Re: Identity / Politics

1

Somehow, when George W. Bush affects a Texas accent, that's not identity politics. When John Edwards gets a VP nomination, that's not identity politics.

They are to me.So are Ivy League degrees, youth, and urbanity, which Yggles uses all the time.

Identity politics simply means making claims or arguments from your history or identity or experience, who you are. Or who the other is, not like me or us.


Posted by: bob mcmanus | Link to this comment | 05-27-09 9:06 AM
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When Pat Robertson shoots his mouth off, that's not Christian Identity politics.


Posted by: minneapolitan | Link to this comment | 05-27-09 9:14 AM
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Identity politics simply means making claims or arguments from your history or identity or experience, who you are.

No, I think it means in this context making claims or arguments from a very narrow definition of who you are. If discussions of Sotomayor were contemplating the complex interaction of her Ivy league pedigree, her circuit court experience, her experiences as a woman, her experiences as a Latina, her reasoning and writing as a jurist, there'd be no complaint. It's "identity politics" and offensive when her entire life experience is reduced to a Hispanic surname.


Posted by: Di Kotimy | Link to this comment | 05-27-09 9:18 AM
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Because I hate myself, I read a bunch of the comments at Fox's website after the announcement. About 3/4 of them talk about how she doesn't deserve the job because she only got into Ivy League schools because she's Hispanic (and the riter noes bc he did'nt get in that same year for beeing white!) and that she is a racist because of what she said about knowing things white men might not about life. One comment insisted this was all about REPORATIONS.

I hate to mock spelling in comments, but it struck me that most of the hideous spellers were the ones saying Sotomayor is clearly too stupid to have the resume she has; she obviously took the commenter's own spot at X University.


Posted by: A White Bear | Link to this comment | 05-27-09 9:24 AM
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Just like Yglesias to get all hot-blooded over this.


Posted by: Eggplant | Link to this comment | 05-27-09 9:24 AM
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but it struck me that most of the hideous spellers were the ones saying Sotomayor is clearly too stupid to have the resume she has; she obviously took the commenter's own spot at X University.

Of course, Yglesias's Harvard pedigree, combined with his spelling, does supply support for this theory.


Posted by: LizardBreath | Link to this comment | 05-27-09 9:26 AM
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she obviously took the commenter's own spot at X University.

Formerly Princeton University, before it decided to stop using its slave name.


Posted by: ajay | Link to this comment | 05-27-09 9:26 AM
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7 made me laugh. I saw some Yales in there too.


Posted by: A White Bear | Link to this comment | 05-27-09 9:28 AM
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The problem is that white dudes really seem to believe their own perspective on everything is really the broadest, the most general, the most objective, the most "real," and "white" is defined according to some calculus I can't follow. (Do you ever get the feeling that women of color are somehow more "of color" than men of color? Or is it just party lines?) There's a wonderful book from 1886 or so by Frances Willard called Woman in the Pulpit that explains that, because women are raised to think about everyone in the home, not just their own objectives, they are actually far better readers and interpreters of the Bible than most men, and that, at least, without women preachers, Christianity is deeply intellectually impoverished. Well, I think that's a reasonable comparison to draw with judges. Minorities in the US grow up learning to see things through their own eyes as well as through the dominant perspective, just like women learn to watch movies with their own gaze as well as the male gaze. There's a breadth of perspective there.

But what I just said is "racist" because it hurts white men so much, so...


Posted by: A White Bear | Link to this comment | 05-27-09 9:33 AM
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4: She took their spot and then beguiled P-ton into graduating her with a summa! She is a witch!


Posted by: oudemia | Link to this comment | 05-27-09 9:36 AM
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Well, is she heavier than a duck?


Posted by: LizardBreath | Link to this comment | 05-27-09 9:36 AM
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I agree with 9 completely. And yet when a similar sentiment was phrased by Twisty as "The reason I don't want men to post their opinions here is because as a woman in a male-dominated society, I know what men think already and don't need to hear it again", it seemed wrong.


