New Feminism” is interesting, but troubling, precisely because it so nearly echoes the Victorian myth of the “True Woman” that kept women out of law for so long. It is a little chilling to compare these suggestions to Clarence Darrow’s assertion that women are too kind and warm-hearted to be shining lights at the bar….

Do women judges decide cases differently by virtue of being women? I would echo the answer of my colleague, Justice Jeanne Coyne of the Supreme Court of Oklahoma, who responded that “a wise old man and a wise old woman reach the same conclusion.”

Now, Professor Jacobson’s post, where I drew that from, cuts out some, and I cut out even more but you get the idea.  O’Connor was railing against the idea that women ruled differently from men (she did not drag race into the issue, but I think we can guess she might have said something similar on that subject if prompted).  She was saying the very idea that women are different as lawyers was being peddled as a “New Feminism” but what it really amounted to was a very old sexism.

And how many times have we seen that on the subject of race?  When I was in middle school and high school in Charlotte, North Carolina, I was dismayed to hear black people say that education was a “white thing” and to accuse academically accomplished African Americans of “acting white” simply by struggling to make something of themselves.  They particularly picked on any black students in the “AG” (academically gifted) classes, suggesting that they should only be for white people.  Thus these were some black kids, advocating for segregation, in Charlotte, North Carolina.  Exactly how did those views differ from the Klan?

O’Connnor was rejecting this kind of New Feminism, and probably would have rejected the kind of “racial identity” I outlined in the last paragraph.

By contrast, Sotomayor was rejecting O’Connor’s rejection.  She was saying, in essence, “no, my race and my gender are relevant as a judge.”  But there is no way to say that a judge would be different without arguing that one or the other is superior, which is what she basically argued, claiming that a “wise latina” would have reached a better decision than giants such as Holmes and Cardozo (whom, depending on your definition, might qualify as a “wise latino”).

And let’s call it what it is: racism and sexism.  But too often in academic circles, women are given a pass on being sexist, and people of minority races* are given a pass on being racist, as long as it is smiley, affirmational racism.

And I have seen first-hand that people who adhere to a more traditional definition of bigotry—judging a person by the color of their skin or their gender and rather than the content of their character—are afraid to apply that definition equally.  So Sotomayor can stand up at a symposium called “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation” and say what she said, and if anyone noticed a problem they probably kept it to themselves.  By comparison if a white man stood up and said that he hoped a wise white male judge would rule better than a wise latina or wise black woman, he would probably be literally thrown off campus.  In other words, the definition of racism applied on campus often depends on the race of the person saying something potentially racist.

And this leads to inequalities all around.  Because of this blatant discrimination on campus, Sotomayor said this over and over again without anyone challenging her.  That meant when she sought the highest level she could achieve in her career, placement on the Supreme Court, she was handicapped by that happy-face racism she had engaged in.  Maybe if someone had challenged her earlier, she could have either 1) rethought her views or 2) if they were not actually racist and sexist, found a way to restate them so they didn’t come off that way.  Instead, she was forced to pretend that she had merely engaged in a poor choice of words... five times.  It didn’t pass the laugh test, although she did get on the Supreme Court, so that is something.

And so now this causes additional inequalities.  Imagine you are a big law firm trying to win a case, and you feel that the best chance to win it is by convincing Justice Sotomayor.  So who are you going to pick?  A wise white male or a “wise latina?”  What would any rational person do?

Before you say “pick the wise latina” bear in mind something else.  It is often observed that when a judge has an obvious biasing factor, that sometimes they bend over backwards to prove they are not discriminating.  In other words, if a big firm put a “wise latina” in front of Sotomayor, she might feel a need to be extra tough on that attorney, just to prove to everyone she doesn’t have a bias.  (That is why traditionally in bias cases involving judges, both sides have a right to challenge the judge for bias, even if the bias normally would benefit the party.)  So ironically, it might result in a net reduction of Latinas arguing before the Supreme Court.

But there is a vein of thought in the left that she actually would be better, being a wise latina and all.  After all, the logic went, she would not practice “white male” law and thus the left could feel confident that she will support big government, pro-choice policies, restraints on evil corporations or whatever they are hoping for, agenda wise.  Why?  Because these days many liberals judge one’s (political) character by the color of their skin.

(Because why should people of minority races or ethnic groups fear big government?)

A perfect example of this is the hatred directed toward Clarence Thomas, because he refuses to let his skin color dictate his decisions.  For instance, that cesspool, Jezebel, called him a racist for not changing the criminal law because a black person was asking him to do it.  Yes, really.  Time called him “Uncle Tom Justice” and Twitchy aggregated the racism when he dared to rule against Affirmative Action.

