Browsing the archives for the SCOTUS tag.


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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Frank Ricci, Serial Plaintiff

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Supreme Court

It turns out that Frank Ricci of Ricci v. DeStefano fame is a serial lawsuit filer, the sort of guy the Right usually hoots at as being a “lawsuit abuser.” According to Dahlia Lithwick,

  • Ricci filed his first lawsuit against the city of New Haven in 1995 for failing to hire him as a firefighter. He was one of 795 candidates interviewed for 40 jobs, and he claimed New Haven didn’t hire him because he is dyslexic. That case was settled in 1997 when Ricci withdrew his lawsuit in exchange for a job with the fire department and $11,143 in attorney’s fees.
  • However, in 1997 Ricci left the New Haven fire department and went to work for Middletown’s fire department. He was dismissed from the Middletown job after 8 months. Ricci “appealed his dismissal, claiming that fire officials had retaliated against him for conducting an investigation into the department’s response to a controversial fire,” Lithwick says. The state Department of Labor cleared the Middletown FD of wrongdoing. The Hartford Courant record Ricci’s threats to sue the department, although he never did.
  • Lithwick writes, “Ricci also tried to discredit his former boss, Chief Bartolotta, by disparaging his professional credentials. His fight over access to Bartolotta’s professional training records was resolved between the two of them a week before the matter was slated to be taken up with the state Freedom of Information Commission.”
  • Eventually he was re-hired by the New Haven department, which he sued because he aced a promotion test but was not promoted.

My take on the test issue is that the New Haven fire department wasn’t fair to a lot of people, and while I don’t entirely disagree with the SCOTUS decision I don’t entirely disagree with the lower court decision, either. If you step back and look at the whole case, there are legitimate questions about how fair it was to experienced firefighters of any color to use a written [and oral] test as the entire criteria for promotion, for example. It’s one of those cases in which reasonable people can reasonably disagree.

However, Ricci does seem to be a hothead who is lucky to have had a job with the New Haven fire department at all. One suspects that a black firefighter with the same history of, um, contention with his employers might not have been hired back at New Haven and would now have a new career in the food services industry.

I’m surprised no one on the Right seems to have noticed that in some states that have passed strict “tort reform” laws, Ricci might not have been able to file the original suit against his employer.

Well, no, come to think of it, I’m not surprised at all. Righties have a wonderful gift for not connecting dots they don’t want to connect. But I think in some states that have passed “tort reform” laws, Ricci might have been forced into an arbitration system set up to favor the defendant. And we never would have heard of him, and now he’d have a new career in the food services industry. (If anyone knows anybody with some knowledge of state tort law, I’d love to hear from that person.)

Anyway, Lithwick writes,

Ultimately, there are two ways to frame Frank Ricci’s penchant for filing employment discrimination complaints: Perhaps he was repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white. If that is so, we should all be deeply grateful for the robust civil rights laws that protect Americans from unfair discrimination in the workplace. I look forward to hearing Republican Sen. John Cornyn’s version of that speech next week.

The other way to look at Frank Ricci is as a serial plaintiff—one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command. That’s not the typical GOP heartthrob, but I look forward to hearing Sen. Cornyn’s version of that speech next week as well.

Heh.

Ricci is supposed to testify at Sotomayor’s confirmation hearing, which is absurd seeing that Sotomayor didn’t write an opinion on the lower court decision against Ricci. But Ricci is now the poster boy for reverse discrimination. He may find he has a new career McClatchy is reporting that People for the American Way are urging reporters to look into Ricci’s background and report on it. And, of course, the Right is whining about the politics of personal destruction, of which they are entirely innocent.

There is speculation that Frank Ricci could emerge as the new Joe the Plumber, now that even the Right seems bored with Joe the Plumber. If Ricci doesn’t fall on his face too badly at the hearings, start looking for “Palin-Ricci 2012” bumper stickers. All it takes is a grievance and a dream.