Posted by: Cryptic ned | Link to this comment | 05-27-09 9:38 AM
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I am not sure how these white men get these spots at birth, but they should be more careful with them if they don't want to lose them to Latinas who go onto graduate summa and go to Yale Law. Keep them in a special pocket, or safety deposit box, or something.


Posted by: Cala | Link to this comment | 05-27-09 9:38 AM
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Minorities in the US grow up learning to see things through their own eyes as well as through the dominant perspective

Clarence Thomas, Alberto Gonzales, Elisabeth Dole.


Posted by: bob mcmanus | Link to this comment | 05-27-09 9:39 AM
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Minorities in the US grow up learning to see things through their own eyes as well as through the dominant perspective, just like women learn to watch movies with their own gaze as well as the male gaze.

I just wanted to quote that again because it is so well said and should be said over and over.


Posted by: Di Kotimy | Link to this comment | 05-27-09 9:41 AM
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It all comes back to that Byron York thing about how non-white Americans aren't really Americans, as if they're somehow living like isolated tribes in the Bronx, with no access to or influence from white culture, white expectations, white values, etc., unless they're completely on-board with all of it and become right-wing Republicans, like 14.


Posted by: A White Bear | Link to this comment | 05-27-09 9:45 AM
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9:Exactly. I think there is something fundamental about being forced to work with multiple worldviews that's sort of similar to the way knowing more than one language makes learning an additional language easier. Something about being able to slip out of your innate worldview changes things, forcing you to adopt a sort of meta-worldview. I'm sure someone better educated than I could frame this better, but my spot at Princeton was taken by a minority.


Posted by: togolosh | Link to this comment | 05-27-09 9:49 AM
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12: Twisty was being rude to individuals, including you, as someone who might want to talk to her. That's going to be a piss-off even if you fundamentally agree with her reasons for not believing you're going to have anything unexpected to say to her.


Posted by: LizardBreath | Link to this comment | 05-27-09 9:49 AM
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9, 16: It's something I think alot about in terms of gender as a parent. Rory can watch plenty of movies with boy heroes and can identify just fine with the boy-hero. Movies with girl heroes* are harder to find -- and harder still to find are girl heroes with whom little boys can comfortably identify. Movies with girl protagonists are girl movies; movies with boy protagonists are for everyone. And so boys have that much more difficulty understanding girls and girls are startled to discover that boys seem to expect that girls are so much different from and inscrutable to boys. I was practically an adult before I learned that I am supposed to be different from boys, and it's proven quite a challenge in that I do not, in fact, prefer to sit around empathizing all day. I don't want that for my kid.


Posted by: Di Kotimy | Link to this comment | 05-27-09 9:54 AM
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Not just a piss-off, but illogical. For as a woman, doesn't she know what women think even better than she knows what men think? Or are women's experiences just so much more complicated and unique and fascinating? Ah, who cares.


Posted by: Cryptic ned | Link to this comment | 05-27-09 9:54 AM
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I learned how tough it was to discuss this subject in this crowd last year. It is always the other side who are playing identity politics.

So I will just leave y'all with the observation that the Right really doesn't give a shit about this stuff, and aren't directly playing to their base, but are just pushing liberal buttons, and getting exactly the response they want. But it's easy.

They want us to to call them & theirs racist and sexist. Full stop.


Posted by: bob mcmanus | Link to this comment | 05-27-09 9:54 AM
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19 cont.

* Yes, neb, I know. Heroine. Bah.


Posted by: Di Kotimy | Link to this comment | 05-27-09 9:55 AM
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You know, Clarence Thomas is essentially a Falangist and the most reactionary justice on a court that includes Sam Alito, but I'm not sure I would argue with him as an example of the statement you're mocking in 14. He has what to a non-lawyer like me seems like a sui generis conception of American law and his role as a judge, but I think it's hard to say that his identity as an African-American doesn't play into it (even if his political views aren't shared by 99% of African-Americans).


