Consistency Check


Should we presume that the race or ethnic heritage of a judge is likely to affect that judge’s rulings?

Donald Trump thinks so. So does Supreme Court Justice Sonia Sotomayor, who says this:

I, for one, do think there is a disadvantage from having (five) Catholics, three Jews, everyone from an Ivy League school.

A different perspective can permit you to more fully understand the arguments that are before you.

And:

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.

I have three questions for my readers:

  1. Is Trump’s opinion an instance of despicable racism?
  2. Is Sotomayor’s opinion an instance of despicable racism?
  3. Did you give the same answers to questions 1 and 2?
  4. If your answer to question 3 was “No”, do you want to rethink this?

Click here to comment or read others’ comments.

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43 Responses to “Consistency Check”


  1. 1 1 Jason Hartley

    1. Yes.
    2. No.
    3. No.
    4. No. She is saying when you have a group of justices with different viewpoints, a better (presumably fairer) outcome is more likely due to a fuller understanding of the issue at hand. Trump says the judge should recuse himself because he is a Mexican so he is going to be biased, even though there is no evidence to support that claim. She doesn’t disqualify judges based on anything, she just believes that a group of judges benefits from diversity.

  2. 2 2 Bret Sikkink

    I see the point that you are making, and I did re-think it. However, I still feel that they are different cases (no pun intended). In #1, Trump is implying that 100% of the decision-making power in a given case is corrupted and untrustworthy. In the second case, Sotomayor is saying that a diversity of opinions can cancel out individual biases, leading the group to be less prejudiced (than 100%).

    They do both have academic evidence on their side. In the first case, it seems to be self-evident that we all carry biases and potential prejudices. However, you don’t just get to play that card when you are the one at the defense table. I haven’t seen years of Trump proposals for reforming the justice system, and it’s obviously self-serving for him to bring it up now. There is more room for hasty generalization and motivated reasoning.
    Sotomayor can also cite some evidence that diversity of opinions does increase the rationality of decision-making, although I think it’s more mixed than many would hope. But she’s not saying that an individual specific white man who is currently threatening her is biased and therefore untrustworthy. Rather, she’s claiming (in Hansonian far mode) that the best way for a group – in this case a very powerful and privileged group with widespread influence – should take a step back and consider the best ways to respond to the variety and diversity of a culture 300 million strong.

    Perhaps her argument is ultimately based in her emotional response to the experiences and events of her life, but at least there is decades of evidence that she is judging from the perspective of someone who has nevertheless risen to the highest position in her field and is offering her honest opinion on how to improve it on the margins. Donald Trump is merely trying avoid a potential business loss in the current news cycle and is not offering a way forward for society, the Court and America, but a way out of trouble for himself.

    So I answer as follows:
    1. It is self-serving rhetoric if he doesn’t truly hold this view, and if he does hold this view it shows a contempt for diversity that will not serve America well in the long run if he is elected to higher office. I don’t know if it’s racism, but it should be unsettling.
    2. This is an appeal to liberty for anyone of with the qualifications to hold a higher office in America, a principle of democracy and a value held deeply in this country. I don’t know if it’s racism, but should give us pause to think about how we want to adjudicate disputes in a multicultural landscape.

  3. 3 3 Dan

    1. Yes.
    2. No.
    3. No.
    4. No.

    It’s like saying i) you, being an educated affluent white person, only care about rich white people and are racist against poor blacks, vs ii) being a rich white guy, you cannot relate to the experiences of a poor black person. Whether that should be relevant to someone being a judge (not relevant in my opinion) is another matter.

  4. 4 4 Nathan

    1. Yes
    2. No
    3. No
    4. No

    The suggestion that people of different ethic, socio-economic, or educational backgrounds are likely to have different life experiences and perspectives is, if not self-evidently true, at least not racist.

    Even if two different judges would decide the same case differently because of their differing perspectives, it doesn’t follow that either of the judges is biased.

