Purported special wisdom of minority judges

With its huge Democratic majority, doubtless the US Senate will confirm Barack Obama’s nomination of Sonia Sotomayor to serve on the Supreme Court. The operative principle is clear. Whoever is president gets to name whomever he wants, provided that the candidate is qualified. Without being a superstellar intellect, Sotomayor is clearly qualified for the job based on comparison with previous nominations.

Nonetheless, I harbor certain reservation based on the fact that she seems intent on reviving some of the more doctrinaire aspects of Affirmative Action. These are views and procedures that an increasing number of reflective observers have come to question. For one thing, there is her decision in the Ricci case where a white firefighter in New Haven was denied the promotion he deserved.

Sotomayor has drawn criticism for a statement she made in 2001: “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.” Some Senators will focus on these words during Sotomayor’s confirmation hearings later this summer, as indeed they should.

We are told that the disturbing statement I have just cited has been taken out of the context of her address, entitled ”A Latin Judge’s Voice.” I am not so sure.

In the same address, Sotomayor says, “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.” Later in the address, Sotomayor acknowledges the capability of judges “of different experiences or backgrounds” from her own to make rulings showing sensitivity to the needs of the nation’s diverse population. “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,” she said, referencing the landmark Brown vs. Board of Education Supreme Court decision banning racial segregation in public schools.

Well, which is it? Are “wise Latina women” (and presumably other minority members and women) more likely to reach better conclusions that white males, or are they not?

If we accept the first principle as the norm, then all our judges in future must be minorities and women. As regards women, I suspect that no Phyllis Schlafly types need apply.

The idea of rule by wise minority members was in fact broached by George Bernard Shaw ninety years ago. "Back to Methuselah (A Metabiological Pentateuch)" is a vast tapestry consisting of a preface and a series of five plays. All were written during 1918-20, published simultaneously by Constable (London) and Brentano's (New York) in 1921; and first performed in the United States in 1922, and in Britain in 1923.

In the preface, Shaw sets forth some of his ideas. Simple primitive societies, he says, were easily governable while the civilized societies of the twentieth century are so complex that learning to govern them properly can't be accomplished within the human lifespan: people with experience enough to serve the purpose fall into senility and die. Shaw's solution is enhanced longevity. We must learn to live much longer.

"The Thing Happens," the third of the three plays, begins in 2170. As in Shaw’s own day, Englishmen continue immature throughout their lives. As a result, governmental dignities are mere figureheads, useful only for formalities and ceremonial occasions. The hard work of government is carried out by hired consultants from Africa and China unless competent Scots, Irishmen or Welshmen chance to be available. (The foreigners live no longer than the English, but they mature early.)

The first scene opens with England's president, Burge-Lubin, squabbling with a man named Barnabas—via telephones equipped with television—about which of them should welcome a visiting American who has invented a method for breathing underwater. Barnabas goes to meet the American inventor, who wants to use Records Office film footage to create a promotional cinema showing sundry important Britons who have lost their lives by drowning, but who, with the invention's help, might not have perished. Burge-Lubin summons Confucius, the Chief Secretary, to brief him on governmental matters. Confucius—nominally a consultant from China— is de facto the head of government. After their conversation, Burge-Lubin suggests a game of marine golf, but Confucius refuses on the ground that he is too mature to enjoy playing games. Burge-Lubin excuses himself, saying he must confer privately with the Minister of Health. The Minister of Health is a beautiful Black African woman, and the Presidential conference turns out to be a dalliance via long-distance videophone. She enjoys the flirting, but rejects a rendezvous and breaks the connection.

The premise is that England, even during this future era, is still too immature to run its own affairs. It is better off being governed by outsiders, especially Asians and Africans. Or should we say: “wise Latina women”?

In reality, the outlook for states governed by minorities is not good. Arguably, the troubles that continue to afflict Kashmir are caused by the fact that its Hindu ruler opted for union with India in 1947, defying the wishes of its Muslim majority. After Iraq was established in 1921, the Sunni minority seized control of the government, oppressing the Shia majority--with the results that we all know.

A different, possibly even more disquieting perspective emerges from “World On Fire: How Exporting Free Market Democracy Breeds Ethnic Hatrd and Global Instability” (2002), by Amy Chua, a professor at Yale Law School. This important book has been undeservedly neglected. Chua shows how many countries have come to be dominated what she calls "market-dominant minorities" with their vast accumulation of wealth. By presenting a series of case studies, some of which reflect her personal experience, Chua shows that the tendency of some minorities to benefit disproportionately, when their countries' markets open up to the world, inflames ethnic hatred among the ethnicities who make up the bulk of those countries' populations.

