Ed Meese, he of the “Experts Agree” T-Shirt, is back in the news today for his orchestration of the opposition to Sotomayor's Supreme Court nomination.
This news comes on the heels of the first possibly significant blot on her otherwise sterling record: it seems Sotomayor is a member of an all-woman club, the Belizean Grove. This is an issue because the Code of Judicial Conduct bans memberships in groups that practice invidious discrimination. The defense that discrimination by the relatively less powerful against the more powerful is not “invidious” cuts little ice with me. The defense that no men have actually attempted to join is a closer call. It's probably true, so it's technically sufficient. But it's also the same defense used by men-only and whites-only and {fill in the blank}-only clubs for decades, as they sat secure in the knowledge that no one would bother trying given formal or informal rules limiting membership.
So, Ed Meese's intervention comes at a very fortunate time for Sotomayor.
They probably wish she was an immigrant so they call her a criminal and can kick her out: http://lawblog.legalmatch.com/2009/05/14/most-removed-immigrants-not-criminals-data-shows/
You say:
The defense that discrimination by the relatively less powerful against the more powerful is not invidious cuts little ice with me.
I wonder if you could elaborate on this. You’ve no doubt heard the arguments for the position you reject. But just so you have something to respond to, let me put an argument on the table
Consider the situation of white only clubs in the 1950’s. These clubs were ones where people in positions of power would meet and often discuss business matters. Even when they didn’t discuss business, their friendly associations often carried over into business situations. It was the classic old boys network, and it had the effect, and, of course, often the intention as well, of excluding people of color. This was, I’m sure you’ll agree, a bad thing, and deeply unfair. People of color were already at a great disadvantage in the world of business and politics (and most everything else), and these clubs had the effect of further entrenching that disadvantage. When people who have an unfair advantage over others act in ways to further entrench that unfair advantage, they act in ways which are just plain wrong.
Now when people of color, in these situations, formed clubs of their own, clubs which excluded whites, and used these clubs to form business and political connections, the effect was quite different. They were not acting in ways which secured unfair advantages. Rather, they were acting in ways which were designed to secure for them some of the benefits which white people already had, even if they could not begin to secure these benefits to the same degree. They were acting in ways which would move things in the direction of leveling the playing field, even if only marginally. And it seems to me that doing this in the face of horribly unfair treatment is not itself unfair. Far from acting in ways to further cement unfair advantages, these clubs involved acting in ways that helped, in some small measure, to undo unfair advantages. There’s nothing wrong with that at all.
Now do you believe that the situation with women in the business and political world is importantly different? Or do you disagree with the suggestions I’ve made above? I’d like to hear more about why it is that this kind of argument “cuts little ice” with you.
I most certainly do believe that the status of women in the US corporate world is substantively and meaningfully different from that of black people in the US in 50s. We had segregated water fountains in the 50s. Blacks were routinely denied the vote. There was systematic discrimination in work, accommodation, education. Some of it was backed by law.
The status of women today is far far better. Other than in the military, where certain jobs remain off limits, there is no legal discrimination against women, and indeed in many cases the discrimination is illegal. There is of course a lot of discrimination, but nowhere on the scale experienced by black people in the 50s. There is a ‘glass ceiling’ but it’s hard to say that a Second Circuit Judge — one of the top jobs in the legal world — has been held back by it. To the extent that she’s then mentoring by gender, I think there is an issue there.
There remain a bunch of all male clubs, and they are probably powerful, e.g. Skull and Bones, or the Bohemian Grove (whose name the Belezian was doubtlessly playing off). But I doubt they are as uniquely powerful as they were. Places like Davros (or TED), are competing and integrated power centers. Even so I accept there’s an argument for retaliatory, or defensive, discrimination being non-invidious. But it’s of the ‘two wrongs make a right’ variety. That’s possible, but not cheerful, and whether it’s what the Code of Judicial Conduct has in mind is even more debatable.
I suppose I think all discrimination in membership in professional societies is presumptively invidious. The argument that it is reactive, compensatory, is not ridiculous, and may carry the day politically in this case. Yet, I resist it, since the endgame is a balkanized society. As regards my judges, I would prefer that they belong to no discriminatory organizations, however arguably benign.
Let me try to clarify my previous remarks.