    A judge is biased if he is incapable of deciding a case impartially. The suggestion that judges who are Muslims or Mexicans are incapable of acting impartially is despicably racist.

  5. 5 5 iceman

    1) If he is suggesting that someone cannot be a competent or fair judge based on their race etc., then yes; if he is rather suggesting someone can have a predisposition or conflict of interest *in a particular case*, that seems like something different.
    2) If she is talking about the benefits of diversity on the process and end product *for the court as a whole*, then no. However (@Jason) there is some (repeated) evidence that she rather (or also) believes some judges cannot be as competent or fair *based on their race* etc., e.g.: “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.”
    3) Depends on the interpretations of 1 and 2 but would hopefully be consistent.

    @Dan I’m not sure what you mean by not relevant that judges be able to deal with everyone even-handedly, including rich white guys? That’s why Sotomayor’s quote in 2 is puzzling (and concerning).

  6. 6 6 Thomas

    1. No. Trump is suggesting that the Judge Curiel, who is of Mexican descent, might be take a negative view of Trump’s case because of Trump’s anti-immigrant statements. That’s not an unreasonable stance, though Trump seems to have been unduly vociferous about it — probably in an attempt to build support from the same persons who applaud his anti-immigrant stance.
    2. Yes. Sotomayor is suggesting that the interpretation of the law varies along racial-ethic-religious-class lines. That’s a strange position for a judge to take. It smacks of a premature apology for judicial positions favoring certain kinds of defendants or litigants — perhaps along racial-ethnic lines.
    3. Yes.
    4. No. I stand on my responses to 1 and 2.

  7. 7 7 David R. Henderson

    You did get me thinking and these are my tentative responses:
    1.Probably not.
    2.Probably not.
    3. Yes.

  8. 8 8 Jason Hartley

    @iceman that wasn’t the quote, but definitely a good point. I don’t think, however, she is saying that we should disqualify a judge because he is white, only that a wise latina would be better, she hopes, more often than not. Trump, on the other hand, clearly wants to disqualify judges solely based on their “heritage” or religion.

  9. 9 9 Steve Landsburg

    Iceman (#5): I’ve edited to include the quote you brought up.

  10. 10 10 Sub Specie Æternitatis

    1. Yes.
    2. Yes.
    3. Yes.
    4. N/A.

  11. 11 11 Steve Landsburg

    Sub Specie Aeternitatis (#10): My answers exactly.

  12. 12 12 Bret Sikkink

    Based on the Iceman quote, I would respond differently. You didn’t ask if Donald Trump and/or Sotomayor were racist in all cases, it was about a particular opinion. In the original case, I stand by my argument above. (See questions 1 and 2; “opinion in this instance”). In the spirit of ideological fairness, or at least the appearance of it, you should add another incendiary Trump quote along the same lines but arguably worse or more blatant. That’s what you’ve done to Sotomayor, so be equitable and include more context on the other side as well. Don’t change the goalposts on the home field and claim you have a better kicker.

  13. 13 13 David J

    Yes
    Yes
    Yes
    N/A

    I was deeply troubled by Sotomayor’s racist, sexist, classist, and religiously prejudiced remarks. I don’t know why those comments were not called out at the time.

  14. 14 14 Pete

    Am I on crazy pills? I think a more extreme example would better illustrate my confusion:

    Let’s say Trump was a klansman and thought that a black judge would have a hard time treating him impartially. Too bad for him being a monster. He might be wrong in his prior actions that got him here (and by “may,” I mean “is”). But that doesn’t mean that his statement about his current predicament is racist.

    I think that it’s too bad for him. His judge doesn’t seem to have any problems due to Trump’s past statements. We don’t get to eliminate judges because they descend from groups that we disparage. I also don’t see why an American. Of Mexican decent would be especially sensitive to Trump’s statements; I think most Americans are extremely offended by them. But as wrong as I find hi to be in about every aspect of this, I do not see how Trump’s questioning of the judge’s impartiality due to Trump’s xenophobia is racist.