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So-So and the Oxy-boy

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Supreme Court

This story has been public for several days, but somehow it got by me until Michael Tomasky pointed it out

Some years ago a New York City cop named Thomas Pappas was circulating racist literature from his home. The NYPD found out about it and fired him. The case worked its way up to the federal appeals court, which upheld the NYPD’s right to fire Pappas.

But guess who dissented? Yep. Judge Sotomayor held that the firing violated Pappas’ free speech rights.

Tomasky cited SCOTUSblog.

Tomasky also referred to Rush Limbaugh as “Fatface Oxy-boy.” Sounds like a winner.

The “So-So” is from the genuinely depraved Debbie Shlussel, via DougJ at Balloon Juice and Wonkette. Don’t worry; I’m not linking directly to Schlussel. Wonkette quotes Shlussel —

“I can’t help but notice that the sole reason So-So (my very appropriate name for Sonia Sotomayor) was chosen as Barack Obama’s nominee for the U.S. Supreme Court is that she shares the life story of J-Lo, Jennifer Lopez.”

J-Lo graduated summa cum laude from Princeton and then from Yale Law? Who knew? Seriously, I think the nickname “So-So” is kinda cute. I’d hate to think what nickname we’d have to give Shlussel, however. I don’t think it would be G-rated. Perhaps it would be better not to go there.

There are several reports today that conservatives are demanding a Senate filibuster of the Sotomayor nomination. One of these is Mark Levin, a radio talk-show host who once said that a filibuster against a judicial nomination was unconstitutional. Of course, in that case the nominee was Sam Alito.

The leader of the “get tough” movement is Manuel Miranda, and if that name sounds familiar, Greg Sargent explains why.

There’s a decent editorial in the Washington Post today about how absurd the Right’s arguments against Sotomayor actually are. Sotomayor’s resume is remarkably similar to that of Sam Alito — Princeton, Yale Law, years on the bench, etc. But weirdly, some on the Right are calling Sotomayor “the Left’s Harriet Miers.” About the only things Miers and Sotomayor have in common is that they’re both women with law degrees.

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Answers and Questions

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Supreme Court

Tom Goldstein of SCOTUSblog has analyzed Judge Sonia Sotomayor’s court cases that involve race, and his analysis shows no racial bias whatsoever. Go to SCOTUSblog for the numbers.

What interests me more is what Hilzoy wrote:

I honestly don’t know why so many people focus so much attention on their somewhat overwrought interpretations of one line in a speech and so little attention on ascertaining what kind of judge Sonia Sotomayor has been. Her decisions are not classified documents. They are public, and anyone can read them. Moreover, they plainly provide the best evidence of the kind of judge she will be.

Oh, c’mon, Hilzoy, you know good and well why so many people focus on a few words of a speech and not her record. They’ve latched on to whatever they can use to demonize her. They don’t give a bleep about her record, or what kind of judge she might be. They want to hate her. It’s what the live for.

Next question:

I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has.

Yep, that’s a good question.

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Just Like Old Times

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Feminism, Republican Party, Supreme Court

G. Gordon Liddy used the “M” word. It’s like the past 40 years of feminist activism never happened. Of course, for Pat “that woman” Buchanan, they really didn’t happen.

You’d think there’d never been a woman on the Supreme Court before. The reactions to the nominations of Sandra Day O’Connor and Ruth Bader Ginsburg were genteel compared to what’s being thrown at Sonia Sotomayor. As I remember it, Ginsburg’s judicial record at the time of her nomination was, arguably, more “liberal” than Sotomayor’s is now. Certainly when Ginsburg was nominated plenty of conservatives spoke against her confirmation. But (as I remember it) most of those objections were about Ginsburg’s support of Roe v. Wade, not her potentially fluctuating female hormones.

And the way the wingnuts continue to call Sotomayor an “affirmative action” pick is downright hallucinatory. Get this bit of dialog between Bill Bennett and Fred Barnes:

BARNES: I think you can make the case that she’s one of those who has benefited from affirmative action over the years tremendously.

BENNETT: Yeah, well, maybe so. Did she get into Princeton on affirmative action, one wonders.

BARNES: One wonders.

Sotomayor was valedictorian of her high school class and went to Princeton on scholarship.

