The Wise Latina: How The GOP's Obsession With Race Led To The Worst SCOTUS Hearings Ever

There are very real and important differences of judicial and political philosophy between the Democratic and Republican parties in the current political climate. The differences in views are fundamental and stark. They are incredibly important. But the Republican Party's Paranoid Style, its insistence on the Southern Strategy, made it inevitable that these important differences were never discussed.

Professor Jack Balkin argued that "what the candidates actually say is far less important than what the Senators expect them to agree with. By shaping the constitutional catechism at hearings, the Senate gives an account of what Americans expect from their Supreme Court Justices.

That certainly did not happen in these hearings. This was due to the Republican obsession with race. "The Wise Latina." Indeed, Balkin himself implicitly acknowledges that. His only post on the hearings is titled The Declining Utility Of The Politics Of Racial Resentment, hardly a substantive discussion of weighty constitutional matters. Balkin writes:

I was speaking with a colleague today about the various rhetorical attacks now being levied on Judge Sotomayor-- equating the idea of empathy for those less fortunate with prejudice, and offering Judge Sotomayor's background as a reason to think that she could not be an impartial jurist (as opposed to persons with backgrounds like those of Chief Justice Roberts and Justice Alito, for example). Both of these ideas come from the mouth of that paragon of judicial probity, Jeff Sessions, Senator from Alabama. It is a new and improved way to play the race card, to seek to imbue issues of judging, impartiality and fairness with decidedly racial overtones. Perhaps a decade or fifteen years ago I might have been worried about its force. I am no longer. It is true that the sort of attack we see Senator Sessions making might resonate with a certain part of the population, and especially parts of the often celebrated Republican base. But the percentage of Americans who are likely to be moved by these thinly coded appeals to race has shrunk over the years, and it continues to shrink with each passing day. It is an update of the politics of racial resentment of the 1980s and 1990s in a country that is some twenty years past those debates.

I entirely agree with Professor Balkin on this, as I do on most things. But isn't it a shame we could not have a robust discssion of the role of the Supreme Court, of competing judicial philosophies, of the spearation of powers, etc.? Some would chalk this failing up to the standard judicial confirmation nonsense. I disagree. This went further. When Roberts and Alito were before the Senate, cases were discussed. Legal philosophies were discussed. At least by some Senators.

There was nothing like that discussed here. All we saw was racial hatred. From Republicans. Of a Latina woman.

As a Democrat, I am mightily pleased. Nothing could have been better for the political fortunes of my party. As a citizen, it saddens me that the GOP will not let go of its Paranoid Style.

Update - For some reason, Jonathan Adler wants to declare "victory" for "judicial restraint" (somehow he sees that as a victory for conservatives):

It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy -- a philosophy like that articulated in her speeches and defended by the president -- would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. . . . [D]oes this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama's nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

This is, of course, ridiculous. In fact, Sotomayor said precisely nothing about anything for 2 days. Then again, that was better than the performance turned in by then Judge Roberts - who basically dissembled, if not downright lied for his two days of testimony.

Speaking for me only

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    And Sexism (5.00 / 11) (#2)
    by BDB on Wed Jul 15, 2009 at 05:18:08 PM EST
    Certainly there has been a lot of racism involved in Sotomayor's confirmation hearing, but I also think sexism has played a part, even if it's at time under the radar.  I don't think that a hispanic man would be treated quite this badly by the GOP (although certainly he would still get some of it).  Sotomayor is untrustworthy because she is hispanic and also because she is a woman.   In the Ricci case, it's not just that she voted against a white person, it's that she voted against a white man.  If Ricci were a woman, do you think they'd care half as much?  Ledbetter tells me they wouldn't.  They would think a woman had no place on a fire department in the first place.

    Bingo. And comparative cases (5.00 / 4) (#16)
    by Cream City on Wed Jul 15, 2009 at 05:42:30 PM EST
    are easily accessible in the treatment of Hispanic males for high posts; i.e., Alberto Gonzalez. . . .

    empathy...is code for what people... (5.00 / 2) (#47)
    by coigue on Wed Jul 15, 2009 at 06:35:00 PM EST
    come on, you all know this!

    Do you have a temperment problem? (5.00 / 3) (#50)
    by hollyfromca on Wed Jul 15, 2009 at 07:42:43 PM EST
    Can you imagine that question ever being asked of a man?  The good new is she sat there smiling sweetly, didn't say much and now she will have a lifetime appointment and will never have to listen to c**p like that again!  

