By Friday, May 29 – the end of May – it had become clear that the political party no longer in power, the Republicans, had imploded. It was the nomination of Sonia Sotomayor to the Supreme Court, and the de facto leaders of the party being the snarling Dick Cheney, the perpetually Twittering former Speaker of the House, Newt Gingrich (he of the ethics sanctions) and… well, Rush Limbaugh, with Glenn Beck and Bill O’Reilly in the background. The word was this woman was a racist and a dim-witted affirmative action loser who had received special treatment and got lucky. And she hates white men. She would rule against them in any and all cases before her, ruining everything with her dreaded empathy. The evidence of all that was thin, and the new Time Magazine cover story on her would not help much with that line of attack, but that was the line of attack.
Putting the merits of the racist and a dim-witted affirmative action loser argument aside – if there were merits to that argument – it was the party itself that became an issue. Just what were they doing, and why? And just who was in charge? And would American voters, fed up with pesky minorities and gay people, stream back to their side of things? What was the best way to get back into power?
No one seemed to know, but regarding the clearly most powerful voice on the right, Rush Limbaugh, David Frum said this:
On the one side, the president of the United States: soft-spoken and conciliatory, never angry, always invoking the recession and its victims. This president invokes the language of “responsibility,” and in his own life seems to epitomize that ideal: He is physically honed and disciplined, his worst vice an occasional cigarette. He is at the same time an apparently devoted husband and father. Unsurprisingly, women voters trust and admire him.
And for the leader of the Republicans? A man who is aggressive and bombastic, cutting and sarcastic, who dismisses the concerned citizens in network news focus groups as “losers.” With his private plane and his cigars, his history of drug dependency and his personal bulk, not to mention his tangled marital history, Rush is a walking stereotype of self-indulgence – exactly the image that Barack Obama most wants to affix to our philosophy and our party. And we’re cooperating! Those images of crowds of CPACers cheering Rush’s every rancorous word – we’ll be seeing them rebroadcast for a long time.
Limbaugh defender Mark Levin was not happy at all:
David Frum was never much of a thinker. Try as he might, he just can’t seem to attract interest, let alone a following, even when stabbing his old boss, President George W. Bush, in the back with a rambling screed. Profiting from a confidential relationship with a president is about as low as it gets. But Frum, the ex-speech-writer turned self-hating blogger, isn’t done descending. Now he spends his lonely days and nights at his keyboard trying to settle personal scores and demonizing those who dare to dismiss his ramblings as the work of an emotional wreck…
It seems like it was only yesterday that Levin was complaining that it was unfair to criticize him on the basis of one short comment unless one was familiar with the large body of his work. Then when some does undertake the task of familiarizing himself with the large body of Levin’s work, Levin explodes that this too is unacceptable. From Levin’s point of view, apparently, the work others call “research” is some kind of dirty trick. That must explain why he himself so seldom engages in it.
Frum is referring to this – but it hardly matters. As John Amato, from the other side, says – “I’m singing in the rain, just singing in the rain.” After chatting with Amato at the Obama-Clinton debate in Hollywood, well, that is hard to imagine – but for progressives, or liberals, or whatever it is we’re calling ourselves these days, this is amusing.
That empathy thing was driving these guys crazy. Michelle Cottle puts it nicely:
Not to state the obvious, but an upper-middle class white guy reared in the suburbs is shaped by his experiences, carries certain assumptions, and views the world through a particular prism as much as a working-glass Puerto Rican gal from Queens, or, for that matter, the half-black son of a single mom raised in Hawaii. The person belonging to the cultural/ethnic/religious/gender/racial demographic that has traditionally dominated a field (and thus whose perspective has long been the default) may not have given as much thought to his prism as a member of a non-dominant group. But that does not make his prism a neutral one. It simply allows him to more freely indulge his delusions of pure rationality and objectivity.
All she is asking of Rush and the others is that they just stop and think about this. Even a rabid libertarian like Will Wilkerson gets it:
So I was hoping for a relatively centrist liberal who sees some merit in libertarian arguments, especially about the protection of economic rights. As far as I can tell, there is nothing especially worrying about Sotomayor. She’s obviously super-qualified. And from what I’ve read, she seems like a highly competent, fairly moderate liberal who sticks pretty close to the law (which nobody really likes when they don’t like the law!) and is perfectly willing to side with Republican-appointed judges when that seems to her the right thing to do. What are people going batshit crazy over? I don’t get it. And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons. God, I hate politics.
Matthew Yglesias offers a hypothesis:
I see two options here. One option is that a large number of people who are not odious morons have, in the past, behaved in ways that garnered them a reputation as odious morons and have, unaccountably, decided to persist in that behavior. This is a non-partisan blog, so I won’t attempt to sketch the other possibility.
But he does note that Michael Goldfarb of The Weekly Standard and Stuart Taylor of National Journal are engaged in a major research effort to discover and expose examples of the “preferential treatment” of which Sotomayor has been such an obvious beneficiary. Yes, that involves a given, an axiom, that you have to accept to propose such a thing – that there is no possible way she would have risen where she is on her own merits, as such a thing is flatly impossible. Everyone knows about Puerto Ricans, after all.