Posted by: snarkout | Link to this comment | 05-27-09 9:57 AM
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21: ...just pushing liberal buttons... No, they are pushing right-wing knee jerk buttons. Win or lose, they'll bring tons of money into their coffers, the better to position themselves for the elections in 2010 and 2012.

This is about riling up the base, not pissing off liberals. The latter effect is a secondary benefit, but the real aim is to keep the base emotionally worked up. If they can shoot down Sotomayor they'll have a win to cheer them up after the shellacking they took last November. If they lose they'll see it as confirmation of the vast left wing conspiracy. Either way they'll raise a bunch of money to support the wingnut welfare system and prepare to recoup their electoral losses.

The first rule of politics applies here: Follow the money.


Posted by: togolosh | Link to this comment | 05-27-09 10:04 AM
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it struck me that most of the hideous spellers were the ones saying Sotomayor is clearly too stupid to have the resume she has

It's struck me, too, that while Sotomayor's confirmation is likely to be assured, if the reports are to be believed, the loudest howls of rage seem to be from bystanders with minimal to no influence over the actual votes for or against that confirmation. That is, I'm struck by how the opposition seems to be driven so much more by a perverse delight in calling a Latina a racist than in actually trying to block the nominee.

(More or less pwned by #24, which wouldn't have happened had I been able to attend an Ivy League school.)


Posted by: Populuxe | Link to this comment | 05-27-09 10:12 AM
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23 is totally right.


Posted by: Robert Halford | Link to this comment | 05-27-09 10:17 AM
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Totally OT: One of my students gave the commencement address yesterday and told a story about how I changed his life, etc. Isn't that sweet?


Posted by: A White Bear | Link to this comment | 05-27-09 10:26 AM
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27: For the better, right?


Posted by: Eggplant | Link to this comment | 05-27-09 10:30 AM
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This is about riling up the base, not pissing off liberals.

Note the "directly" in 21.

Miguel Estrada, Alberto Gonzales, Mel Martinez. If Sotomayor had Alito's ideology and judicial philosophy Jeff Sessions would be crazy for her. Republicans know this.

If 70% of blacks voted like Jeff Sessions, would Republicans welcome them into the party? What's her name on the DC Circuit, the black woman, Brown? Republicans had no problem with her, and would have loved her to SCOTUS.

I don't know why the Democrats are so invested in calling their opponents (even HRC supporters, whenever it feels good, I guess) sexist and racist, maybe it is a good idea, but Republicans don't believe it is true, and the accusation is what riles them up.

But if Obama had nominated a WASP with Sotomayor's qualifications and ideology, the left would be screaming:"Why not a woman or minority?" And simultaneously claiming that they are not playing identity politics.

Republicans are just real good at putting their opponents on the defensive.

Look, this is just real tough for me. Y'all are saying the Roberts & Alito were appointed because they were white males, and I just can't help thinking that their ideology was more important. Maybe I'm just blind.


Posted by: bob mcmanus | Link to this comment | 05-27-09 10:32 AM
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Oh lord, can you imagine how craptacularly smug the right wing would have been had they somehow been able to find a divorced paraplegic Latina with Sotomayor's resume and a rigidly authoritarian ideology?


Posted by: Jackmormon | Link to this comment | 05-27-09 10:35 AM
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And if you say Roberts & Alito have their ideologies because they are white males, then you are really gonna piss me off.

But maybe that is just my white male privilege speaking.


Posted by: bob mcmanus | Link to this comment | 05-27-09 10:36 AM
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29: Roberts and Alito were selected for their ideology, but the pool of candidates was heavily tilted towards white males, and the fact that they are white males eased their confirmation.

It's not an accident that when a black man was chosen from the pool of ideologically acceptable candidates he was attacked along lines that play directly into racist preconceptions of black men.


