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THURSDAY, JUNE 4, 2009

The murk at the top: In this morning’s New York Times, Neil Lewis considers an important question—it’s just not clear what the question is. This is the way big reporters reason at the top of our press corps.

Lewis starts with a now-famous semi-statement by Sandra Day O’Connor. On the bench, will a wise old woman and a wise old man reach the same judgments? As Lewis starts, he cites O’Connor’s famous remark—then turns to a recent semi-demurral by Ruth Bader Ginsburg:

LEWIS (6/4/09): Sandra Day O’Connor, the first woman to serve on the Supreme Court, is often quoted as saying that a wise female judge will come to the same conclusion as a wise male judge.

But the opposing argument was bolstered forcefully in April by Justice Ruth Bader Ginsburg, currently the court’s only woman, in a case involving Savana Redding, a 13-year-old girl who had been strip-searched at school by the authorities on suspicion of hiding some ibuprofen pills that may be bought over-the-counter.

“They have never been a 13-year-old girl,” Justice Ginsburg said of her eight male colleagues, several of whom had suggested during oral argument that they were not troubled by the search.

“It’s a very sensitive age for a girl,” Justice Ginsburg went on to say in an interview with USA Today. “I didn’t think that my colleagues, some of them, quite understood.”

Ginsburg seems to feel that some of her colleagues failed to appreciate the depth of harm that was done in the case. A judge has to make such assessments in deciding certain types of cases.

Starting with this framework, Lewis discusses an important question—but it’s quite unclear what the question is. We marveled at the rolling incoherence the Timesman achieved, starting with this passage:

LEWIS: Judge Sotomayor herself raised the issue of personal experience in judging and engendered mixed reviews recently for a speech she gave in 2001 in which she said, “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 the idea that women may inherently view the law differently on occasion is something that troubles even several female judges who believe it may be so.

Huh? Does Sotomayor’s statement imply that “women may inherently view the law differently on occasion?” Do we even know what that murky phrase means? As he continues, Lewis adds to the confusion:

LEWIS (continuing directly): Judge Judith S. Kaye, who was the chief judge of New York State for 16 years until her recent retirement, said she had long avoided engaging others on the question. “I struggled with it for the 25 years I served as a judge,” Judge Kaye said.

But she said she had ultimately come to terms with defending the idea that women judges will, at times, see things differently. “To defend the idea that women come out different on some cases, I just feel it,” Judge Kaye said.

“I feel it to the depths of my soul,” she added, because a woman’s experiences are “just different.”

Of course, women judges do “come out differently on some issues;” they do “at times, see things differently.” In individual cases, this is just obvious—and as Lewis notes near the end of his piece, empirical studies seem to show a tendency for women and men to judge differently in certain types of cases. Kaye feels something to the depths of her soul—but in Lewis’ report, it remains unclear what it is. In our view, things only get murkier as he proceeds from there:

LEWIS (continuing directly): Lawrence Robbins, a veteran litigator in Washington, disagreed, saying, “Any person in the real world should be highly reluctant to make these broad generalizations.”

While Mr. Robbins said it was indisputable that people brought different experiences to the bench, “the role of a judge requires that the person who holds that position recognizes those dispositions that come from personal experience and tries to surmount them.”

“Giving vent to the bias of one’s own experiences would lead to a wrong result, not a proper one,” Mr. Robbins said.

Robbins wants to avoid certain “broad generalizations”—but it’s not clear what those generalizations are. Meanwhile, he’s soon quoted saying that a judge should avoid “giving vent to the bias of one’s own experiences.” Surely, everyone would tend to agree with that statement, but it begs the central question—the question of who is working from a “bias” in some particular matter. Who had a “bias” in the case of the strip search? Who had an accurate understanding? Did Ginsburg have a “bias”—or did her male colleagues? Of course, we want to avoid acting on “bias.” But that’s a truism. It begs the question at hand.

Empirical studies seem to show that men and women judges do rule differently, to some extent, in discrimination cases. (When he cites this fact, Lewis fails to say how great that extent is.) That is an empirical fact. Beyond that, what question is Lewis discussing today? We don’t have the slightest idea after sifting his murky work.