I doubt any of these same people called Clarence Thomas an “affirmative action pick,” although I found a biography of Thomas that says “Yale University Law School accepted Thomas through its affirmative action program.” To be fair, Thomas’s academic record was respectable enough that he would have been considered for admission regardless of race, I suspect. His academic record is less impressive than Sotomayor’s, however.

O’Connor’s nomination was a long time ago, and my memory of it is hazy. Being nominated by Ronald Reagan rather than a Democrat probably shielded her from the worst of what might have been thrown at the first woman nominee to the SCOTUS.

However, reactions from the Right to Sotomayor are so much more over the top than than they were to the nomination of Ginsburg, who is at least as liberal as Sotomayor, and I do wonder why. Tossing out some ideas —

  • Ginsburg is Jewish. Antisemitism really is a big no-no on much of the Right. Gotta support the state of Israel, you know.
  • Sotomayor is Latina. I think these days the Right is twitchier about Hispanics than they are about any other racial minority.
  • No leadership. There’s no authority on the Right who can order the worst of the hotheads to tone it down.
  • They’re out of power. Nothing fights harder than a wounded, cornered animal.

Anything else you can think of?

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Empaths and Sociopaths

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big picture stuff, Feminism, Social Issues, Supreme Court

This used to be a staple scene in action films, as I’m sure you know — a scary thing happens, and the woman the hero is in love with screams and freezes in helpless terror. Then the hero, cool as scotch on the rocks, steps in and vanquishes the scary thing and saves her. On to the kissing scene.

Many years ago I read a behavioral study that said, if anything, women are slightly less likely to panic and freeze in the face of danger than men are. And when you consider that men are something like ten times more likely to commit homicides than women — murder most often is an act of rage, I believe — you might suspect that men are at the mercy of their emotions at least as much as women.

But we can’t have hysterical men and brave, cool women in films because it doesn’t take us to the kissing scene nearly as easily, does it?

Also many years ago, I realized that when a man said his views were “logical” and mine were “emotional,” the word logical (used in context) meant “what I want,” or “what I believe,” with the underlying assumption that the wants and beliefs of a man are the correct, standard or default, wants and beliefs, and those of a woman are controversial, subjective and/or alternative. This was true regardless of the merits of the man’s position. The want or belief became “logical” by virtue of maleness. “Logic” was something like a trump card played by a man against a woman whenever he couldn’t think of a better argument.

I don’t see the male/female, logical/emotional dichotomy publicly expressed nearly as much as I used to, and younger women may not have run into it as much as I did. But it hasn’t entirely gone away, has it?

This correlates to the idea that whites favoring other whites is not ethnic bias, because whiteness is a default norm; what Publius calls the “invisible baseline” fallacy. In this view, bias occurs only when one deviates from the default norm.

Since the nomination of Sonia Sotomayor to the Supreme Court, many arguments for and against her have turned on the question of whether a judge should have “empathy.” Yes, say some, because it helps her see how her decisions affect real people in the real world. No, say others, empathy and emotion are biases that blur the cold logic of the law.

But I say that if you step away and look at the question a little more broadly, the truth is that the decisions of every judge who doesn’t happen to be an out-and-out sociopath are being shaped by empathy. The distinction is, to whom is the judge feeling empathetic?

My view is that everything we think comes from a complex of psychological discriminations and impulses, little of which have anything to do with “logic.” The way we understand ourselves and the world begins to be shaped from the moment we’re born and continues to be shaped by the culture we grow up and live in. In other words, all of our understandings are biased. This is pervasive and inescapable. Often the difference between “logical” and “empathic” people is that an “empathic” person has at least a dim appreciation of his own biases, whereas a “logical” person is utterly oblivious to them.

This week Nicholas Kristof wrote a column about the difference between how liberals and conservatives relate to the world, and how much of these differences emanate from our prefrontal cortex, which “has more to do with moralizing than with rationality.” Our “logical” thoughts actually begin with the “moral” impulses. “It appears that we start with moral intuitions that our brains then find evidence to support.”