    All that being said,
    1. No.
    2. Yes
    3. No
    4. Trump’s an idiot, but he’s right that he has disparaged people a bit more similar to his judge than to most. Justice Sotomayor is wrong, in my idealistic worldview. Mr. Sikkink’s first paragraph, however, is a very well put reason for me to second guess this.

  15. 15 15 Roger

    1. No
    2. Yes

    Trump’s complaint is about particular rulings in a particular case. It is not just about the heritage. The judge is affiliated with Trummp-hating groups. Yes, that is enuf reason to suspect bias.

  16. 16 16 Toby

    1. No
    2. No
    3. Yes

    1. Trump did not say that because the judge is Mexican-American he is less good of a judge in general. He said that he is biased the same way that an African-American judge could be towards a member of the KKK. This is not a racist statement even though the statement might have come from a man who is racist.

    2. Similarly, the statement by Sotomayor is not racist. A Latino woman will probably have had different life experiences because she is a Latina. This is not because of her being a Latina, but because of individuals treating other individuals differently based on their sex, creed or ethnicity. Noting that does not make one a racist. Whether the court is helped or harmed by a diversity of experiences seems to be another question entirely.

  17. 17 17 Advo

    Context, guys.
    Has anyone read the context for Sotomayor’s quote?
    What follows is this:

    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.

  18. 18 18 acarraro

    Sotomayor compares an experienced and wise latina woman with an inexperienced white man in the quote. Why do you ignore the experience (or the sex for that matter) part altogether?

    Saying that experience matters more than sex or race doesn’t sound either sexist or racist. To argue that she is racist you have to delete the experience qualification from her statement. She spends much more time describing the experience part than either of the other details, so it seems reasonable to see that part as the main point she is trying to make.

    I also think there is a world of difference between saying that a specific person is biased and arguing that judges in general will be influenced by their race and experience. The second is a statement which is more or less self-evidently true. Judges should try to be impartial, but they are human and they don’t entirely control their own behaviour. They are not perfect and the system should be built to help them be as impartial as possible. To say that a specific judge is unjust with no evidence is just wrong. It’s one thing to say that crimes are likely to be committed, and another to say that one specific person has committed a crime without evidence.

    There is some evidence that there is a racial component to arrest and conviction. Should we convict a percentage of policeman chosen at random since we can prove that a percentage of policeman behave unlawfully? This is what Trump is doing by accusing a single judge without evidence in my opinion.

  19. 19 19 Advo

    Sotomayor’s statement isn’t nearly equivalent to Trump’s statement.

    Trump denied that a “Mexican judge” (really a US-born man with Mexican parents) would be able to judge impartially, despite the fact that the judge’s behaviour in this case apparently gives no indication of such bias.

    Sotomayor said nothing of the kind. She merely said that a “wise Latina” might, on average, make better decisions, because her experience enables her to understand the case better.

    Where the Supreme Court judges cases in which it’s the largely male, largely white power structure against the poor/weak/oppressed/some minority, that’s probably true – at least on average. It should be noted that if you ask a US jurist about the worst Supreme Court decisions, the one on top of the list are exactly those kinds of cases.

    In other words: Sotomayor believes that her life experiences would enable her to make a better decision in a case like Dred Scott vs. Sanford, Plessy vs. Ferguson or Korematsu vs. the US, whereas Trump believes (without any evidence in his specific case) that the “Mexican judge” will rule against him just because he, Trump, is a racist a*****.
    This isn’t the same.

  20. 20 20 Ted A

    1. Yes- he is discussing a position of the fact-finder, and trying to push the judge (who most conservative legal commentators have said is being “fair” in the rulings to date) off a case because it is showing that Trump U had serious elements of fraud.

    2. No – Sotomayor is discussing a position on a deliberative body, the Supreme Court, a team of legal scholars. It is a policy setting body, under the constraints set by the Congress or the Constitution.