Breyer and Thomas, together at last: In her interview about that strip search, Ginsburg named two famous names:

LEWIS: Justice Steven G. Breyer was one of several on the court who suggested during oral argument that he was untroubled by the search. Justice Breyer said that when he was that age, boys stripped down to their underwear in the locker room and “people did stick things in my underwear,” a comment that produced hearty laughter from Justice Thomas.

Justice Ginsburg seemed annoyed, saying that “it wasn’t just that they were stripped to their underwear,” explaining that Ms. Redding was made to stretch out her bra and underpants for two female school officials to look inside.

If there was any doubt that she was seething over the matter, Justice Ginsburg took the extraordinary step two weeks later of discussing the case with a reporter even though the case was still pending.

Who was right here? Who was wrong? Who was in the grip of a “bias?” In the end, these are always matters of judgment. Our judgment? We’d guess the Court stood to gain in this case from access to Ginsburg’s perspective.

Ginsburg/O’Connor, together/apart: On the day she was nominated to the Court, Ginsburg said the following as part of her formal Rose Garden statement:

GINSBURG (8/10/93): Justice Sandra Day O'Connor recently quoted Oklahoma Supreme Court Jeanne Coyne, who was asked, "Do women judges decide cases differently by virtue of being women?" Justice Coyne replied that, in her experience, a wise old man and a wise old woman reach the same conclusion.

(Laughter.)

I agree, but I also have no doubt that women, like persons of different racial groups and ethnic origins, contribute what a fine jurist, the last Fifth Circuit Judge Alvin Rubin, described as a distinctive medley of views influenced by differences in biology, cultural impact, and life experience. A system of justice will be the richer for diversity of background and experience. It will be the poorer in terms of appreciating what is at stake and the impact of its judgments if all of its members are cast from the same mold/

Recall that reference to “biology” if you read what we’ve written below.

Special report: Broken trail!

Be sure to read each thrilling installment: Your culture is off on a long, broken trail. Why not peruse each installment?

PART 1: Gregory tried to put things in context—and failed. See THE DAILY HOWLER, 6/1/09.

PART 2: Stephanopoulos spent the day correcting his panel’s botched facts. See THE DAILY HOWLER, 6/2/09.

PART 3: A thought popped into Taylor’s head—and nobody bothered to fact-check. See THE DAILY HOWLER, 6/3/09.

In Part 4, we ponder the way we’ve been led down a long, broken trail.

PART 4—DEEPLY STUPID: What did Sonia Sotomayor mean by her now-famous 32-word remark—a statement which has been lovingly plucked from a long career on the bench? We’re not sure, but we think Uncle Gene muses constructively in his new Salon column:

LYONS (6/4/09): During an academic conference in 2001, Sotomayor spoke about racial discrimination and the law, uttering the now-famous 32 words: "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.”

Interestingly, she never said what that conclusion should be. Indeed, as an appeals court judge, Sotomayor sided with the defendant in race-discrimination lawsuits 80 percent of the time. Which could mean that one thing a wise Latina woman knows is how often people blame bigotry for personal failures. Or how hard such cases are to prove.

That could be part of what she meant. Lyons was sufficiently decent (and wise) to place that lone remark in the context of Sotomayor’s career on the bench—in the context of her actual rulings. Ultimately, we prefer to let Sotomayor speak for herself, which she’ll surely be asked to do in her confirmation hearings. It now seems that Sotomayor will say that her 32 words were imperfectly chosen. We’d be inclined to agree with that. If we had been editing that particular speech, we might have suggested this:

I would hope that a wise Latina woman, with the richness of her experiences, might bring perspectives, in certain cases, which will deepen a court’s understanding.

Sotomayor can speak for herself. We might have spoken that way.

Ultimately, it’s silly to stage major hissy fits over single statements from long careers. But this is a familiar part of our current broken culture. Adepts of the brain-dead Cult of the Offhand Comment seem to love such silly procedures. They love to seize on some imperfect comment, then scream and howl and bellow and moan about the impending death of the world.

So it has gone in the past several decades—a period in which this stupid practice has literally changed world history. Al Gore said he invented the Internet? Well no, he actually didn’t say that. But a powerful Cult insisted he did, for two years. Obama spoke in Cairo today, addressing part of the damage.

Your culture has been crazy for decades—and that’s the term Paul Krugman used on Sunday’s This Week. Before reviewing his accurate statements (tomorrow), let’s return to last Friday’s column by Charles Krauthammer.