    Yeah (none / 0) (#51)
    by squeaky on Wed Jul 15, 2009 at 10:15:53 PM EST
    Bork. Thing is he did have a temperament problem.

    Bolton comes to mind (none / 0) (#55)
    by coigue on Thu Jul 16, 2009 at 12:51:06 AM EST
    And McCain (5.00 / 1) (#59)
    by Carolyn in Baltimore on Thu Jul 16, 2009 at 09:54:48 AM EST
    Maybe the Senators have someone (5.00 / 1) (#3)
    by oculus on Wed Jul 15, 2009 at 05:20:28 PM EST
    assigned to monitor CNN while the hrgs. are in progress.  OK, hit the "wise Latina" and gun control memes.  Now emphasis foreign authorities.

    Embedded Racism and Sexism (5.00 / 3) (#4)
    by squeaky on Wed Jul 15, 2009 at 05:24:00 PM EST
    They do not even see it.

    A friend did a documentary on the police and got permission as long as the police got to approve the final cut. Loud guffaws, back slapping and high fives were observed during the final approval screening. The film got the green light.

    It mad the police look really, really bad to all but themselves and apologists.

    Cops can be the worst (none / 0) (#12)
    by MKS on Wed Jul 15, 2009 at 05:38:51 PM EST
    I would cut in half most police forces and put the money saved by doing that into rehab programs....

    Do you think that the questioning (5.00 / 8) (#5)
    by Anne on Wed Jul 15, 2009 at 05:24:19 PM EST
    would have been different, more substantive, more intellectual, had the nominee been a white woman?  Or do you have any underlying sense that even if the nominee had been an unmistakably WASP-y woman, we might still have gotten mired in temperment and other questions in that vein?

    I ask because for me, some of what I heard had decidedly sexist over/undertones - when added to the racial aspect, it became altogether embarrassing to listen to.  I began to feel that Sotomayor never had even an inch of latitude to show any emotion at all, lest she be cast as too emotionally unstable to sit on the highest court in the land.  I think it explains why she, at times, came across as flat and robotic.

    As for the political fortunes of the Democratic party, I have seen little indication that the party that already holds all three branches of government has acquitted itself well in advancing causes and ideals that matter to me, and to many other liberal Democrats, so I'm not sure how the Republicans driving one more stake into their own political hearts is going to help us much.

    Spot on again. Periodically, y'know (5.00 / 6) (#18)
    by Cream City on Wed Jul 15, 2009 at 05:45:05 PM EST
    as was so hilariously noted in a thread yesterday, the justice may feel sorta down and need to seek the advice of a wise spouse or minister. . . .

    But I think we're seeing the intersection of both nativism and sexism here, all combined in that there temperament thing.  I think that some of these guys expect Sotomayor to suddenly turn into Rita Moreno in West Side Story.


    Periodically, y'know..... (5.00 / 1) (#32)
    by Carolyn in Baltimore on Wed Jul 15, 2009 at 06:00:12 PM EST
    Judge Sotomayor is 55 years old so likely does not have that going on. Conversely, it would add to a 'hot' temperment.

    As long as she keeps her claws in . . . . (5.00 / 3) (#37)
    by nycstray on Wed Jul 15, 2009 at 06:06:19 PM EST
    But, Carolyn, didn't you know? (5.00 / 4) (#39)
    by Anne on Wed Jul 15, 2009 at 06:07:33 PM EST
    A menopausal woman can be even more unstable and erratic...and it can be all the time or at random times; this is why we can't be trusted to have our shaky fingers anywhere near the nuclear button.

    "Is it that time of the month?" has been replaced by, "Uh-oh...are you going through The Change?"


    My poor wife (5.00 / 1) (#40)
    by Steve M on Wed Jul 15, 2009 at 06:09:42 PM EST
    was asked today by a stranger if she was pregnant.  As she was carrying our 3-month old baby, no less!

    And I hasten to point out, the stranger was a woman, and a mother herself.  People are just not very sensitive.


    Aah but.... (none / 0) (#42)
    by Carolyn in Baltimore on Wed Jul 15, 2009 at 06:14:56 PM EST
    Then it's not 'periodically' anymore.

    Ah yes - I have known erratic......


    Problem w/AC in hrg. (none / 0) (#49)
    by oculus on Wed Jul 15, 2009 at 06:41:05 PM EST
    room today.  Sen. Leahy apologized and sd. they're working on it.