Posted by: togolosh | Link to this comment | 05-27-09 10:38 AM
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27: Prize, money, sex, now this? You're on a roll. Congratulations.


Posted by: togolosh | Link to this comment | 05-27-09 10:40 AM
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I don't know why the Democrats are so invested in calling their opponents (even HRC supporters, whenever it feels good, I guess) sexist and racist,

Well, they're claiming that a woman who graduated summa cum laude from Princeton, and then from Yale Law school must be an affirmative action hire because she can't be all that bright. In this case, the accusation seems to match the facts.


Posted by: Cala | Link to this comment | 05-27-09 10:41 AM
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28: I gave an impassioned speech about the importance of bitching. My students at that particular school tend to be of the "we hate everything and aren't getting what we need but we won't say peep; we'll just scowl and feel impotent" variety. So I said something to the effect of, listen, everyone here is here because they want to give you what you need, from top administration on down, and if you're not getting it, you have to ask for it. If you want to take classes that we don't have, they'll either try to offer them or allow you to take them somewhere else. But you have to ask, and organize with other students, and make this shit happen. We're not mind-readers.

So he ended up getting to take a doctoral class at my school and doing an independent study with one of my advisers.

I did this kind of stuff all the time, since I was in elementary school. I'm sure it was a nightmare for administrators, but I'd do things like write my junior high gifted class "goals" for the year as things like "AWB will not take the required Communications course because she will instead take French and Spanish. She will also not take Gifted class, and will leave school an hour early, because she takes math at the high school in the morning anyway." My mom got a lot of shit about that from the principal over the phone, but what my later Poli Sci prof (an anarchist) said was true; academic administrators are either really helpful or really pussy, and students can pretty much get anything they ask for if they make a good case for it.


Posted by: A White Bear | Link to this comment | 05-27-09 10:44 AM
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33: When did I get sex? I missed this part. (Yeah, yeah, I'm working on it.)


Posted by: A White Bear | Link to this comment | 05-27-09 10:44 AM
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36: Oh, duh. I missed it because I was on tequila. Damn. Scary.


Posted by: A White Bear | Link to this comment | 05-27-09 10:45 AM
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You were drunk, darling. But we assume it was good.


Posted by: Megan | Link to this comment | 05-27-09 10:46 AM
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35: That's awesome! Would you mind coming over and giving me that speech every few weeks?


Posted by: Eggplant | Link to this comment | 05-27-09 10:48 AM
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Janice Roger Brown

This black woman just about terrifies me, although at 60, she is probably too old now.


Posted by: bob mcmanus | Link to this comment | 05-27-09 10:51 AM
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35: 37: That's awesome! Would you mind coming over and giving me that speech every few weeks?bring the tequila.


Posted by: Di Kotimy | Link to this comment | 05-27-09 10:52 AM
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41: Sweetheart, if I made love to you, I'd wanna remember it.


Posted by: A White Bear | Link to this comment | 05-27-09 10:58 AM
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Believe me, dear. You would.


Posted by: Di Kotimy | Link to this comment | 05-27-09 11:04 AM
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Who are you talking to, bob? You should go to the blog where some of the people you're talking to are.


Posted by: Cryptic ned | Link to this comment | 05-27-09 11:08 AM
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told a story about how I changed his life

"That bitch gave me hepatitis!"


Posted by: apostropher | Link to this comment | 05-27-09 11:10 AM
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Something about being able to slip out of your innate worldview changes things, forcing you to adopt a sort of meta-worldview.

When folks object to journalists, academics and actors being "liberal," the underlying complaint is about attempts to see the world through the eyes of other people.


Posted by: politicalfootball | Link to this comment | 05-27-09 11:11 AM
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46: Right. The furor about "empathy" is really about how, you know, "empathy" is evil. It's not just "code" for liberalism; it's the heart of the reason why they think liberalism is so bad.