Human brains seem to be wired in a way that makes us want to join tribes and be part of an “us” that stands against an “other.” But if we get to know an “other” personally, they seem less strange and foreign and may cease to be an “other.”

“Minds are very hard things to open, and the best way to open the mind is through the heart,” Professor Haidt says. “Our minds were not designed by evolution to discover the truth; they were designed to play social games.”

Thus persuasion may be most effective when built on human interactions. Gay rights were probably advanced largely by the public’s growing awareness of friends and family members who were gay.

Our minds were not designed by evolution to discover the truth; they were designed to play social games. When John Yoo wrote memos that rationalized torture, he was not being “logical.” He was playing a social game and empathizing with his tribe. When John Roberts makes decisions that are blatantly biased in favor of corporations over individuals, he is playing a social game and empathizing with his tribe.

You see the picture — to some people, empathy is only “empathy” when it’s being shown to people who are not the default norm, or the invisible baseline, or whatever you want to call it. Otherwise, it’s “logical.”

I know my fingers may fall off as I keyboard this, but in his column today David Brooks has a pretty decent description of how the “logical” decision-making process really works. Our conscious, cognitive understandings of things are based on internalized models of what we’ve been conditioned to believe is “normal.” We may be able to articulate our ideas and perceptions in a coolly logical way, but the process by which we arrive at our ideas and perception is “complex, unconscious and emotional.” This is always true, whether we want to admit it or not.

So it is that two different and equally intelligent people may look at the same set of facts in a case and apply the same set of laws and come to different conclusions. They are working from different internal models of what the world is supposed to be. From this their judgments about which facts in the case are critical and which are not may be entirely different.

Brooks asks if Sotomayor is able to understand her biases as biases. This I cannot know. I’d like to think that people who have been the victims of bias are more capable of recognizing their own biases, but in my experience that is often not so. However, I do think that people with a healthy appreciation for empathy may also have more appreciation for the genuine messiness of human decision making than those who — foolishly — see themselves as “logical.”

Going back to the hysterical women and cool-headed men in films, and how that is so not like the real world — my observation is that women may tend to be better at processing emotions than men. That is, when a woman is frightened, she is less surprised — caught off guard, if you will — at being frightened than a man might be.

This is a gross generalization that cannot be applied to individuals; lots of men process emotions more skillfully than lots of women. However, I think there is a tendency for men to be less accepting of and intimate with their own emotions, and this may be as much nurture as nature; cultural rather than physiological.

What’s critical about emotions is not whether you have them, but whether you let them jerk you around and make you act in ways that are not in your best interests. And by any objective measure I’d say men self-destruct at least as much as women do. Logical, my ass.

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The Soft Expectations of Low Bigotry

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conservatism, Obama Administration, Supreme Court

My take on the Right’s objections to Sotomayor, so far:

  • She’s not intelligent.

Of all of the talking points the Right might have hustled up about Sotomayor, this one is the least intelligent. She graduated Princeton summa cum laude, and then went on to Yale Law School, where she was an editor of the Yale law journal. Not intelligent?

Much of the “not intelligent” buzz derives from Jeffrey Rosen’s sleazy little New Republic smear job on Sotomayor, published a few days ago. Glenn Greenwald takes the Rosen piece apart and reveals it to be cheap and shoddy propaganda.

See also Joan Walsh, “Buchanan on Sotomayor: ‘Not that intelligent.'”

One other thing before I move on to the next point — yesterday I quoted from a Washington Post profile of Sotomayor in which a number of her colleagues (and, unlike Jeffrey Rosen’s sources, these people gave their names) called the SCOTUS nominee “brilliant.” Today at the same URL there is an entirely different story about Sotomayor. The “brilliant” quotes are gone; the new article emphasizes Sotomayor’s ethnicity rather than her intellect. Make of that what you will.

  • She’s temperamental, or difficult, or even bullying

Some also call her tough and exacting. In other words, traits that would be an asset to a man are a liability to Sotomayor. And I’ve yet to see a concrete example of her “temperamental” behavior.

  • Obama chose empathy over intelligence

As John Yoo (John Yoo, people!) put it, “President Obama’s nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence in the White House.”