Yglesias can’t believe they’re serious:
Beyond the simple observation that conservatives really and truly are fanatical in their defense of the prerogatives of white people, the obvious observation to make is that everyone in life has been treated preferentially by someone at some point. Sometimes if you face a lot of disadvantages in life, people recognize that and extend you an extra helping hand. Or maybe, like John Roberts, you were educated at a private boarding school before attending Harvard. Or maybe you’re Irving Kristol’s son. Or maybe because your ideology pleases Rupert Murdoch, he agrees to cover the losses of the magazine you work at.
The only reasonable question to ask about someone like Sotomayor is whether or not you think it’s reasonable to conclude that, on balance, poor minority women benefit from more special advantages in life than do middle class white men. I think that would be a difficult case to make.
It’s hard to look at the composition of the United States Senate, or the Washington Post and New York Times op-ed pages, or the roster of Fortune 500 CEOs and reach the conclusion that the system has been working overtime to promote underqualified Latinos into positions of prominence. Unless, that is, you want to argue that we’re so intrinsically deficient in our ability that we’re structurally underrepresented despite the massive advantages we receive in life. Maybe that’s what Goldfarb really thinks.
Yglesias is a little touchy, but consider his last name. But he is generous with Goldfarb:
My guess, though, is that they haven’t thought this through at all. And that one reason they haven’t thought this through at all is that to the best of my knowledge there are no Hispanics working in high levels at The Weekly Standard and thus nobody around to point out what an ass he’s being.
But that woman did rule against that poor white firefighter who lost his reverse discrimination case long ago in New Haven. Both Michael Gerson and Charles Krauthammer have argued that shows you everything you need to know – she hates white folks. Jack Balkin wonders about that:
Gerson and Krauthammer can use Ricci’s case to argue for impartiality in judging because they assume that the law clearly favors Frank Ricci. But it does not. An impartial judge reading the law impartially might find against him. But if that is so, what work is the distinction between empathy and impartiality doing in their argument? Impartiality may not be on Ricci’s side; empathy may be. Or perhaps – and this is the most likely scenario – the law that applies to the case is not entirely clear.
And that is why there are appellate courts:
The most controversial cases that come before the federal courts are usually not clear, even though the lawyers on both sides often persuade themselves that the law is clear and believe that an impartial judge will have no problem finding for their side. That is not surprising. What makes a case controversial is precisely the fact that people disagree strongly about what the law is and how it should apply. The problem is what to do with these cases, where both sides fervently claim that impartiality and objectivity are on their side and claim that the other side is mistaken and wants to twist or deform the law. Arguing for impartiality is simply not going to solve the problem.
And you could look up the case itself:
On appeal, a three-judge panel of the Second Circuit Court of Appeals (Sotomayor, Pooler and Sack, JJ.) affirmed the district court’s ruling in a summary order, without opinion, in February 2008. However, after a suggestion that the court hear the case en banc, the panel withdrew its summary order and in June 2008 issued instead a unanimous per curiam opinion.
The panel’s June 2008 per curiam opinion characterized the trial court’s decision as “thorough, thoughtful and well-reasoned” while also lamenting that there were “no good alternatives” in the case. The panel expressed sympathy to the plaintiffs’ situation, particularly Ricci’s, but ultimately concluded that the Civil Service Board was acting to “fulfill its obligations under Title VII [of the Civil Rights Act]“. The trial court’s opinion was adopted in its entirety by the panel.
Many have noted that this is an example of judicial modesty – she didn’t legislate from the bench, bending the law to the-way-things-should-be. The law said the city could throw out the test they gave those guys if they thought it would get them in trouble with the law. And in this case, she even expressed “empathy” for the white male victim – but the law was clear. There was nothing to argue but that the law was stupid in the case – but the courts could not just rewrite the law, after all. The three-judge panel all agreed on that. Republicans are supposed to like that approach. What’s the problem?
But it seems the real issue – no matter what the law – is empathy. Sure, the panel “expressed sympathy to the plaintiffs’ situation” – but if she and the other two really cared, they would have changed the law right there on the spot, or something. Or maybe the argument is the reverse – they should have changed the law right there on the spot because cold logic – not empathy or any such thing – demands that the white man who got the shaft deserved better. It’s hard to tell.
If that’s the argument, David Brooks of the New York Times is having none of it:
The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.
Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.
People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.
In fact, they are moral odious morons (see above), and Brooks argues that Supreme Court justices, “like all of us, are emotional intuitionists.” They’re no different:
They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.
As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.
So it may be time for the Republicans to rethink this:
The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. First, can she process multiple streams of emotion? Reason is weak and emotions are strong, but emotions can be balanced off each other. Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.
The evidence is that she is very careful about that trap. At least she knows the trap is there, and spoke about it, repeatedly.