Posted by: A White Bear | Link to this comment | 05-27-09 11:13 AM
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Right. The furor about "empathy" is really about how, you know, "empathy" is evil. It's not just "code" for liberalism; it's the heart of the reason why they think liberalism is so bad.

So the opposite of liberalism is narcissism?


Posted by: Di Kotimy | Link to this comment | 05-27-09 11:15 AM
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I think there's some secret code to Yglesias's misspellings, something like: when he's posting because that's his job, he's a decent copy editor, but when he feels compelled to post, normative English spelling fails him. If so, we can calculate how irate he actually is by the ratio of errors to words, in which case, he's really pissed off right now.


Posted by: SEK | Link to this comment | 05-27-09 11:15 AM
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So the opposite of liberalism is narcissism?

No, the opposite of liberalism (sensu americano) is solipsism.


Posted by: OFE | Link to this comment | 05-27-09 11:18 AM
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So the opposite of liberalism is narcissism?

It's no coincidence that Rush Limbaugh has become the de facto leader of the Republican Party.


Posted by: politicalfootball | Link to this comment | 05-27-09 11:20 AM
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50: Interestingly, I've never been able to distinguish in my own mind between narcissism and solipsism, suggesting I use one or both terms inaccurately.


Posted by: Di Kotimy | Link to this comment | 05-27-09 11:21 AM
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52. My (possibly wrong) understanding is that narcissists make it all about them, whereas solipsists (not in the fully fledged philosophical definition) think they are all there is.


Posted by: OFE | Link to this comment | 05-27-09 11:24 AM
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It's no coincidence that Rush Limbaugh has become the de facto leader of the Republican Party.

This terrifies me.


Posted by: Di Kotimy | Link to this comment | 05-27-09 11:25 AM
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53: So narcissists recognize the existence of others, they just assume others exist solely for their benefit; solipsists don't even recognize that others exist?


Posted by: Di Kotimy | Link to this comment | 05-27-09 11:27 AM
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I think so. They think other people are some sort of projection of their own ideas.


Posted by: OFE | Link to this comment | 05-27-09 11:30 AM
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I just use my own definitions of both and go on my merry way. Y'all do as you see fit.


Posted by: JP Stormcrow | Link to this comment | 05-27-09 11:35 AM
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Congratulations, AWB!

(on narcissism and solipsism-- everytime anybody uses the word "peep" on the internet, I assume they are thinking about me, because I am a narcissist. If I was a solipsist maybe I would just think that one of my projections was being kind of unsubtle).


Posted by: peep | Link to this comment | 05-27-09 11:37 AM
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Via Josh Marshall, Newt twitters:

White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.

Posted by: politicalfootball | Link to this comment | 05-27-09 11:38 AM
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Do you remember back when moderates like George W. Bush and Karl Rove were the leaders of the Republican party and part of their strategy was to win a good portion of the Hispanic vote?

Now it seems the Republican party just wants the votes of aggrieved white males and the women that love them.


Posted by: peep | Link to this comment | 05-27-09 11:40 AM
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Oh Newt, you card.


Posted by: redfoxtailshrub | Link to this comment | 05-27-09 11:40 AM
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Narcissists and Solipsists?

Teabags & Douchbags ...David Sirota, h/t DeLong

That means until progressives stop spending their time ridiculing teabaggery and start co-opting it through their own brand of full-throated populism, we will continue to be portrayed as the inept douchebags in the Manichean struggle--and we may see any "new New Deal" opportunity pass us by.

44:I thought I was talking to people who helped put a Reagan Democrat in the WH during a recession. the disappointed ones who thought Obama looked like a progressive, not sure why, but there was something about Obama that gave them hope for change. Something about Obama, something, whatever could have fooled us?


Posted by: bob mcmanus | Link to this comment | 05-27-09 11:45 AM
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forcing you to adopt a sort of meta-worldview

Du Bois' "double-consciousness."


