The Default Norm

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Congress, Supreme Court

I’ve used the phrase “default norm” a number of times, so it was nice to see Michael Tomasky (or at least, the headline writer at Comment Is Free) pick it up. Maybe somebody’s reading The Mahablog?

Tomasky’s headline is “Because ‘white male’ equal default human ‘normal,’ see?” I regret I didn’t have time to watch the Sotomayor hearings yesterday, but from the commentaries and videos I take it that the Senate Republicans made thorough asses of themselves and might as well have grilled Sotomayor wearing Klan hoods.

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Craig Crawford asks, “Does the Republican senator [Lindsey Graham, in this case] think it is amusing that he and his party’s condescending tone toward the Hispanic woman was costing them ethnic votes with each passing hour of Tuesday’s Judiciary Committee hearing?”

I wrote in an earlier post that the old white guys in the Senate consider white maledom to be the default norm, and that in their view “bias” is deviation from the default norm. You get that doubly from conservative old white men, who whine incessantly about “judicial activism,” which they define as judicial rulings based on the judge’s ideology instead of precedent and statutory law. However, one soon understands by paying attention to to the Right that the real definition of “judicial activism” is “any judicial opinion that doesn’t align with right-wing ideology.” If a judge narrowly applies statutory law and comes to a decision they don’t like, it’s “judicial activism.” However, if an opinion breaks all precedent and sits in an entirely different ball park from statutory law, it isn’t “judicial activism” if they agree with it.

Thus, as Dahlia Lithwick writes,

But even when Sotomayor is being questioned about her judicial record, the focus isn’t on her legal approach or process but on the outcomes. So when she talks about her Ricci decision, Jeff Sessions asks her why she didn’t apply affirmative action precedents that had no bearing in a case that was not an affirmative action case. When she speaks about Didden, her eminent domain case, Republican Chuck Grassley asks why she didn’t analyze the Kelo precedent in a case about timely filing. Nobody wants to hear how she got to a result. They want to know why she didn’t get to their result. Time and again she is hectored for deciding the narrow issues before her. It’s like a judicial-activism pep rally in here.

There’s another interesting dynamic going on here. The Los Angeles Times convened a panel of legal scholars to comment on the hearings. Erwin Chemerinsky, Dean of the UC Irvine School of Law, spoke for the rest of the panel when he said,

She repeated the slogan that “judges apply, not make the law.” Although I understand why this is said, I find it frustrating that nominees find it necessary to say something so clearly incorrect and that gives the public such a misleading picture of what the Supreme Court does. Every first-year law student knows that judges make law. In a common law system, like the United States, most of tort, contract, and property law is judge-made law. Everything the Supreme Court does makes law. To pick an example from a recent Supreme Court case, the Court would have made law whether it allowed or prohibited strip searching of a student suspected of having prescription strength ibuprofen. Whether the Court found a constitutional right to abortion in Roe v. Wade, or rejected such a right, it would have made law.

But, you know, after weeks of hysterical shrieking from the Right about an off-the-cuff comment from Sotomayor on making law, she has to say she won’t make law. Everyone still has to tiptoe around the tender sensibilities of the Right, no matter how ridiculous they are.

Mike Madden writes that Sotomayor said, “I want to state upfront, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging.”

Nevertheless, barely 10 minutes later, Sessions was asking her this: “Do you think there’s any circumstance in which a judge should allow their prejudices to impact their decision-making?” Sotomayor — who didn’t get to the point where she was virtually assured a seat on the Supreme Court by being born yesterday — knew how to answer that one. “Never their prejudices,” she told Sessions. But he kept at it. “Aren’t you saying there that you expect your background and — and heritage to influence your decision-making?” he asked. “That’s troubling me. That is not impartiality.”

This is rich:

The obvious point — that the background and heritage of old white guys influences their decision-making all the time, too — would not have been the politically sound one to make. So Sotomayor played it cool. “My record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case,” she said, and would wind up saying again and again, in more or less the same words, throughout the day. “In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.” A few hours later, Sessions flat-out told reporters he didn’t care what she’d said. “I don’t know — this is the confirmation process, so we got a statement from a day of the confirmation process that contradicts a decade or more of speeches.”

In other words, to Sessions, his biases against Sotomayor speak louder than what she actually said in the hearings. Madden continues,

That was more or less how the whole day went; Republicans hurled increasingly pointed questions at Sotomayor, the nominee calmly parried them, and the Republicans mostly ignored her.