    Well, the obsessive questioning about (5.00 / 6) (#26)
    by MO Blue on Wed Jul 15, 2009 at 05:50:43 PM EST
    the "Wise Latina woman" comment would have been eliminated if the candidate had been a white woman. It would IMO have been replaced with any comment made by the woman that referenced any value the female perspective might add to the process. The temperament issue would still be present since we all know that ALL women have problems in that area. The Ricci case would still have the element of a woman ruling against a white male. There is also the possibility that there would have been more sexism to fill in the space that race occupied in these hearings.

    Republicans driving one more stake into their own political hearts has lost some of its importance since many of their agenda items are now being promoted by Democrats.


    If a woman nominee had sd. (5.00 / 1) (#31)
    by oculus on Wed Jul 15, 2009 at 05:58:38 PM EST
    in a prior speech that, due to her gender, she would make better decisions that white males--you think the GOP Jud. Comm. members would have let that pass?  Of the Male Dem. Jud. Comm. members, for that matter.  

    No (5.00 / 1) (#36)
    by MO Blue on Wed Jul 15, 2009 at 06:05:14 PM EST
    That is what I meant by this part of my comment:

    It would IMO have been replaced with any comment made by the woman that referenced any value the female perspective might add to the process.

    You are surely correct (none / 0) (#35)
    by Steve M on Wed Jul 15, 2009 at 06:04:36 PM EST
    at least with regard to the GOP, but honestly, are we all supposed to believe that a "wise woman" would have reached the same decision in Bradwell v. Illinois?  I can't take much more of this argument.

    Good for Salmon Chase, CJ. (none / 0) (#41)
    by oculus on Wed Jul 15, 2009 at 06:10:15 PM EST
    I think it might have been (none / 0) (#6)
    by Big Tent Democrat on Wed Jul 15, 2009 at 05:25:16 PM EST
    But I am Hispanic myself so I am not objective.

    And I'm a woman, which means (none / 0) (#8)
    by Anne on Wed Jul 15, 2009 at 05:31:13 PM EST
    I hear things that maybe a man wouldn't, so there we are.

    And as another woman, I have to disagree (5.00 / 6) (#23)
    by Cream City on Wed Jul 15, 2009 at 05:48:18 PM EST
    with BTD.  These are not the worst hearings ever.  These guys still have a way to go to match their behavior toward Anita Hill in the Thomas hearings.

    Of course, some of the guys got rewarded for that.  One is Vice President today, and another was just welcomed into the Dems for switching parties.  So it would seem that there is incentive for being sexist and racist in the Senate.


    I would agree with you (5.00 / 1) (#27)
    by Big Tent Democrat on Wed Jul 15, 2009 at 05:50:59 PM EST
    But at the least some issues were discussed in the Thomas hearings.

    I mean Thomas lied through his teeth for a reason.


    True (5.00 / 2) (#43)
    by BDB on Wed Jul 15, 2009 at 06:19:56 PM EST
    And it didn't matter for a reason.

    Hard to sort out, espec. because (none / 0) (#10)
    by oculus on Wed Jul 15, 2009 at 05:37:17 PM EST
    Judge Cabranes, male Judge of Latin heritage, is the model for the GOP Senators on the committee.

    And, didn't Sessions (none / 0) (#15)
    by MKS on Wed Jul 15, 2009 at 05:41:57 PM EST
    say that Cabranes was of the "Puerto Rican race too," or so some such bigoted comment?

    "Puerto Rican ancestry" (none / 0) (#21)
    by oculus on Wed Jul 15, 2009 at 05:46:18 PM EST
    Nonsense (none / 0) (#22)
    by Big Tent Democrat on Wed Jul 15, 2009 at 05:47:16 PM EST
    They pulled Cabranes because of his Ricci rehearing dissent.

    The fact is Cabranes probably would have decided against Ricci, but with much more flourish.


    I think Cabranes would have reversed (none / 0) (#38)
    by oculus on Wed Jul 15, 2009 at 06:07:29 PM EST
    the trial court's grant of MSJ and let the case go to trial.  But, of course, had he not voted requested hrg. en banc and voted w/explanation for rehrg. and not indicated publicly he read about the case in the local paper, he wouldn't be championed by the GOP committee members.

    Take into account (none / 0) (#9)
    by lilburro on Wed Jul 15, 2009 at 05:36:40 PM EST
    the "emerging Democratic majority," and Ricci.  If she were a white woman making that decision, people would not so quickly jump to conclude that she identifies with the Latino and AA firefighters who did not pass the exam.  

    Latinos are an emerging political force and she was involved in a controversial race-related decision.  The GOP is paranoid about giving her power.  I don't think a white woman would have to face the "paranoid style" to such a drastic degree.  