Posted by: Sir Kraab | Link to this comment | 05-27-09 11:46 AM
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That means until progressives stop spending their time ridiculing teabaggery and start co-opting it through their own brand of full-throated populism, we will continue to be portrayed as the inept douchebags in the Manichean struggle--and we may see any "new New Deal" opportunity pass us by.

That's right! Certainly a bunch of anti-tax protests that use a term for rubbing one's testicles on another's face is the last great hope of the American left.

What did Sirota have to say about the May Day immigration rallies in Los Angeles and New York, Bob? Or do those not count because they're identity politics? (Or perhaps because the media ignored them in favor of the teabag buffoonery?)


Posted by: snarkout | Link to this comment | 05-27-09 11:49 AM
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put a Reagan Democrat in the WH during a recession

After the first few primaries, that's all there was on offer, if you take the Senate records of Obama, Edwards, and Clinton at face value.


Posted by: apostropher | Link to this comment | 05-27-09 11:50 AM
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Considering the amount of whining liberals have done about how Clarence Thomas was only picked because he was black I don't think they have much grounds for complaint here.


Posted by: James B. Shearer | Link to this comment | 05-27-09 11:51 AM
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Ass lodged urinal third floor Men's room FoxNews DC studio. Send help. #tcot


Posted by: Newt Gingrich | Link to this comment | 05-27-09 11:51 AM
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Something about Obama, something, whatever could have fooled us?

He used his spooky black magic to addle our minds!

['Pun intended,' as max might say.]


Posted by: Sir Kraab | Link to this comment | 05-27-09 11:54 AM
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Personally, I would have expected a black Justice to be awesomer and any Justice at all to be less of a taciturn misanthrope.

And I still believe Anita.


Posted by: Jackmormon | Link to this comment | 05-27-09 11:57 AM
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Considering the amount of whining liberals have done about how Clarence Thomas was only picked because he was black I don't think they have much grounds for complaint here.

Clarence Thomas had served as a federal judge for 18 months before being named to the Supreme Court, and had never to my knowledge published a law review article. Sotomayor has been on the federal bench for almost seventeen years, with more than ten years of that on a court of appeals. But hey! They're both not white!

(I should rescind my comment in 64. Sirota's movement of full-throated left populism could well take off. Middle-aged white guys protesting against lemon capitalism and "socialism of the rich"! Surely that will get fair and equitable treatment from cable news, and Sirota will have the last laugh as "Lemon Parties" take place in every town square.)


Posted by: snarkout | Link to this comment | 05-27-09 11:58 AM
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After the first few primaries, that's all there was on offer

Well, there was chopping off heads. That's what Robespierre would've done.


Posted by: Populuxe | Link to this comment | 05-27-09 12:00 PM
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I thought Sirota was giving up punditry to take a real job. Another promise broken.


Posted by: Gabriel | Link to this comment | 05-27-09 12:02 PM
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"Lemon Parties" take place in every town square

Heh. And then we could find a female middle-America plumber to trot in front of the cameras, one who had to shut down her plumbing business due to skyrocketing health care costs. And give her a catchy nickname! Maybe Tub-something-or-other.


Posted by: apostropher | Link to this comment | 05-27-09 12:06 PM
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Pray, dear Snarkout, don't confuse teabag populism with actually-existing teabag populism. The latter is a corrupt form of state capitalistic teabaggery, the former, on the other hand, has never yet been tried.


Posted by: Populuxe | Link to this comment | 05-27-09 12:06 PM
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59: I don't even understand why Newt is claiming Sotomayor is racist. Or are all non-Republican minorities racist by definition?


Posted by: Spike | Link to this comment | 05-27-09 12:13 PM
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62: I briefly considered showing up at the local tea party wearing colonial era garb and carrying a sign reading "Benedict Arnold: America's first true conservative." Decided against since I dislike being beaten like a rented mule.


Posted by: togolosh | Link to this comment | 05-27-09 12:13 PM
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I don't even understand why Newt is claiming Sotomayor is racist.