There’s a common fallacy — much beloved of people who themselves have second-rate minds — that people are either logical and rational or emotional and empathetic. To be logical requires squelching emotion — think Mr. Spock — because emotions and rational thinking cannot co-exist in the same head.

This is nonsense. Abraham Lincoln, for example, was among our most intelligent presidents, yet he also was a man of deep compassion. Think also of Albert Schweitzer. I don’t know that Sonia Sotomayor belongs in the Lincoln-Schweitzer category; such people are rare. But a definition of true genius may be an ability to understand the same thing on several levels at once.

I think it’s true that there are some kinds of passions that override rational thinking. Greed is chief among these; also fear, or any impulse to protect and defend one’s ego and self-identity. But genuine compassion and empathy are very far removed from self-destructive passions.

There’s a theory of emotional intelligence that enjoys considerable support in the social sciences. As I understand it, emotional intelligence is the ability to identify, understand and manage one’s own emotions and “read” and relate to other people’s emotions as part of navigating social networks. Emotional intelligence is part of a complex of intelligences that enable one to perceive and comprehend the world.

Not everyone accepts “EI” as an “intelligence,” but I have known many people who were bright enough at book-learnin’ but who were stymied by their own and other peoples’ emotions. So I think there is something to it. The point is that there are many different kinds of intelligence, and IMO the most genuinely intelligent people are those who integrate diverse intelligences.

There’s a fellow named Gerald Huther who is head of neurobiological research at a psychiatric clinic in Germany. Huther wrote a book called The Compassionate Brain: A Revolutionary Guide to Developing Your Intelligence to Its Full Potential. Another edition of the book came out with a different subtitle — How Empathy Creates Intelligence.

Huther’s basic argument is that brains change physically depending on how we use them, and he makes an argument based on brain physiology that the capacity of the brain develops most fully when emotion and intellect are balanced. This is from a review:

By following the usual human path of egocentricity – seeing oneself as the center of the world and acting accordingly – one embeds a fixed pattern of repetitive neuronal connectivity. The harder path of self-development, which leads to a more comprehensive, complex and more highly networked brain, consists in developing qualities that go beyond self-centeredness. Sensibleness, uprightness, humility, prudence, truthfulness, reliability, empathy, and courtesy; qualities such these cannot be developed in isolation. They come as part of a matrix of social feelings that involve connectedness and solidarity that transcend our usual self-centeredness. In the end, says Huther, a person who wishes to use his or her brain in the most comprehensive manner must also learn to love.

In my experience, people who pride themselves in being “logical” rather than “emotional” inevitably are a lot more emotional and a lot less logical than they want to admit. They just aren’t good at being honest with themselves about themselves. (John Yoo is, I suspect, such a person.) Which takes us to the next dig at Sotomayor —

  • She’s an affirmative action hire, chosen because of her ethnicity and not her ability.

This is essentially what George Will says today, if you read between the lines. To Will, the function of “identity hires” like Thurgood Marshall and Sonia Sotomayor is to “balance” the court by showing favoritism to women and minorities over white men. Will writes,

And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented — understood, empathized with — only by persons of the same identity.

Will presents no credible evidence whatsoever that Sotomayor believes this. He gives the much-maligned quote –“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.” But in this quote Sotomayor was not saying that “members of a particular category can be represented — understood, empathized with — only by persons of the same identity.” She’s saying that people with “a richness of experience” have a broader and more inclusive understanding of people than a white man “who hasn’t lived that life.” In other words, it’s not about ethnicity, but experience.

The irony, of course, is that white men usually have their own identity blindnesses and are just as guilty of identity favoritism as the people they accuse of identity favoritism. It’s just that they think of themselves as the default norm; therefore, their biases are not biases.

Publius at Obsidian Wings explains:

Anyway, turning to Sotomayor, what’s interesting about accusations of identity politics is that they implicitly assume that whiteness (or maleness) is some sort of neutral baseline. I call it the “invisible baseline” fallacy – and it’s certainly not a novel concept. The idea is that people forget that whiteness is itself an ethnicity – and one that shapes and colors perceptions (and that enjoys entrenched benefits). Instead, whiteness blends into the background and becomes part of an “invisible” baseline that is conceptualized as “normal.”