Of course I recognize that the situation of women today is not remotely as bad as the situation of blacks in the United States in the 1950’s. I didn’t mean to suggest that it was. At the same time, I don’t think that one can reasonably believe that there is a level playing field when it comes to the situation of women vs. men in the United States right now. And pointing out that Sotomayor is a Circuit Court Judge, after all, does no more to show that women and men have achieved parity than pointing out that Thurgood Marshall was appointed to the Supreme Court in the late 1960’s does to suggest that African Americans had achieved full parity with whites at that point. What one wants to look at here is some real data: for example, the percentage of women on the Supreme Court, or in the U S House or the Senate, or in corporate boardrooms. And surely the data will bear out the judgment, on which I meant to be relying, not that women now have it as bad as blacks did in the 1950’s, but rather that they have not remotely achieved parity with men. And more than this: I do assume, as well, that this lack of parity is due in large part to unfair treatment and unequal opportunities.
In my example in the previous post, I suggested that when African Americans would form clubs in which whites were not welcome in order to help level the playing field, what they were doing was not in any way wrong. You refer to this as “retaliatory …discrimination,” and then suggest that any defense of this practice would be of the “‘two wrongs make a right’ variety.” But my defense of the practice was not of that variety at all. I argued that when one group which has unfair advantages over another uses their position of power to further entrench those advantages, they act wrongly. But when a group which has been unfairly disadvantaged acts so as to minimize those unfair disadvantages, they do not act wrongly. I may be mistaken in my argument here, but no part of it involved suggesting that two wrongs make a right.
You suggest that even the kind of practice I would endorse, in the case of African Americans and of women, raises worries about a balkanized society and you would prefer to see nothing but clubs which are insensitive to distinction of race and gender. I share, with only slight reservations, your ideals of a race and gender blind society. But we don’t live in such a society, and our moral obligations, it seems to me, depend here on not only the histories of unfair treatment, but the continuing disadvantages which unfair treatment perpetuates. We are not morally obligated to act as if we live in a race and gender blind society when, in fact, we do not.
One last point. You mention that Sotomayor is “mentoring by gender” and, you suggest, “there’s an issue there”. Given the great disparities that exist between men and women, and the extent to which these are a product of unfair treatment, it seems to me that those, like Sotomayor, who have been able to succeed in spite of this would do well to help other similarly situated. The idea that one owes special help to those most unfairly disadvantaged is not in way like the idea that one may go out of one’s way to help those like oneself (in my case, white and male) however great their advantages, and however unfairly those advantages may have been achieved and sustained.
Thank you for that explanation.
Let me redirect the conversation a little: Whatever the merits to those arguments may be, the question you do not (yet) address explicitly is to what extent those arguments apply to judges. That issue has two levels, the moral and the legal. For the moral argument one might say that judges stand in no different a position than other people (your implicit position?), but I don’t think that’s intuitively obvious — in fact, I think it’s not correct. Instead, I think they have a heightened duty to be and to be seen to be nondiscriminatory in any fashion.
As regards the Code, I don’t know what the best reading is, or if there are extrinsic and relevant aids to interpretation, but I’ll wager they didn’t consider this set of circumstances. I’d rather the term were interpreted to exclude all discriminatory professional membership associations. I realty don’t want judges who spent years at the Bohemian Grove. And if the price of that is not having judges who dined at the far less troubling Belezian Grove, maybe that’s a price one (must?) can pay.
Those are good questions, and I haven’t really thought about them. Indeed, I don’t know the law here at all, and I’m a philosopher and not a lawyer, so my opinion on that wouldn’t be worth much if I did. The idea that judges have not only greater legal responsibilities, but, also, in virtue of their positions, greater moral responsibilities strikes me as quite plausible. But the real question here, of course, is just what those greater moral responsibilities are. I am strongly moved by the idea that people in positions of authority have a special obligation to help those who have suffered great and unfair disadvatages. I think that when people in such positions extend themselves in the way that membership in the Belizean Grove is designed to achieve, they are not only failing to act badly, but they are actually behaving in a way which is highly praiseworthy. This kind of membership, when it is part of what one does and not the whole of it, seems to me something that we should not be criticizing. And thus I would think that the higher level of scrutiny idea might not lend itself to banning this sort of membership for judges.
Although I am moved by the appeal to “even the appearance of impropriety” in contexts like this, I also worry that too often the effect of using such concerns to eliminate this kind of membership for, say, judges, makes it that much harder to move toward an equal playing field. All too often what appears to be improper only appears so because the case has not been adequately thought through, and that should not provide any kind of reason at all.
All the same: as I said, I haven’t thought about the issues you raised before you raised them, so I’m not terribly confident of any of this. And these seem like important questions to be asking.