David Souter Retiring, Obama gets to make first SCOTUS pick

[UGAalum94]

Originally Posted by MysticCat

No, she didn't say that a Latina judge was "more fit." She said "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 think "more fit" somewhat skews that statement.

Reading the whole thing in context, it seems clear to me that the point she was trying to make was that while it's a laudable and proper goal for judges to set aside their personal biases when ruling, this cannot really be done completely, and successful attempts to do it can only come if the judge recognizes and acknowledges what his or her experiential biases are. I think she was also taking a stab at holding up white males as the standard by which to measure all other judges, as though white males are somehow exempt from experiential biases and as though the biases of judges who are not white males are measured by how they compare to the "non-biased" white males.

Everyone has biases based on experience, background, etc. You can't ingore them or set them aside to rule on the law unless you understand what they are to begin with.

No why didn't I think to link the whole speech when I posted the long excerpt in post 21? Oh, wait . . . .

So, you think that when you are talking about judges that "reach a better conclusion" doesn't equal "more fit." That seems kind of odd to me.

Isn't the quality of the conclusion a judge reaches, especially when considered alongside the reasoning that guides the decision, really how we should evaluate judges?

Again, I'm satisfied with her at present. What's been discussed so far seems like pretty widely held ideas about diversity express in a way typical of the PC lexicon. It would be unspeakable today to assert the same idea but conclude that the white man would more often than not reach a better decision, but pretty much any other group is welcome to make the claim. We should just nod along and hope the rest of the justices remain healthy and interested in serving.

[DrPhil]

Welp, MysticCat said everything I was going to say.

I will add that there is a balance between treating white and male as the neutral standards versus focusing too much on the experiences of nonwhites and females. The latter can make it seem as though their experiences skew the results and that only nonwhites and nonmales have any potential for irrationality and nonobjectivity in their decision making.

White males' decisions are just as impacted by race, gender, social class, other status group memberships and experiences as any other judges' decisions.

[MysticCat]

Originally Posted by UGAalum94

So, you think that when you are talking about judges that "reach a better conclusion" doesn't equal "more fit." That seems kind of odd to me.

In the larger context of her speech, and bearing in mind that she said she "would hope that a wise latina woman . . . would more often than not reach a better conclusion than a white male," yes, I think there is a difference between what she said and a blanket statement that a Latina judge is more fit to make judgment than a white male judge (which is how a.e.B.O.T. characterized what she said). The very next paragraph of the speech rejects such a characterization.

Isn't the quality of the conclusion a judge reaches, especially when considered alongside the reasoning that guides the decision, really how we should evaluate judges?

Yes, without a doubt. But I think that's what she was saying. Look what comes before and after the quote:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

In other words, she was suggesting that she would hope that a "wise Latina woman" would reach a better conclusion in certain cases than, say, judges like Oliver Wendell Holmes or his successor at the Court, Benjamin Cardozo -- still among the most respected judges of all time, who nevertheless upheld discriminatory laws.

[DaemonSeid]

Originally Posted by MysticCat

In the larger context of her speech, and bearing in mind that she said she "would hope that a wise latina woman . . . would more often than not reach a better conclusion than a white male," yes, I think there is a difference between what she said and a blanket statement that a Latina judge is more fit to make judgment than a white male judge (which is how a.e.B.O.T. characterized what she said). The very next paragraph of the speech rejects such a characterization.

Yes, without a doubt. But I think that's what she was saying. Look what comes before and after the quote:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

In other words, she was suggesting that she would hope that a "wise Latina woman" would reach a better conclusion in certain cases than, say, judges like Oliver Wendell Holmes or his successor at the Court, Benjamin Cardozo -- still among the most respected judges of all time, who nevertheless upheld discriminatory laws.

EIther way, MC, it's a great way to summarize a sound byte.

Too bad many more won't bother to go back and read the speech as a whole and understand that.

Thank You.

[UGAalum94]

Originally Posted by MysticCat

In the larger context of her speech, and bearing in mind that she said she "would hope that a wise latina woman . . . would more often than not reach a better conclusion than a white male," yes, I think there is a difference between what she said and a blanket statement that a Latina judge is more fit to make judgment than a white male judge (which is how a.e.B.O.T. characterized what she said). The very next paragraph of the speech rejects such a characterization.

Yes, without a doubt. But I think that's what she was saying. Look what comes before and after the quote:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

In other words, she was suggesting that she would hope that a "wise Latina woman" would reach a better conclusion in certain cases than, say, judges like Oliver Wendell Holmes or his successor at the Court, Benjamin Cardozo -- still among the most respected judges of all time, who nevertheless upheld discriminatory laws.

Most generously, maybe, but she didn't say that a wise Latina was equally as likely to reach a good conclusion as a white guy; she asserted that the wise Latina was more likely to, and that's why, even in context, I still find it problematic.

It also doesn't make a lot of sense to me to compare historic legal decisions that we generally regard as wrong today with the likely behavior of anyone in the present.