This is old, familiar behavior to me, although not something I’ve had to deal with personally for several years. But I can remember in the 1960s and 1970s, when I was a much younger woman and second-wave feminism was still new, I very often found that men projected opinions and qualities on to me that I did not possess. And it didn’t matter what I said about my opinions or myself. They knew what I thought and who I was because I was female, and those females are all alike. I could say, “I sincerely understand grass is green,” and they’d flash me a condescending smile and continue to lecture me why grass was green and not blue. Their biases overruled what I said. Happened all the time.

As I wrote in an earlier post, we all have biases. Generally being “fair” is not losing one’s biases, but perceiving one’s biases as biases. If you recognize your biases as biases, you are in a position to overrule them as the facts dictate. But if you are so unconscious of yourself that you don’t recognize your biases as biases, then your “thinking” generally amounts to casting around for support for your biases. Then you put the biases and the cobbled-together “support” together and call it “reason.”

The unconscious crew of Senate Republicans who grilled Sotomayor yesterday brought up her “wise Latina” remark several times. It must have struck a nerve. Several of them at various times have said that had they said something like that, it would have been the end of their careers.

We can see plainly from the hearings yesterday that they can put on public displays of flaming racism and still hang on to their jobs, but never mind. As Mo Dowd said, “After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.”

Meanwhile, a right-wing group called Committee for Justice has created an ad that ties Sotomayor to Bill Ayers and the support of terrorism. The group is trying to raise money to put the ad on television. If I had any money I’d send it to them. Let the world see the absurdity, I say.

Update: Rush Limbaugh said of Judge Sotomayor, “She doesn’t have any intellectual depth. She’s got a — she’s an angry woman, she’s a bigot. She’s a racist.” That’s got to be an all-time high-water mark of psychological projection.

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15 Comments

15 Comments

  1. bill bush  •  Jul 15, 2009 @9:27 am

    The Sotomayor proceedings remind me of the old b&w movie of Kafka’s “The Trial” with an absurdist judiciary setup that runs an accused through a system disconnected from reality yet maintaining itself so it can do whatever it is it thinks it is doing. The fiction of forms generates lots of headshaking, if little else.

  2. c u n d gulag  •  Jul 15, 2009 @10:20 am

    Watching Sessions and other some of the other Senators, who would have gladly greased the whips and held the fire hoses for Bull Connors, talk about racism brings absurdism to a level that even Beckett and Ionesco couldn’t have dreamed of.

    To paraphrase Dylan Thomas, Sessions and partners “Do not go gentle into that good night…” Instead, they ‘Rage, rage against the dying of the white.’

    Let these worms squirm on the path they’ve chosen. And we all know what happens to worms who’ve been exposed to the sun for to long, don’t we?
    Adios, boys!

  3. c u n d gulag  •  Jul 15, 2009 @10:34 am

    Ooops! Should read, “exposed to the sun for too long…”
    God, I hate when I do that!

    More fun today. Though, it will be impossible to top Sessions’ Woody Allen/Marshall McLuhan moment that happened yesterday. I wish the judge had said, ‘Senator Sessions, you know nothing of my work.

  4. uncledad  •  Jul 15, 2009 @10:52 am

    Bill Maher was on “Hardball” yesterday, he was pretty funny quoted something like:

    “All these white people, especially white men who are so incensed about reverse racism and Sotomayor because the problem for too long is Puerto Rican women have had their boot on the neck of white men.”

    That pretty much says it all. What a bunch of schmucks, they (the repubs on the committee) really look like Neanderthals, even for them.

    Whole interview here

  5. BadKitty  •  Jul 15, 2009 @11:44 am

    Rush Limbaugh said of Judge Sotomayor, “She doesn’t have any intellectual depth. She’s got a — she’s an angry woman, she’s a bigot. She’s a racist.”

    I cannot tell you how many times I’ve heard that from a rightwinger when I’ve been arguing with them. The minute they start in with “you’re just an angry woman”‘ or ‘You’re a racist”, I know I’ve won the argument. Any legitimate points they may have had have been made and refuted and all they have left is their sexism and racism.

  6. joanr16  •  Jul 15, 2009 @1:01 pm

    I’m at work all day without access to Internet video, so I have to make do with recaps at the end of the day. The audio clip of Lindsey Graham that NPR played this morning made me laugh out loud. These Southern banty roosters think they’re strutting, while in reality they just display their idiocy to the world.

    I keep waiting for some Dem on the committee to pointedly announce that “Antonin Scalia’s never decided a case based on his personal prejudices… right?! [Wink, nudge.]” Probably won’t happen, though.