    3. A foolish consistency is the hobgoblin of small minds.

  21. 21 21 Manfred

    To all of you who defend Sotomayor’s statements as quoted by Steve:
    It does not matter at all if she is Latina, Martian, African, from Pluto, or if she comes from a planet in Star Wars.
    What matters is the Constitution and the Law. Period. On any case in front of her (and the rest of the Honorable Justices, or any judge, for that matter), what do the Constitution and the Law say? That’s the ONLY relevant thing.
    Judges must rule on law, not on emotion or feelings or heritage or life experiences.
    But, in an Oprah-fied society like we live in now, apparently, what matters more are feelings and emotion, and not the Constitution and the Law. Proof of that is that so many of you in this blog defend her.

  22. 22 22 acarraro

    @Manfred
    Nobody is saying that judges shouldn’t rule based on constitution or the law. We just don’t believe there is always a clear answer to a question and that judges have to balance different facts to reach conclusions: there is inherently something subjective about a judge’s decision given that they work in an uncertain world where we can fully determine all facts with certainty.

    The law itself is complicated and not always exactly applicable.

    You seems to think that an impartial judge should always reach the same conclusion. I don’t think that’s the case. There are many cases in which it’s basically a guess. In such situation judges will be biased by their own experience.

  23. 23 23 Charles G. Phillips

    Comments can be both racist and fully justified. I understand why Trump would have reservations about the judge based on his affiliations and sympathies–so racist and justified. Sotomayor is not a defendant, assessing the character of the judge hearing her case, but, rather, a judge who is announcing to the country that her race will play a part in her analysis of the constitution–not racist per se, but totally disqualifying for a member of the Supreme Court. I understand Trump’s concern but fault his language (he could easily have characterized the judge as biased without calling him a Mexican); I understand Sotomayor’s embrace of identity politics and lament it.

  24. 24 24 iceman

    The idea of a “consistency check” is to make sure you’re not choosing a charitable interpretation for one but not the other.
    So for #1, the issue is the scope of his comments. Conflicts of interest and recusals happen all the time *in particular cases*, even if just to avoid the *appearance* of predisposition. If he has said other things about judicial bias that can add a broader perspective, please add them.
    For #2, the second quote is more on point — and it happens that in more recent years Sotomayor herself has attempted (not terribly effectively) to walk it back, so some of you are attempting to defend it more than she does.
    Perhaps that’s partly because on its face it doesn’t even really make sense (to me anyway).
    Everyone already agrees that bringing together different viewpoints can help a group reach better-informed decisions. [But @manfred’s caveat is well taken that here we are looking to apply constitutional principles, not market widgets.]
    Within that process, the white / male viewpoints would seemingly be of at least equal value (more if most cases involve such individuals?).
    So the issue is, “better more often than not” seems to suggest people of certain backgrounds are *generally* more (= others less) capable of being… fair? Informed? Wise? Caring? (Just searching for clues in the context Advo provided.) Even in (the majority of?) cases that do not directly tap into those particular heritages and experiences?
    And in that case, wouldn’t it be better NOT to have a diverse court, but rather fill it with all, say, wise Latinas?

  25. 25 25 Manfred

    @acarraro #20:
    I do agree with you fully that laws, and probably more often than not, are written “nebulously”, and that they are not clear. And I do agree with you that fair minded judges, in many cases, could reach different conclusions, given the facts and the law.
    But I do dispute that “life experiences”, be it as Latina, or Martian, or Klingon, should play any role. None. Judges should look at the facts presented, look at the Constitution and the Law, and give their utmost fair-minded interpretation. No Oprah, no feelings, no Latina crap, or Klingon sensitivity. If the law is not clear, or dubious, or nebulous, then the judge or judges should point this out in their decisions. But again, based on law, not on Latina feelings.

  26. 26 26 Roger

    I notice that the Trump-haters here do not quote what Trump actually said. His views are being misrepresented.

