As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Wednesday, May 27, 2009

Of Empathy, Identity and Double Standards

I've been trying to make this point about Sonia Sotomayor and the empathy talking point, but I don't know if it's come through, so I'll outsource to Ezra:

So far, most of the commentary has focused on Frank Ricci, a dyslexic firefighter who studied endlessly and hired someone to read him flash cards before a tough test that would decide a promotion. Ricci passed, but the test results were thrown out. The reason? Not enough African Americans cleared the exam, and the department worried it would be sued under Title VII. Ricci's tale is troubling. It's hard not to feel for him.

Ricci's experience, however, is not related to the legal questions presented by the case. As Dylan Matthews explains at Campus Progress, Sotomayor appears simply to have addressed the question before the court: That question was whether the county had reason to believe that the test results left it vulnerable to a lawsuit. Indeed, as Dahlia Lithwick and Doug Kendall argue over at Slate, Sotomayor is being attacked for something relatively odd: Rather than empathizing with Ricci, she ruled on the legal issue at hand. And that meant ruling against Ricci.

Conservatives, thus, are in the awkward position of choosing one of two lines of attack. You can argue that Sotomayor is too empathetic to make a good justice, or you can argue that her ruling in Ricci was cold and unfair. But you can't argue both.

Exactly. And Sotomayor almost makes a fetish of following the law in her opinions, so any question of her use of "empathy" only comes from the very natural way human beings, unlike robots, are shaped by their experiences and points of view.

Which is why the racialism argument is also so bogus, because it assumes that white men have absolutely no life experience upon which to draw.

Taylor's objection is based on two social assumptions that need to be utterly destroyed, the first being the idea that social perspective of white, Christian, heterosexual males are somehow "objective" and uncolored by life experience, and the second being the idea that acknowledging cultural specificity among non-whites is the same thing as assertions of white supremacy by whites. The fact is that many Latinos have faced a specific experience of systemic and social discrimination not shared by non-Latinos, and this experience colors their perspective just as not having it does. If there's anything problematic about Sotomayor's statement, it's that it is as nonspecific about "whiteness" as Taylor's is.

What people like Taylor find so offensive about Sotomayor's statement is that it properly exposes the perspective of white, Christian heterosexual men as specific to their experience, rather than the omniscient eye of G-d they're used to presenting it as. Does anyone seriously believe Dred Scott or Plessy v. Fergueson would have been upheld by any court that had the remotest idea of what it was like to be black or a slave? Or similarly that the court would have held in Minor v. Happersett that being a citizen didn't mean you had a right to vote if you were a woman? Do we really believe that judges in these cases were "simply upholding the law" in the absence of the cultural and social prejudices of their times?

I think this nomination has revealed far more about the conservatives who object to Sotomayor than the nominee herself. They really feel entitled by dint of birth and circumstance, and yet simultaneously feel that they are the most objective, neutral observers possible. Sotomayor provided an uncomfortable truth with that statement, one that her white male detractors refuse to acknowledge. Indeed, they are colored by their perspective and life experience in opposing her - a perspective of perpetual victimhood.

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