    Did any women of any ethnicity (none / 0) (#11)
    by oculus on Wed Jul 15, 2009 at 05:38:35 PM EST
    even take the tossed-out promotional exam?  All the firefighters in the hrg. room appear to be male.

    Answer: yes. Three plaintiffs (none / 0) (#46)
    by oculus on Wed Jul 15, 2009 at 06:34:50 PM EST
    are female.

    Yes (none / 0) (#13)
    by squeaky on Wed Jul 15, 2009 at 05:39:40 PM EST
    If it were a white liberal woman.  If it were someone like Phyllis Schlafly nary a sexist peep would arise.

    Or on the other hand if it were someone like Linda Chavez, someone who testified against Sotomayer,  who is hispanic herself, none of this garbage would arise, imo.


    Correction (none / 0) (#14)
    by squeaky on Wed Jul 15, 2009 at 05:41:52 PM EST
    Little difference if it were a white liberal woman. Chavez and Schlafly would be treated with kid gloves. Of course they would be knocked down on the issues.

    Unless I missed it, Ms. Chavez (none / 0) (#17)
    by oculus on Wed Jul 15, 2009 at 05:43:08 PM EST
    hasn't testified yet.  I do remember her frequent conservative rants on NPR years ago.  

    You Missed It (none / 0) (#19)
    by squeaky on Wed Jul 15, 2009 at 05:45:25 PM EST
    link here

    I testify today not as a wise Latina woman, but as an American who believes that skin color and national origin should not determine who gets a job, promotion, or public contract, or who gets into college or receives a scholarship....

    No - note the date on that testimony: (5.00 / 1) (#25)
    by Anne on Wed Jul 15, 2009 at 05:50:26 PM EST
    July 16th, which is tomorrow.  I think that is what she plans to say in her opening statement.

    No one other than Sotomayor has testified before the committee; Schumer and Gillibrand introduced her.


    OK (none / 0) (#28)
    by squeaky on Wed Jul 15, 2009 at 05:52:59 PM EST
    Missed that,  is what she is going to say tomorrow. No difference as regards my opinion of the treatment she would get compared to the crap Sotomayer is getting were she up for review.  

    At least its not old. (none / 0) (#29)
    by oculus on Wed Jul 15, 2009 at 05:56:09 PM EST
    lol (none / 0) (#30)
    by squeaky on Wed Jul 15, 2009 at 05:57:01 PM EST
    Lordy, I wonder how many will be opening (none / 0) (#44)
    by nycstray on Wed Jul 15, 2009 at 06:23:22 PM EST
    with "wise Latina" tomorrow?

    I wonder how she feels about disabilities and hiring . . .


    I have a feeling that some of the (none / 0) (#34)
    by Anne on Wed Jul 15, 2009 at 06:03:07 PM EST
    witness testimony is going to be really hard to take and create much more of a show than what we have seen the last two days.  And not in a gee-that-was-entertaining-way, but in more of an I-think-a-sharp-stick-in-the-eye-would-feel-good-right-about-now way.

    empathy. (none / 0) (#48)
    by coigue on Wed Jul 15, 2009 at 06:36:23 PM EST
    code for emotional???

    I can say with a prety high degree of certainty (none / 0) (#52)
    by Socraticsilence on Wed Jul 15, 2009 at 10:28:23 PM EST
    that a white WASP-y woman wouldn't have had to endure Coburn's Ricky Ricardo impersenation.

    That was a truly cringe-worthy (5.00 / 5) (#54)
    by Anne on Wed Jul 15, 2009 at 10:40:53 PM EST
    moment that failed on so many levels.  Ricardo = Cuban, not Puerto Rican.  Lucy = not Latina.  Sonia Sotomayor = not caricature of 1950's ditsy woman.

    But then again...Coburn = not fully evolved 21st century man.


    I would have to agree . . . BUT (5.00 / 1) (#56)
    by nycstray on Thu Jul 16, 2009 at 12:56:58 AM EST
    I feel fairly certain they would have found something just as offensive.

    We may be in double whammy territory, but all that does is give them variety. Temperament, emotion (ak now as empathy), gender bias, etc would still be issues. If you think a white woman would have gotten off "easier", can I live on your planet?


    Oh (none / 0) (#53)
    by squeaky on Wed Jul 15, 2009 at 10:30:31 PM EST
    But what about Humphrey Bogart?