[MysticCat]

Originally Posted by UGAalum94

Most generously, maybe, but she didn't say that a wise Latina was equally as likely to reach a good conclusion as a white guy; she asserted that the wise Latina was more likely to, and that's why, even in context, I still find it problematic.

I'm not saying it's not problematic -- I said above I think it was a poor choice of words. I'm just saying why I don't think, read in context, she was saying that Latinas are more "fit" for the bench than white males. (And again, she did not say that the wise Latina "would" make a better decision; she said that she "would hope" that the wise Latina would make a better decision.)

It also doesn't make a lot of sense to me to compare historic legal decisions that we generally regard as wrong today with the likely behavior of anyone in the present.

I think it does make sense when the judges in question (Holmes, Cardozo) are still held up as among the best we've ever had. (When I was in law school, Cardozo was always mentioned with something approaching a degree of reverence.) Plus, her point was that had an African-American, a woman or a Latino been on the bench at the time, a different perspective would likely have been present in the decision-making, so that what we now regard as a wrong decision might not have been made to begin with.

[KSig RC]

Originally Posted by UGAalum94

Most generously, maybe, but she didn't say that a wise Latina was equally as likely to reach a good conclusion as a white guy; she asserted that the wise Latina was more likely to, and that's why, even in context, I still find it problematic.

Even if we take it at "face value" and ignore context, the equation breaks down to this:

All things being otherwise equal, having a certain experience > not having that experience.

That sentence only becomes problematic when you unnecessarily focus on the race issue. Besides this, it's patently impossible, since no two people will ever be completely equal, so it is basically irrelevant - of course she thinks she is best fit to make judicial decisions.

Would you really be more comfortable if she said "I think others are better fit than I"?

Originally Posted by UGAalum94

It also doesn't make a lot of sense to me to compare historic legal decisions that we generally regard as wrong today with the likely behavior of anyone in the present.

It doesn't? Because we're completely immune to poor decision making? We're so infallible that, 100 years from now, nobody will facepalm over our ignorance, just like we do over decisions from 100 years ago, and they did over decisions 100 years before that, and . . .

[KSigkid]

Originally Posted by UGAalum94

It also doesn't make a lot of sense to me to compare historic legal decisions that we generally regard as wrong today with the likely behavior of anyone in the present.

Bad decisions are timeless, so to speak, and decisions that appear correct today could be seens as terrible in 50 or 100 years. As RC said, no one is infallible, especially when you add in the passage of time.

Originally Posted by MysticCat

I think it does make sense when the judges in question (Holmes, Cardozo) are still held up as among the best we've ever had. (When I was in law school, Cardozo was always mentioned with something approaching a degree of reverence.)

Cardozo is still always mentioned with something approaching a degree of reverence by most of my professors (and there were a few who still regard Holmes as the greatest thing since sliced bread).

[UGAalum94]

Originally Posted by KSig RC

Even if we take it at "face value" and ignore context, the equation breaks down to this:

All things being otherwise equal, having a certain experience > not having that experience.

That sentence only becomes problematic when you unnecessarily focus on the race issue. Besides this, it's patently impossible, since no two people will ever be completely equal, so it is basically irrelevant - of course she thinks she is best fit to make judicial decisions.

Would you really be more comfortable if she said "I think others are better fit than I"?

No, simply that she was as fit as others without asserting that her ethnic heritage and culture experience made her more likely to be fit that others. The element that you regard as unnecessarily focusing on race is the essential issue.

I think it's a mistake to assume ethnicity/culture as a qualification in itself.

Originally Posted by KSig RC

It doesn't? Because we're completely immune to poor decision making? We're so infallible that, 100 years from now, nobody will facepalm over our ignorance, just like we do over decisions from 100 years ago, and they did over decisions 100 years before that, and . . .

No, I think we're very likely to be judged harshly by history. But I think it's easy to assume that had we lived back in time, we'd, of course, bring our superior standards back in time with us. I think it's faulty to assume that. How many white people, Trent Lott apparently excepted, think that legal segregation is where it's at today? And yet, respectable people supported it. Being able to recognize unacceptable law today is no guarantee that you'd have been able to do it in the face of a society that regarded it as normal.

And sure, MysticCat's point that non-whites might have been less likely to agree about the legal decisions we now regard as wrong seems to be a good one. But it's also kind of silly: if we had only been progressive enough to have a more diverse judiciary in the past, we'd have also been a whole lot less likely to regard discriminatory behavior as normal generally, don't you think?

[KSig RC]

Originally Posted by UGAalum94

No, simply that she was as fit as others without asserting that her ethnic heritage and culture experience made her more likely to be fit that others. The element that you regard as unnecessarily focusing on race is the essential issue.

I think it's a mistake to assume ethnicity/culture as a qualification in itself.

So you're denying the role of race/ethnicity in experience (and, by her extension whether we agree with it or not, wisdom)? That seems way sillier than what she actually said (which is that women and people of color have markedly different experiences than white males).

No, I think we're very likely to be judged harshly by history. But I think it's easy to assume that had we lived back in time, we'd, of course, bring our superior standards back in time with us. I think it's faulty to assume that. How many white people, Trent Lott apparently excepted, think that legal segregation is where it's at today? And yet, respectable people supported it. Being able to recognize unacceptable law today is no guarantee that you'd have been able to do it in the face of a society that regarded it as normal.

