The "Racist" Card, Kim Jong Il: Still Nuts

We are in the middle of what would historically be a fairly slow news period in the world of politics. Congress has been on recess the past week and we are far away from any meaningful elections (there are Gubernatorial primiaries in New Jersey at the beginning of June, but the results are fairly well a foregone conclusion that Corzine will be renominated by the Democrats and the alliterative Chris Christie will get the nod on the GOP side -- the general election is a far more intriguing race.) But it has not been quiet.

On "Reverse Racism"
I have to admit, I'm a little surprised by the ferocity of the conservative assualt on Supreme Court Justice Designee Sonia Sotomayor. She is certainly a left-leaning jurist, but certainly no more so than Ruth Bader Ginsberg was at the time of her near unanimous approval by the Senate. Her case load has actually by and large been pretty mundane. She has a compelling personal story. There is no doubt that she will eventually be confirmed. So what's going on here?

First, let me comment on WHO is doing the hatcheting. The perspective of Newt Gingrich and Tom Tancredo is interesting only that it is inflammatory. These two have as much to do with whether Sotomayor gets confirmed as you or I do. They are certainly entitled to share their opinions, but it is worth note that almost no Senators are leveling the criticism and certainly no one from a moderate state or district for whom there could actually be electoral reprecussions. In short, only the furthest right is really leveling the criticism.

But let's take a look at it anyway.

(1) "She's a Reverse Racist"
This argument, made forcefully by Gingrich and Tancredo as well as Rush Limbaugh, is hinged on two points. First, the quote "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's start by doing what no one in the media has apparently bothered to do and provide the whole context of 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.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

Sounds a little different than jus the one clip you've heard, huh? If you actually read through it, it is clear to me that Sotomayor is talking about the value of diversity of EXPERIENCE. She explicitly points out that there have been many times that 9 white males have made the leap to put themselves in someone else's shoes, but (correctly in my view) theorizes that this is an extremely tough thing to do. She is making a pitch for diversity in a judigical branch that has historically had little. She says she HOPES that a wise latina woman with a specific set of experiences would use those to form better judgements than someone who has not had the benefit of those experiences.

Hardly a violently racist sentiment.

Newt, Rush, Tom and the gang say that if a white male had made such a statement, he would be instantly branded a racist. In context, the statement wouldn't really make much sense for a white male to make, given that there is no history of white males being excluded from the judiciary. I tried to think of a comparison that I could test, but I just can't.

Now, you are free to disagree with Sotomayor. Some believe that diversity is oversold, that 9 rational white males are ever bit as equipped to decide points of law and justice for all people of all races, just as well as a diverse court. I happen to disagree, but I can respect that point of view. I don't consider those people to necessarily be racists and I don't accept that I'm a racist for believing that there is valuing in having perspectives from people of different backgrounds on a court.

The second part of the "reverse racist" claim involves a case that she ruled on regarding the New Haven Fire Department. The New Haven department administered a test for promotions among their firefighters. When the tests were administered, no black applicants passed, while at least 20 white applicants passed it. The city decided to disregard the test results and issue no promotions. The white firefighters brought suit, claiming reverse discrimination.

Since, again, no one in the mainstream media has presented the actual legal context of this case, I'll give it a shot. The relevant laws to be interpreted are the series of Civil Rights Acts passed starting in the 60s and ending with the on signed into law by former President George H.W. Bush in 1991. The rules of the road are pretty simple:
(1) Any action that creates unequal impact between races is defacto discrimination
(2) Discrimination is illegal UNLESS it is necessary to enforce a bona fide requirement of the job

#1 means that if you test firefighters for promotion and only white applicants pass, it is, by legal definition, discrimination. #2 means that since we have established that the firefighter test was discriminatory, the onus is on the white firefighters to prove that the things that the test tested were actually necessary skills for the promotion in question.

Let me give you a few examples (one real, one constructed) to illustrate how these cases are decided:
(1) Griggs vs. Duke Energy, 1971
Duke Energy had a merit-based system for hiring line workers that required a high school diploma and a minimum score on an IQ test. As black high school graduation rates were significantly lower than those of whites, this had the effect of creating a mostly white work force. The Supreme Court ruled in this landmark case that a high school diploma was not a key skill requirement to be a line worker at Duke and therefore the discrimination was illegal.
(2) Hiring Auto Mechanics
You are an auto repair shop, hiring mechanics to work on cars with major malfunctions. You require a certification from an accredited auto repair training program for hiring. This will no doubt be discriminatory as far fewer women graduate from these programs than men. Likely you would win a court case and the discrimination would be excused as having been trained in auto repair is clearly a reasonable job requirement to do the job of a mechanic.

So where does the New Haven case fall on this spectrum? I'm not sure, actually. It probably falls somewhere in between. I don't claim to know what the relevant requirements are to be a Captain in a fire department or what the contents of the test were. The case is before the supreme court and they will ultimately make a ruling which may overturn Sotomayor's lower court ruling if they feel the firefighters have demonstrated the relevance of the test. But given this context, one can certainly understand Sotomayor's ruling and the New Haven Fire Department's holding up the promotions. This is a complicated judgement, but you can make either legal ruling and not be a racist.

The final criticism of Sotomayor surrounds a Duke University panel that she was on, during which she said that the appeals court is "where policy is made".

Since I couldn't find a transcript to give you her full remarks, I invite you to watch them at the link below:
http://www.youtube.com/watch?v=ug-qUvI6WFo

Although she clearly says on the video that she is not advocating the Court of Appeals making law, I can see where this would give conservatives pause. It certainly appears that there is a nod and a wink about judicial activism here.

But can the party that brough us Bush vs. Gore, the greatest act of judicial activism of our lifetimes really have credible outrage on this topic?

My prediction remains unchanged: Sotomayor will be confirmed with around 70 votes.

North Korean Nukes
North Korea, despite urgings from the entire world (including China!) has gone ahead with a second, larger nuclear test. Kim Jong Il is clearly taunting the rest of the world. They have moved ahead with these tests, in spite of international pressure, because the world has not presented them with any clear consequences to moving ahead. They are already isolated in the world, so there is no trade for the U.S. to cut off. We certainly aren't going to wage war as our forces are already stretched thin and going after nuclear powers is generally a bad idea to begin with.

So what can we do?

#1 Use our remaining economic leverage
Get North Korea cut out of the world banking system. Letting them into international financial markets was a huge mistake of this past decade and we need to cut them off once and for all.
#2 Negotiate with the Chinese on restricting Korean trade
The country most important to North Korea's economy is China as it trades many basic staples with the North Koreans. Getting them cut off would bring the North Koreans back to the table.
#3 State uneqivocoal support for South Korea and Japan
Make it crystal clear that we will defend their interests and the North Koreans had better not threaten them

This is a thorny issue. I'm not sure the suggestions above will solve the problem, but they may help to contain it. It's a dangerous world and we don't need crazies like Mr. Kim Jong holding long-range nukes.

One thing we don't need to do is resurrect the waste of money missle defense system. That program has been a sinkhole of defense cash for over two decades now. It isn't going to solve the North Korean problem. Even if it somehow could work (it has been an abject failure so far), you can't shoot nukes down in the air without devastating consequences. The key is to stop the North Koreans from getting long range nukes, not explode them over cities once they do.

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