    Do you recall (5.00 / 3) (#20)
    by Steve M on Wed Jul 15, 2009 at 05:46:15 PM EST
    the right-wing talking point that the 2006 elections were actually a victory for conservatism, because a lot of the Democratic winners were moderates, because they co-opted various Republican slogans, yadda yadda?  Of course, in every sense that counts the election was a wipeout, but I guess it made them feel better to conclude that somehow the Republicans were winning the war of ideas in spite of it all.

    Adler's post is in the same vein.  Republican nominees have demonstrated that you can do whatever you want on the bench as long as you say the right things at your confirmation hearing about judicial restraint and original intent and blah blah blah.  So if Democratic nominees decide to play the exact same game, does that mean the Republicans have won the war of ideas?  No, it means they identified some successful frames, but at the end of the day those judges will feel just as free to decide cases however they please, the same way the Republican judges feel free to be activists no matter how much testimony they gave about judicial restraint.

    Heck, we could make the same argument in reverse about Alito's confirmation hearings, right?  We could point to all the things he said about empathy and putting himself in the shoes of his immigrant father and so on and so forth and argue hey, this means liberal ideas have carried the day, Alito is afraid to articulate a conservative philosophy that personal experiences mean nothing.  And we could convince ourselves that the Alito hearings were a big win for liberals, but guess what, we'd be idiots.  So too with anyone who feels these hearings are a big win for conservative judicial philosophy.

    Yep (none / 0) (#24)
    by Big Tent Democrat on Wed Jul 15, 2009 at 05:48:37 PM EST
    Silly stuff from Adler.

    Alder doesn't get it AT all? (5.00 / 1) (#45)
    by coigue on Wed Jul 15, 2009 at 06:33:27 PM EST
    Franken and others discussed yesterday that the idea of judicial restraint is, in reality, a bipartisan goal. The GOP was called to the carpet for it's hypocrisy in lauding activism that furthers it's cause (but not admitting that it is, indeed, activism).Dem Senators noted that the GOP tends to define activism as 'anything they don't agree with'.

    Alder must have missed that part.

    Regarding the female vs. hispanic discussion (5.00 / 1) (#58)
    by CST on Thu Jul 16, 2009 at 09:23:28 AM EST
    It is pretty clear that while the subject matter of the hearings was about race, the tone and condescention of the questioners was gender related.  As to whether it would be the same for a hispanic male or a white woman I say no on both accounts.  The resentment factor of affirmative action (to me) is much more racial in nature.  And the pure hatred and fear coming from the republican senators represents that resentment and sense of losing control over the make-up and demographics in the country, which you wouldn't have seen if she was white.  However, the "I'm clearly superior" attitude struck me as a gender induced reaction.  The fact that certain senators felt the need to "school" her, or "explain" what she clearly understood is something you wouldn't have seen if she were male.

    A real double-whammy.

    All that being said, I think the treatment also would've clearly been different were she a republican.  But that is more typical politicial hypocracy.

    Sen. Specter discussed cases, but (none / 0) (#1)
    by oculus on Wed Jul 15, 2009 at 05:18:05 PM EST
    of course he's a (D-PA)now.  

    As I said earlier (none / 0) (#7)
    by lilburro on Wed Jul 15, 2009 at 05:29:53 PM EST
    her involvement in the Ricci case is a real downer.  I think she has been forced to present herself as someone who relies on precedent (the reason she sided against Ricci, after all) to a degree which has made the hearings rather boring and useless.  [And relying on precedent is, as Dickerson says, not exactly the full job description].  I don't think she's been able to speak to issues the way that she could.  She'd have a hard enough time being Latina, but with Ricci involved everything is especially distorted by "adherence to the law" and race questions.  I bet she is a more original thinker than we're seeing.

    I've been enjoying the Slate debate esp these two articles 1 and 2.  This comment is mostly a reaction to Dickerson - the Ricci decision and her race have made it impossible for her to show "intellectual leadership" during these hearings.  She would be completely smacked down.

    Alito and Roberts (5.00 / 2) (#33)
    by Carolyn in Baltimore on Wed Jul 15, 2009 at 06:02:48 PM EST
    also had to swear fealty to precedent.
    What gets interesting is when there are competing precedents.

    How much longer... (none / 0) (#57)
    by DeanOR on Thu Jul 16, 2009 at 03:57:27 AM EST
    does this country have to be dragged down by these bigoted, authoritarian, militaristic, misogynistic Southern conservatives in the Senate?

    Time (none / 0) (#60)
    by CST on Thu Jul 16, 2009 at 09:58:43 AM EST
    Is on it.  I was wondering how long it would take the press to catch on.