And very often it devolves into softer racism.  When it was observed that he and Scalia agree a very high percentage of the time, many assumed that Thomas was following Scalia’s lead.  Anyone who has observed the court over time with an open mind has seen that this is objectively not true: Thomas often would stake out positions different from Scalia, only to see Scalia later change his mind and join Thomas.  Which doesn’t mean Scalia necessarily just follows Thomas’ lead, either, but it dispels the idea that Thomas just follows Scalia: I think they would probably say they just agree on a great deal of subjects and fundamentally think alike.  Another criticism is that because Thomas doesn’t talk very much during oral argument, that he must be “lazy.”  Thomas has said publicly that he doesn’t talk because he doesn’t see a point to it, and experienced lawyers tend to wonder if he is actually right—that Supreme Court cases are won on the briefs and not in oral argument.  Combine that with the still vocal constituency that believes he did sexually harass Anita Hill, and you have a large number of opponents who think he is intellectually inferior, lazy and sexual lascivious.  “Historical resonances” indeed.

But if Sonia Sotomayor is the beneficiary of this happy faced racism and sexism (which holds that (1) gender and racial identity determines viewpoint and (2) therefore, the views of minorities and women are naturally superior to white men), this identity politics can turn against her in the blink of an eye.  So the other day Sonia Sotomayor granted a stay to the Little Sisters of the Poor Home for the Aged, who said that being Catholic nuns, they could not in good faith purchase insurance that included abortion as required to under Obamacare.  But this deviated from what a minority woman was supposed to do, resulting in this rage-filled essay at U.S. News and World Report:

The Catholic Supreme Court’s War on Women

By JAMIE STIEHM

Et tu, Justice Sonia Sotomayor? Really, we can't trust you on women's health and human rights? The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year's Eve in Times Square. Or maybe she's just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let's be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing.

Right, because only a Catholic would think it is a little ridiculous to force a bunch of nuns—who swear a vow of celibacy—to pay for birth control and abortion coverage.  It reminds me of that line in Hot Shots! Part Deux, where Topper Harley explained why it was probably unwise to bring an extremely hot woman in the midst of a group of (male) Buddhist monks: “These men have taken a supreme vow of celibacy, like their fathers, and their fathers before them...”  Look I am sure celibacy vows are broken now and then—I tend to think the entire idea of celibacy as a method of spiritual enlightenment is a poor idea—but it doesn’t mean it is suddenly not absurd to force a bunch of nuns to pay for 1) a service they don’t believe they are ever going to need, and 2) are morally opposed to it (indeed, they think abortion is murder).

Besides, nuns can fly away from sperm, right?

Humor aside, there was nothing particularly Catholic or particularly radical of Sotomayor to have ruled as she has.  I am a Presbyterian and I probably would have ruled the same.  Indeed most experienced lawyers would recognize it doesn’t even noticeably increase the chances that Sotomayor will rule in their favor when the Supreme Court does rule on the case.  It just means that the status quo is preserved until the Supreme Court has a chance to rule, an outcome that is not even very unusual.

But that was enough to reduce her from being a wise latina, to being just another Catholic on a court that is waging a war on women or some silliness.  It harkens back to the Know-Nothing party and their paranoid belief that the Irish and German Catholics were some kind of fitth column in America, biding their time until the Pope tells them to overthrow Freedom and Democracy.

And it indeed ignores the real views of these justices.  For instance, Justice Kennedy doesn’t rule as a Catholic so much as a straight out libertarian.  But in her mind he’s just a Catholic.

Meanehile, Jamie Stiehm makes her anti-Catholic paranoia even more obvious as she goes on:

Sotomayor's blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions. Especially if "you" are female. This is not true of all Catholics – just look at House Democratic Leader Nancy Pelosi. But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor's stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.

Right, she was supposed to rule as a woman, using her lady parts presumably, and not as a Catholic.  Alas, she goes on:

Catholics in high places of power have the most trouble, I've noticed, practicing the separation of church and state. The pugnacious Catholic Justice, Antonin Scalia, is the most aggressive offender on the Court, but not the only one. Of course, we can't know for sure what Sotomayor was thinking, but it seems she has joined the ranks of the five Republican Catholic men on the John Roberts Court in showing a clear religious bias when it comes to women's rights and liberties. We can no longer be silent about this. Thomas Jefferson, the principal champion of the separation between state and church, was thinking particularly of pernicious Rome in his writings. He deeply distrusted the narrowness of Vatican hegemony.

The Catholics are coming!  The Catholics are coming!  Run for your lives!