  27. 27 27 Manny

    Yes
    No
    No
    No, because I anticipated the question and thought first. Among other things, I looked up the Sotomayor quote, which turns out to have been specifically about discrimination cases. She continued:
    “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. …. nine white men on the Supreme Court…have done so on many occasions, 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.”
    That’s much sounder reasoning than Trump’s ‘logic’ that a judge of Mexican descent is treating him unfairly in a case that has nothing to do with Trump’s bigotry against illegal immigrants. That is a classic dual-loyalty charge, which is a central pillar of racist thought. Like the reasoning that Captain Alfred Dreyfus, being Jewish, would naturally betray France to advance supposedly pro-Jewry goals.
    If you can’t see the difference, I respectfully suggest that you may not yet have taken the “time and effort” needed to understand the situations Sotomayor was talking about.

  28. 28 28 Greg

    Okay. Let me be the one swimming against the stream.
    1. No. The judge belongs to a group that espouses boycotting all of Trump’s businesses. How can he possibly be viewed as unbiased. By the way, when did Mexican become a race?
    2. Yes. A judge is supposed to be impartial. She is admitting that her Hispanic heritage influences her decisions. Maybe it is a good thing or maybe it is a bad thing, I am not sure. Probably sometimes one, probably sometimes the other. Probably depends what side of the fence you are on.
    3. No
    4. They are different.

  29. 29 29 Will A

    @ Manny #27

    Thank you my friend for being one of the greatest truth tellers out there.

    Isn’t he great folks.

    Quoting something out of context. It’s a very dishonest thing for Slippery Steve to do.

  30. 30 30 Neil

    Greg@28

    What “group that espouses boycotting” does Judge Curiel “belong to”?

    Mexican is not a race, it is a nationality, but Judge Curiel was born in the United States and therefore he is an American. So why does Trump think, without evidence, that the judge is biased?

  31. 31 31 Roger

    @Neil: Curiel belongs to some group called “La Raza”, which means The Race.

    Trump does claim to have evidence of bias. The judge has made several rulings against Trump, that Trump considers unfair. Furthermore, Curiel has affiliations with groups opposed to Trump.

  32. 32 32 Jamie Whyte

    Bringing race into a discussion of judges looks racist. Those who claim it isn’t point to the virtues of diversity. But in most cases, there is only one judge; so diversity is irrelevant. And diversity is almost as irrelevant to the supreme court, with its nine judges. First, judges are unusual people, hardly likely to share the experiences of most members of their apparent “identity group”. Second, if we are to count race, gender, religion and sexuality as elements of identity, the supreme court would need a lot more than 9 judges to be appropriately diverse. Given the practical impossibility of guaranteeing decisions that benefit from judicial diversity, courts should perhaps simply enforce the law.

  33. 33 33 Greg

    Hispanic National Bar Association

  34. 34 34 Ken

    1. No.
    2. Yes.
    3. Yes.
    4. No.

    It is obvious non-whites do entangle their race with their politics. Whites are far more likely to not use race as a political identifier, thus are far more politically diverse than any other race in the US. If whites supported republicans to the extent that non-whites supported democrats, democrats would be a small minority at all levels of government. Noting that doesn’t make one racist any more than noting that blacks commit far more crime than whites.

    I think those that want the above answers to be

    1. No.
    2. Yes.
    3. Yes.
    4. Yes.

    or

    1. No.
    2. No.
    3. Yes.
    4. No.

    are simply trying to status signal that they aren’t committing the double unplusgood thought crime of noting political differences of whites and non-whites, and that the politics of non-whites, which are dominated by identity politics and collectivism, are incredibly problematic in a country founded on the principles of liberty.

  35. 35 35 iceman

    Manny — I don’t see the context as exclusively about discrimination cases – the SCOTUS ones she cited *moderate* her point, and she cited other types of cases as well (parental custody, search and seizure). The “different and better” line is simply a strange statement that’s out of place with her more mainstream message (as her supporters point out) – as I mentioned if taken seriously it doesn’t even promote diversity but rather 9 wise Latinas. As far as I know she’s never really explained it as other than as a poor choice of words while trying to inspire young (non-latina?) students. People are understandably left wondering if she just mis-wrote (many times?) or to what extent this might color her judicial world view.