But now the Republicans are trapped, as Hilzoy explains:
Obama is a serious student of the civil rights movement, which in turn drew a lot of inspiration from Gandhi. Both Gandhi and the Civil Rights movement made brilliant use of the following method: you do something right, which you suspect might lead your opponents to do something wrong. If you are right about them, they discredit themselves, without your having to lift a finger. If you’re wrong, you are pleasantly surprised. But you do not have to do anything wrong or underhanded yourself, nor do you in any way have to hope that your opponents are bad people.
That’s what he’s doing now. He has chosen a judge who is by any standard exceptionally qualified, and who has, in addition, a fairly conservative judicial temperament. She sticks close to the law; she follows precedent; having read several of her opinions, if I have any criticism of her, it’s that not seen much evidence of an overarching judicial philosophy other than restraint. (To be clear: if a judge has to lack something, I’d rather it be an overarching philosophy than devotion to the law as written. But I’d rather have both.)
But since Sotomayor is also a Puerto Rican woman, the trap was sprung. Given the chance to do the right thing, the Rush-Gingrich crowd willingly chose the opposite, maybe because that what was they thought opposition parties were supposed to do. But that turned them into something rather odious. The trap was sprung:
If the Republican Party were led by sane and decent people, this would not matter. But they aren’t. As a result, they seem to be unable to see anything about her besides her ethnicity and her gender. The idea that she must be a practitioner of identity politics, a person whose every success is due to preferential treatment, etc., is apparently one they absolutely cannot resist.
All Obama had to do was nominate an excellent justice, and all that is made plain.
Hilzoy ends with this:
And I hate it. I want to have a reasonable opposition party. I also don’t want people of color, and especially kids, to have to listen to all this bigotry. We should be better than this.
But we’re not. In Editor and Publisher there was this – the Times-Observer in Warren, Pennsylvania, ran a classified ad that seemed to call for the president’s assassination. Of course the publisher said it was “unfortunate” the ad made it into the paper, and the editors will be cooperating with law enforcement officials. That’s where we are these days.
Even the Wall Street Journal’s Peggy Noonan has now referred to Sonia Sotomayor’s far-right critics as “idiots” – and she has some advice:
“Let’s play grown-up.” When I was a child, that’s what we said when we ran out of things to do like playing potsie or throwing rocks in the vacant lot. You’d go in and take your father’s hat and your mother’s purse and walk around saying, “Would you like tea?” In retrospect we weren’t imitating our parents but parents on TV, who wore pearls and suits. But the point is we amused ourselves trying to be little adults.
And that’s what the GOP should do right now: play grown-up.
Steve Benen comments:
I’m trying to decide which part of this is more interesting: Noonan’s assumption that Republican Party would have to pretend to be grown-up, or that Noonan thinks there’s still time for the GOP to, as John Cole put it, “dial back the crazy” on the Sotomayor nomination.
And Cole had said this:
Does anyone honestly think they can dial back the crazy on this? It seems like it is already out there and way too late. You’ve had Rush, Newt, Tancredo and others calling her a racist for days, you have all the groups that stand to do some serious moneymaking out there screaming radical activist (think Wendy Long and company), and the assorted right-wing magazines like Commentary and NRO and the Weekly Standard have already pretty much staked out a position on the lunatic fringe, and of course the WingNet has followed suit. How do you roll that back?
Can the Wurlitzer play in reverse?
Well, you can try:
RNC chair Michael Steele, guest-hosting on Bill Bennett’s radio show early this morning, repeatedly distanced himself from Republicans and conservatives who have been harshly attacking Sonia Sotomayor, saying the assault risked damaging the party. …
In what seemed like an effort to distance the party from claims that Sotomayor is “racist” and an “Affirmative Action” pick, Steele repeatedly said that Republicans should be hailing the historic nature of Obama’s pick.
“I’m excited that a Hispanic woman is in this position,” Steele said. He added that instead of “slammin’ and rammin’” on Sotomayor, Republicans should “acknowledge” the “historic aspect” of the pick and make a “cogent, articulate argument” against her for purely substantive reasons.
Steele warned that because of the attacks, “We get painted as a party that’s against the first Hispanic woman” picked for the Supreme Court.
That was just after this – Senator Cornyn of Texas, the chairman of the National Republican Senatorial Committee, called the attacks from Rush Limbaugh and Newt Gingrich “terrible” and “wrong.” No wonder Amato is singing in the rain.
Of course if you want to keep this all straight, see John Dickerson with The Many Brands of Opposition – a taxonomy, or bestiary, of who is playing what role in the disintegrating Republican Party. His categories are the Conservative Snarler (Rush Limbaugh or Bill O’Reilly and others), the Avuncular CEO (Frum and others), the GOP Moderate in Agreement (Charlie Crist who likes his stimulus money and Olympia Snowe who said, “I commend President Obama for nominating a well-qualified woman, as I urged him to”) and the Wise Moderate (former Bush and McCain strategist Mark McKinnon and others). It’s amusing.
But there is Noonan on Sotomayor and the Republicans:
Politically she’s like a beautiful doll containing a canister of poison gas: Break her and you die.
It’s too late. Sorry.