  7. PW  •  Jul 15, 2009 @1:38 pm

    I can’t watch/listen to the hearings, though I’ve heard clips on the news. The Kyls and Hatches and Sessions are beyond appalling — they are really embarrassing. Most times when I get a clear-and-present-danger feeling about America and think seriously about ex-patting, the strongest motivation is fear. In this case, rage and embarrassment.

    Sotomayor is one of the more intelligent, experienced and well-rounded people to be nominated for the Supreme Court in a long time. I think my rage is due in part to a system which has been so deformed over the years that it subjects this honorable, wise person to endless days of narcissistic humbuggery — coming from a small group of nattering old fogeys some of our fellow-citizens actually voted for. As a Texan, I did my darnedest to keep Cornyn out of the Senate. Just so’s you know!

  8. s  •  Jul 15, 2009 @2:42 pm

    Yesterday NPR said she remained calm while some of the Congressmen yelled.
    They can’t ask a question without yelling? Today there is a blip on Yahoo saying a Congressman did a Ricky Ricardo impression while responding to her.

    Ugh.. and we vote for these people….

  9. c u n d gulag  •  Jul 15, 2009 @3:48 pm

    A little off the topic, but well worth reading about – Republicans, hoist by their own petard!
    Sen. Coburn (R – Mars, the War Planet), decided he’d thought of a clever poison pill regarding the health bill: All members of Congress and their staffers would have to go for the Public Option. He figured that Dems were like he and his ilk, and that they’d never go for what the commoners would be stuck with; that they’d rather stick to their Federal Plan.
    WRONG, Moosebreath! The Dems jumped on it and thanked him for the amendment that helped make this a BIPARTISAN effort! HA!!!

    Link: http://www.politico.com/politicopulse/0709/politicopulse39.html

  10. Stella  •  Jul 15, 2009 @5:56 pm

    This is painful to watch. I suspect the republican senators hope to provoke that “meltdown” with their rude behavior. Didn’t their moms teach them to never interrupt a lady, or a judge?

    I admire her patience and hope she can maintain when they finally get to that menopause question. Everybody knows a woman of that age can be touchy.

  11. erinyes  •  Jul 15, 2009 @8:33 pm

    Limbaugh calling the kettle black? Go figure.
    The Republicans are so full of crap, its rediculous. Apparently, they don’t want a supreme court justice, they want a computer that will just spit out pass or fail, no nuance or critical thinking allowed.
    I’m quite sure tha right LOVES judge Judy, she is as mean as a snake, and takes no prisoners.
    Sotomayor seems like a good balance to the court, and it needs to be balanced to function properly.

  12. Daphne Chyprious  •  Jul 15, 2009 @8:42 pm

    Superb paragraph on how biases work. Truly a pleasure to read it.

  13. PurpleGirl  •  Jul 15, 2009 @9:35 pm

    S — you’re referring to Senator Coburn’s use of ‘splaining to do”. He managed to insult two groups of voters — Cubans (Ricky Ricardo/Desi Arnez was Cuban) and Puerto Ricans (Judge Sotomayor’s heritage).

  14. Doug Hughes  •  Jul 16, 2009 @12:25 am

    Republicans are going after Sotamayor for 2 reasons. First, they are playing to their base. If Rush is not satisfied with Sessions or Graham, he might excommunicate them. Second, they are playing the only card they have. She’s a slam dunk considering the make-up of the Senate and her impeccable judicial credentials.The only way they can stop her is if they piss her off to the point she implodes under pressure.

    One part of me wishes Sonja would give these clowns the verbal ass-kickin’ they deserve and I suspect she could deliver. But what she says in anger could cost her the job, so she’s sticking to a script, and probably planning to kick ass from the bench for 20 years. It’s no fun to swallow your pride and walk away from a fight. She’s a smart girl, and Sonja’s not getting in a bar brawl with Sessions & Graham. We should all be as smart about knowing which fights to fight & which fights to walk from.

  15. Enlightened Layperson  •  Jul 16, 2009 @1:17 am

    Call me late to the party, but I lost all respect for conservatvie complaints about judicial activism about the time Tom Delay called the Terri Shiavo ruling an example of judicial activism run amuck. Speaking just for me, I really do think judges should restrain themselves and not make things up that run counter to the law as written in black and white. (And yes, I do think Roe fits in this category). But that is exactly what the judges in Terri Shiavo did; they applied the law as written. And from then on it was quite clear that to conservatives, judicial activism just means “any ruling I don’t like.”



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