    Will A you should read the whole speech too.

  36. 36 36 Ken B

    Roger gets it right in 26. Trump is being misquoted.

    I agree with Pete. Imagine that Trump’s judge is prejudiced for the reason he imagines. Is it really racism for Trump to think it or say it? No. Is it wildly implausible that he might be right? Not wildly I think. Steve cites another judge who seems to have such a prejudice. So is the only reasonable theory that Trump is being a racist? No. It’s possible, I think it unlikely though.

    She certainly is because she’s talking about an ethnic group not a person who happens to be in it.

  37. 37 37 Ken B

    Hmm. I just read 27. Subject to the proviso that Manny is telling the truth I change my answer on her. She is citing the experience of living as a Hispanic woman, not some inner essence. Very different.

    No.
    No.
    Yes.
    N/A.

  38. 38 38 Ken B

    Advo in 19 is misrepresenting what Trump said. And he is doing it inconsistently too. First he has Trump make a generalization: a “Mexican” judge cannot be fair. But Trump made no such general assertion. Then he faults Trump because this particular judge isn’t “Mexican.”
    Let’s address this last. I have a friend who describes herself as Belgian, one who describes himself as Swedish, and one who describes herself as Irish. All were born here. What appalling racists these people are! I can barely be civil to them so disgusted am I by this self-racism.
    I am no Trump fan. I am even less a fan of misrepresentation.

  39. 39 39 iceman

    Ken B 37 – but even then aren’t we still generalizing one group’s experiences as richer than others’…not just different but better…leading to superior wisdom

  40. 40 40 Floccina

    Democrats do it all the time when they stuff like: “We need an administration that looks like America”.

    Why except because whites are biased? They may be right though.

  41. 41 41 Jack PQ

    I’m late to the party, but I’d like to suggest translating the Sotomayor quotes into financial terms. The two quotes are quite different, I think.

    1.) “Your portfolio is poorly diversified, with only US and European stocks. The portfolio would benefit from including some Latin American stocks.” (This does not mean the Latin American stocks are better, indeed they could be worse; but they improve the portfolio’s overall performance.

    2.) “Latin American stocks should outperform US and European stocks.” Um, why? That’s a weird statement to make.

    So the first statement seems fine to me (though empirically dubious), but the second is similar to what Trump said.

  42. 42 42 Ken B

    Iceman 39
    Not if you read her as referring to the experience in question: suffering discrimination. The emphasis being on her experience not her inner essence. I have heard Catholic marriage counselors criticized because a priest won’t have any experience of sex or marriage, but Protestant ministers will for instance. Which apart from naïveté seems a legitimate claim. I certainly don’t see that claim as evidence of anti Catholic bigotry.

  43. 43 43 iceman

    JackPQ – A fair analogy. The weird statement isn’t “taken” out of context, it IS out of context – with the rest of her comments, and with any intelligible conception of the benefits of diversity. Which makes me hope she’s sincere when she walks it back. Your final conclusion also could differ if Trump’s statement is more analogous to “this particular bond does not fit well in this portfolio.”

    Ken B – she cites other types of cases too, but I’m more interested in her logic than attributing prejudice: how exactly do the benefits of diversity apply here? As Jamie Whyte notes we’re generally dealing with single judges. Assuming they can’t overcome their biases, is there a reason it’s obviously better to have experiences that make one more sensitive to plaintiffs or defendants? Do we get more biased decisions if all the judges are predisposed against 20% of the population, or 80% of judges predisposed against 20% of the population and 20% predisposed against 80% of the population?
    What’s a poor utilitarian to do? Find some people to push in front of trolleys?

    Sotomayor’s main message is that we can’t entirely overcome our predispositions AND maybe that’s not a bad thing. Absent a more compelling argument, I would hope when it comes to applying the law the message remains that we better keep trying like hell.

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