In this book ethnicity functions as a sociological concept, not a genetic or national concept. Thus, the overseas Chinese in Southeast Asia, Lebanese in West Africa, Jews in Russia, whites in Latin America and Africa, and various African tribes in Africa all serve as case studies of market-dominant minorities despite their various differences. Carlos Slim, possibly the wealthiest man in the world, dominates the economy of Mexico. The Slim family is of Christian-Lebanese origin.

Some ethnic groups are thoroughly assimilated by their host countries; some are not. Some are citizens of their host country; some are not. Some rely on key cultural differences to take advantage of globalization while others simply had an a supply of human capital that allowed them to fill key niches in expanding markets.

However one may choose to define ethnicity, and whatever allows these fortunate minorities to take advantage of spreading markets, the key point is that certain minorities, separate from and identifiable to the bulk of the population, have a hugely disproportionate influence in these expanding national economies. And the bulk of the population sees what is going on and is not happy about it.

Chua concludes that the United States is an exception: it has no market-dominant minority. I am not so sure.

At any rate the larger case is clear. It is unwise to allocate disproportionate power to minorities who clearly have a different agenda than the majority. That is a recipe for discord, which often turns violent.


UPDATE (June 10). Here are excerpts from a June 9 piece in the Wall Street Journal by Shelby Steele, the dissident African American writer:

"President Obama's nomination of Sonia Sotomayor for the Supreme Court points to a dilemma that will likely plague his presidency: How does a "post-racialist" president play identity politics?

"What is most notable about the Sotomayor nomination is its almost perfect predictability. Somehow we all simply know -- like it or not -- that Hispanics are now overdue for the gravitas of high office. And our new post-racialist president is especially attuned to this chance to have a "first" under his belt, not to mention the chance to further secure the Hispanic vote. And yet it was precisely the American longing for post-racialism -- relief from this sort of racial calculating -- that lifted Mr. Obama into office.

"The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit. (Here, too, is the ugly faithlessness in minority merit that always underlies such maneuverings.) Mr. Obama is promising one thing and practicing another, using his interracial background to suggest an America delivered from racial corruption even as he practices a crude form of racial patronage. From America's first black president, and a man promising the "new," we get a Supreme Court nomination that is both unoriginal and hackneyed.

"This contradiction has always been at the heart of the Obama story. On the one hand there was the 2004 Democratic Convention speech proclaiming "only one America." And on the other hand there was the race-baiting of Rev. Jeremiah Wright. Does this most powerful man on earth know himself well enough to resolve this contradiction and point the way to a genuinely post-racial America."

[snip]

"Here the minority makes a bargain with white society: I will not "guilt" you with America's centuries of racism if you will not hold my minority status against me. Whites love this bargain because it allows them to feel above America's racist past and, therefore, immune to charges of racism. By embracing the bargainer they embrace the impression of a world beyond racial division, a world in which whites are innocent and minorities carry no anger. This is the impression that animates bargainers like Mr. Obama or Oprah Winfrey with an irresistible charisma. Even if post-racialism is an obvious illusion -- a bargainer's trick as it were -- whites are flattered by believing in it.

[snip]

"Judge Sotomayor is the archetypal challenger. Challengers see the moral authority that comes from their group's historic grievance as an entitlement to immediate parity with whites -- whether or not their group has actually earned this parity through development. If their group is not yet competitive with whites, the moral authority that comes from their grievance should be allowed to compensate for what they lack in development. This creates a terrible corruption in which the group's historic grievance is allowed to count as individual merit. And so a perverse incentive is created: Weakness and victimization are rewarded over development. Better to be a troublemaker than to pursue excellence.

"Sonia Sotomayor is of the generation of minorities that came of age under the hegemony of this perverse incentive. For this generation, challenging and protesting were careerism itself. This is why middle- and upper middle-class minorities are often more militant than poor and working-class minorities. America's institutions -- universities, government agencies, the media and even corporations -- reward their grievance. Minority intellectuals, especially, have been rewarded for theories that justify grievance.

"And here we come to Judge Sotomayor's favorite such ingenuity: disparate impact. In the now celebrated Ricci case the city of New Haven, Conn., threw out a paper and pencil test that firefighters were required to take for promotion because so few minorities passed it. In other words, the test had a disparate and negative impact on minorities, so the lead plaintiff, Frank Ricci -- a white male with dyslexia who worked 10 hours a day to pass the test at a high level -- was effectively denied promotion because he was white. Judge Sotomayor supported the city's decision to throw out the test undoubtedly because of her commitment to disparate impact -- a concept that invariably makes whites accountable for minority mediocrity. . . ."