How inept is your mainstream press corps? How broken are its intellectual norms? In his column, Krauthammer pimped a five-month-old claim by the hapless Stuart Taylor—a claim no one had bothered to fact-check (see THE DAILY HOWLER, 6/3/09). And then too—oh please, give us a break!—Krauthammer churned this blather:

KRAUTHAMMER (5/29/09): Two things are sure to happen this summer: The Supreme Court will overturn Sotomayor's panel's ruling [on the New Haven/Ricci case]. And, barring some huge hidden scandal, Sotomayor will be elevated to that same Supreme Court.

What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks. No "temperament" insinuations. Nothing ad hominem. The argument should be elevated, respectful and entirely about judicial philosophy.

On the Ricci case. And on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge. They perfectly reflect the Democrats' enthrallment with identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.

Krauthammer offers some good advice here: Principled conservatives should try to “illuminate Sotomayor’s views.” And then, he shows that his broken elite is no longer up to this basic challenge. In the very next paragraph, Krauthammer claims to state one of those views. According to Charles, Sotomayor “believes her Latina physiology” grants her “superior wisdom” as compared to that of “a white male judge.” So it goes as Charles implores principled people to “illuminate her views.”

Good lord! Does Sotomayor really believe that her “Latina physiology” gives her superior wisdom? We’d be inclined to regard that as a strange view—but has Sotomayor ever said that? We’ll let you judge that one yourself. Charles seems to refer to a single, glancing reference in Sotomayor’s now-famous speech:

SOTOMAYOR (2001): 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.

Can anybody read around here? In that passage, Sotomayor refers to differences of national origins and gender. She doesn’t state a final view about the role that may be played by physiological differences between groups of people. But uh-oh! Conservatives typically do assert that physiological differences may affect the differing mental styles of men and women (on average).

Such a view isn’t facially crazy (see Ruth Bader Ginsburg’s statement above). From this one comment, it isn’t clear what Sotomayor thinks about it. But you know how our “press corps” works! Bowing low to the rules of a powerful Cult, Krauthammer took a familiar tack: He adopted the strangest possible interpretation of Sotomayor’s fleeting comment, then told the world it’s what the judge thinks. This Cult has behaved this way for decades. (Al Gore said he discovered Love Canal!) And their broken conduct continues today—for example, in this recent Post on-line discussion:

COMMENTER (6/1/09) Mr, Carlson, sigh. After I just commended you for being civil, you now call one of Judge Sotomayor's comments "stupid." Just as the right did with Pastor Wright, you all are taking her quote out of context. She was merely saying that having experienced discrimination herself, that she would have a better perspective on discrimination than white males. She NEVER said she was "better" than white males.

ANA MARIE COX: I'm gonna defend Tucker's right to call her comment "stupid," if only because I think we can all agree that her life would be easier if she had made her point using a different set of words. Words more like yours, Sigh.

That said, I do think what you say here IS what she meant, and the only criticism she deserves for not being especially far-sighted in how her words might be interpreted. Which is, when you think about it, an important skill in a judge.

TUCKER CARLSON: Have you read her comments? I have, and in context. She said that her "physiology" as a Latina gave her wisdom superior to that of the average white man. Which means....what? Latinas have bigger brains?

I think "stupid" was a charitable description, since it suggests her wording was unintentional. If that's precisely what she meant to say, she's a racist kook and ought to step down from the bench right now. But I'm giving her every benefit of every doubt.

Thanks God we had Ana Marie Cox (actual name) “on hand” to help sort this problem out!

Let’s review Carlson’s conduct:

Carlson had read Sotomayor’s comments—“in context,” no less. And sure enough! Bowing low to the laws of a powerful cult, he adopted the dumbest possible interpretation of what the judge had said.

But this is the way your discourse has worked over the past several decades. In the past decade, they used this power to change the world’s history. (Liberals had run off and hid in the woods, and rarely voiced a peep of protest.) But the sheer stupidity of this cult remains a threat to your nation’s future.

We’ve been on a broken trail over the past several decades. Strange adepts of a broken-souled cult have been in control of our discourse. On Sunday, Krugman spoke accurately about their recent conduct. But these adepts are deeply unintelligent; they comprise our dumbest elite.

They’ve led us down a long, broken trail. It’s not clear we’ll find our way back.