And sure, MysticCat's point that non-whites might have been less likely to agree about the legal decisions we now regard as wrong seems to be a good one. But it's also kind of silly: if we had only been progressive enough to have a more diverse judiciary in the past, we'd have also been a whole lot less likely to regard discriminatory behavior as normal generally, don't you think?

We'll never know, but even if we assume you're right (note: I doubt you're right), that has nothing to do with her point.

[PeppyGPhiB]

This is all about her use of the word "better." If she had just said, "different conclusion" or "more informed conclusion" or "more nuanced conclusion" I don't think it would've stirred the pot of white males so much. If it did, I'd have to tell them to shut up, because I think what she said is true. We are all products of our upbringing and culture, and a white man cannot possibly see things through the same eyes as a hispanic woman. I don't even think a man can see everything the same way as a woman! That is why it's important that we have diversity on the Supreme Court (i.e. why we need more than one woman to represent a female point of view or perspective when warranted).

[UGAalum94]

Originally Posted by KSig RC

So you're denying the role of race/ethnicity in experience (and, by her extension whether we agree with it or not, wisdom)? That seems way sillier than what she actually said (which is that women and people of color have markedly different experiences than white males).

I find a claim that one's particular race or ethnicity contributes experience or wisdom that can be assumed to be superior to that of another person, identified only by race, faulty. It's that claim that a wise woman or a wise Latina would more often than not make better decisions than a white guy, whose experiences we apparently are supposed to conclude are uniform and less rich, that I think is crap.

Originally Posted by KSig RC

We'll never know, but even if we assume you're right (note: I doubt you're right), that has nothing to do with her point.

Okay.

[PeppyGPhiB]

Originally Posted by UGAalum94

I find a claim that one's particular race or ethnicity contributes experience or wisdom that can be assumed to be superior to that of another person, identified only by race, faulty. It's that claim that a wise woman or a wise Latina would more often than not make better decisions than a white guy, whose experience we apparently are supposed to conclude are uniform and less rich, that I think is crap.

I don't think that's what she meant by that quote. Taken in context, it's pretty clear to me that she's saying that a latina exposed to and experienced in cultural influences would probably have the insight to make judgment calls on people and situations familiar to her...moreso than someone that was unfamiliar with the culture or people of that culture.

I don't think there's anything wrong with thinking that way. I may have studied black history in one college class, but slavery and the civil rights movement, though moving to me, is still probably more emotional to black people in this country. Men may have cared one way or the other about a woman's right to vote (or choose abortion, to bring it into today), but it was women who took up that fight because it was a bigger deal to them. That's just two (or three) examples of law and policy that have been changed in our country due to discussion from different points of view gained from different experiences.

[MysticCat]

Originally Posted by PeppyGPhiB

This is all about her use of the word "better." If she had just said, "different conclusion" or "more informed conclusion" or "more nuanced conclusion" I don't think it would've stirred the pot of white males so much.

Some white males.

I think pretty much everyone has said that she could have chosen her words better. I think she has said that.

Originally Posted by UGAalum94

I find a claim that one's particular race or ethnicity contributes experience or wisdom that can be assumed to be superior to that of another person, identified only by race, faulty.

This is where I think you're taking what she said beyond what she meant. She didn't say her experience was "superior" to anyone else's. She said it was different, and that the difference (not superiority) in experience was what she would hope would lead to a better decision. She gave a specific example of what she meant -- that someone who has experienced discrimination would, she would hope, approach cases involving what amounted to legalized discrimination differently, and that the inclusion on the Court of the voice of someone who had actually experienced discrimination would contribute to a better decision than might be reached absent the presence of such a voice in a case involving discrimination.

It's that claim that a wise woman or a wise Latina would more often than not make better decisions than a white guy, whose experiences we apparently are supposed to conclude are uniform and less rich, that I think is crap.

I hate to keep harping on this, but that's not what she said. She said she would hope that a wise Latina judge would reach a better decision. I think that is a key distinction. "I would hope" takes it from being a catagorical assertion that Latina or female judges will more often than not reach a better decision than white males and makes it more a statement that better decisions result from people of all backgrounds and experiences having a voice and from judges who recognize the ways that their own experiences will shape their decision-making.

Again, I think you're reading things into what she said that the speech in context simply will not support. She never said that white male judges' experiences were uniform or any less rich than the experiences of other judges. She said that they were different -- rich and varied in different ways, if you will. She also suggested that sometimes, white male judges failed to understand that their experiences were not universal, although she was clear in saying that this was certainly not always the case.

[UGAalum94]

Even in context, I don't think she restricts her claim the way you do, Peppy.

I've already said that I have less problem with the idea of how diverse bodies are supposed to function over those made up of demographically similar people, but it doesn't carry down to the idea that this individual's decision making is likely to be yield better decision more often than not than another individual of a different race or gender.

It might or it might not. The racial or ethnic background of an individual in itself isn't likely to be predictive of the quality of decisions.