Will doesn’t use the word “diversity,” but there is no doubt a court made up of justices with diverse backgrounds will have a broader perspective, and a deeper collective intelligence, than one made up of privileged white males.

Any other themes you’ve seen in the pushback?

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On the Right: Spittle and Spite

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Obama Administration, Republican Party, Supreme Court

I’ve been watching Tom Tancredo on The Ed Show claiming that SCOTUS nominee Sonia Sonia Sotomayor is a racist. This claim is made based on this quote from Judge Sotomayor: “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.” (Thanks Jill Filipovic.)

Tancredo doesn’t get the quote right, of course. In his rendering of it, she just says that Latina women make better judges than white men. And he sat on the Ed Show television panel, bouncing and spitting in outrage, and screaming racist, racist, racist. I think that’s pretty much the plan.

The conventional wisdom seems to be forming that Sotomayor will be confirmed fairly easily. The right-wing interest groups will be screaming and spitting about her for the next several days, but the GOP itself (the CW says) doesn’t want to take her on for fear of further alienating Latino voters. They’re going to complain and call her a leftist, but they know her record is more moderate than some others President Obama might have nominated — or might yet nominate, if the Sotomayor nomination fails.

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SCOTUS Nominee: Sonia Sotomayor

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Obama Administration, Supreme Court

The Washington Post profile of Sonia Sotomayor, President Obama’s nominee to replace Justice Souter, sounds really good to me.

At Yale, her classmates recall a young woman with a brilliant legal mind who was tough when arguing for her views. And although they said she never forgot her modest background, and always identified with the disadvantaged, her main passion was for the law, not a particular political agenda. …

… In 1984, George Pavia, a New York lawyer representing Fiat and other Italian business clients, said he was looking for a young lawyer with courtroom experience to help with products liability cases. He said he found Sotomayor “just ideal for us in terms of her background and training.”

“She is liberal, as am I,” Pavia said. “Liberal without being a flaming type of do-gooder or anything of the sort. To call her a centrist would not be accurate. To call her wild-eyed would also not be accurate. She is far too rational, far too interested in the underlying facts.”

Sotomayor grew up in a Puerto Rican neighborhood in the Bronx and was educated at Princeton and Yale Law School. People quoted in the profile praise her for being even-handed and non-ideological in her judgments.

In an article published before the announcement, Peter Baker of the New York Times announced that “the Left” already was unhappy with President Obama’s short list of potential nominees, which included Sotomayor, because we lefties would only be content with a “full-throated, unapologetic liberal torchbearer to counter conservatives like Justice Scalia.”

“It’s quite likely the left is not going to get what it wants,” said Thomas C. Goldstein, co-head of the Supreme Court practice at Akin Gump Strauss Hauer & Feld and founder of Scotusblog, a well-read Web site. …

… “Unless Obama restrains his compulsion toward centrist consensus and appoints real progressives to replace not only Souter but Ginsburg and Stevens, our right-wing court may get even more conservative,” Jeff Cohen, founding director of the Park Center for Independent Media at Ithaca College, wrote on a Web site for progressive commentary, OpEdNews.com.

Personally, I think most of “the Left” will be fine with Justice Nominee Sotomayor. We’ll see.

Update: CNN has published Sotomayor’s resume and her record on notable cases. Scroll down for the record. From what I see she tends to side with the individual against government and corporate interests. Righties are going to have a fit. I like this lady.

Update: Scott Lemieux ‘s take on Sotomayor

It’s a good, solid pick. Not a home run like Karlan would have been, but I also don’t think she’ll be another Breyer; I see another Ginsburg at worst. For me, she would have been #2 among the viable candidates after Wood, and I don’t think Wood is clearly more liberal; they’re within a range in which appellate court records don’t reveal enough information to make firm judgments.

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Justice Souter Retiring

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Obama Administration, Supreme Court

Thank you, Justice Souter, for hanging in there until Bush was gone.

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