And, alas, she thinks it is a conspiracy.  Oy vey:

The seemingly innocent Little Sisters likely were likely not acting alone in their trouble-making. Their big brothers, the meddlesome American Roman Catholic Archbishops are bound to be involved. They seek and wield tremendous power and influence in the political sphere. Big city mayors know their penchant for control all too well. Their principal target for years on end has been squelching women and girls – even when they should have focused on their own men and boys.

And so they squelch women and girls... by letting nuns refuse to buy insurance that includes birth control and abortion.  Because not forcing them to buy things is squelching them, somehow.  Orwell would be proud.

She goes on:

In one stroke with ominous implications, there's no such thing as Catholic justice or mercy for women on the Supreme Court, not even from a woman.

Yes, it is not at all a sign of mercy to grant a group of nuns a stay from the law.  The moral inversion here is nothing less than stunning.

The rock of Rome refuses to budge on women's reproductive rights and the Supreme Court is getting good and ready to strike down Roe v. Wade, which became the law of the land 40 years ago. President Clinton had it exactly right in his formulation: abortion should be safe, legal and rare.

Meanwhile, the forces arrayed against women's right to self-determination have been busy taking their campaign to the statehouses.

Of course to say this is a matter of self-determination is even more Orwellian.  Obamacare is a massive violation of the right of self-determination, forcing you into a financial relationship against your will and even scrutinizing your relationship to see if it deemed sufficient by government standards.  It has already cost more people their health insurance than have gained it, Democrats “protecting” people from bad insurance policies by depriving them of insurance entirely much as minimum wage protects teenagers from low wages by pricing them out of the labor market.  Obamacare is no more about self-determination than slavery is about freedom.

Alas, she goes on:

In roughly half of them, women's human rights have been eroded. On the airwaves, the anti-woman conspiracy goes on, with Rush Limbaugh leading the pack of thousands of men. He uses the Obamacare contraception mandate to say, just about every workaday, that young women are just using the government to get sex, or some such thing. He wins the prize for virulently infecting the public dis-coarse.

With friends like Sonia, we don't need opponents like Rush.

That is right, by refusing to force nuns to pay for abortion, immediately and without delay, Sotomayor has become Rush Limbaugh.  Because in Ms. Stiehm’s mind, Sotomayor is the worst thing imaginable: a traitor to her gender.

Years ago, Justice O’Connor wrote that “[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”  This is not a command to the citizens, but I think it does qualify as good advice.  Sonia Sotomayor herself did not live up to that ideal, buying into the “soft” bigotry of identity politics.  But as is often the case, the soft bigotry transformed itself instantly into hard, ugly bigotry the moment she stopped doing exactly what was expected of her race and gender.  This is where identity politics inevitably leads: when you treat people simply as components of  a racial, religious, sexual or national class, however much its proponents smile, bigotry and hatred is just below the surface and ready to lash out.  Justice Sotomayor is seeing that ugliness first-hand.  One can only hope that she learns from it, and walks away from identity politics.

---------------------------------------

* Of course there is some debate over whether Hispanics are a race or ethnic group, a discussion that thoroughly bores me.  Since my focus is on discrimination and eliminating it, the only question that matters is if it is dumb to discriminate between Hispanics and any other racial/ethnic group the same way it is dumb to discriminate between black people and white people.  And the answer is an obvious yes, to me and therefore whether you want to call Latinos a race or ethnicity is academic to me, because discrimination against them (or in their favor) is precisely the same evil as what we traditionally call racism.

---------------------------------------

For those not on twitter, or merely new to it, a “MT” means a modified tweet.  A “RT” means a “retweet,” that is when you manually send out someone’s exact words to the world at large, maybe with your own comment ahead of it.  Take this tweet:

Identity politics is eating itself RT @EdMorrissey US News: Catholics have taken over the Supreme Court, or something http://t.co/89eYcqpGew
— Aaron Worthing (@AaronWorthing) January 8, 2014

There what I am doing is taking what Mr. Morrissey tweeted, “retweeting” his tweet without any modification, and then adding my own comment in front of it.  So a RT is a way of signaling that you are quoting another person exactly.  By contrast, a MT means you are not.  So my MT above didn’t quote her exactly, but condensed her words a little to save space, so I can add my own commentary.

---------------------------------------

Speaking of biases, let me confess mine as well.  A long time ago, when I was trying to get equality of opportunity when taking the LSAT, one case I relied on was Bartlett v. NY State Bd. of Bar Examiners, authored by one Sonia Sotomayor, then a U.S. District Judge.  I particularly liked this passage explaining why dyslexics like myself should not be excluded from the practice of law with this pithy comment: “If the bar examination were intended to test a person's visual ability to read or a person's ability to perform under time pressure, there would be no blind attorneys.”  I don’t believe my writing is skewed by gratitude, but I am disclosing that so you can decide for yourself.

---------------------------------------

My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

---------------------------------------

Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.