This is an old game for Gingrich.


Posted by: apostropher | Link to this comment | 05-27-09 12:16 PM
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75: That one "wise Latina woman" quote, pretty much. I don't think there's anything else.


Posted by: LizardBreath | Link to this comment | 05-27-09 12:17 PM
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29 makes sense to me.


Posted by: Brock Landers | Link to this comment | 05-27-09 12:18 PM
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77: This is a very weird entry in the "Optimistic Positive Governing Words" list:

eliminate good-time in prison


Posted by: Sir Kraab | Link to this comment | 05-27-09 12:27 PM
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Bad-times for all!


Posted by: A White Bear | Link to this comment | 05-27-09 12:28 PM
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And the "contrasting" words for your opponents include cheat, corruption, destroy, disgrace, greed, hypocrisy, lie, pathetic, selfish, shallow, shame, sick, traitors, treason, and unionized.


Posted by: Sir Kraab | Link to this comment | 05-27-09 12:35 PM
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"activist" seems to have migrated from the good list to the bad list in the years since 1996.


Posted by: Spike | Link to this comment | 05-27-09 12:36 PM
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Clarence Thomas had served as a federal judge for 18 months before being named to the Supreme Court, and had never to my knowledge published a law review article. Sotomayor has been on the federal bench for almost seventeen years, with more than ten years of that on a court of appeals. But hey! They're both not white!

What's interesting about Thomas is that while wildly unqualified for the Supreme Court by any normal standard, he's a perfectly competent Justice, aside from being batshit insane. A wider range of adult life experience might have helped with the batshit insanity, but since he seems to have organized his life around CHANGEBAD, it doesn't seem likely.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 12:39 PM
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Thomas is that while wildly unqualified for the Supreme Court by any normal standard, he's a perfectly competent Justice,

Really? My impression of him is that he's the worst justice. Am I wrong that his reputation is that he never asks questions and kinda phones it in, pretty much going along with whatever Scalia wants to do?


Posted by: Spike | Link to this comment | 05-27-09 12:43 PM
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he's a perfectly competent Justice, aside from being batshit insane.

See, this might illustrate our differing judicial philosophies, but this seems like a contradictory sentence to me.


Posted by: rob helpy-chalk | Link to this comment | 05-27-09 12:43 PM
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Clarence Thomas is crazy and reactionary, but he's also very smart, and is in many ways the most intelligent, consistent and coherent member of the Court's conservative majority. He's really an interesting figure,a kind of right-wing judicial revolutionary. I think it would be a disaster if there were five Thomases on the Court. But I also think that it is true that many left-wing attacks on Thomas are really racist.

This is especially obvious when people call him Scalia's puppet or attack him for his very reasonable belief that lawyers should be able to speak at oral argument without a lot of grandstanding by the justices, probably his most defensible position.

With that said, Sotomayor is clearly a more "qualified" (whatever that means) nominee than was Thomas at the time of his nomination.


Posted by: robert halford | Link to this comment | 05-27-09 12:44 PM
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This is just lovely:

Deferring to people's own pronunciation of their names should obviously be our first inclination, but there ought to be limits. Putting the emphasis on the final syllable of Sotomayor is unnatural in English (which is why the president stopped doing it after the first time at his press conference) ... and insisting on an unnatural pronunciation is something we shouldn't be giving in to.

Posted by: Brock Landers | Link to this comment | 05-27-09 12:44 PM
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82: unionized - as opposed to "ionized", of course.


Posted by: Tom Scudder | Link to this comment | 05-27-09 12:45 PM
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It's true that he never asks questions, but he doesn't always vote with Scalia and his opinions are competent enough (if often batshit).


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 12:46 PM
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[Gonna answer Bob in a second]
Di: 53: So narcissists recognize the existence of others, they just assume others exist solely for their benefit; solipsists don't even recognize that others exist?

Actual NPD's are supposed to see others as things; weirdly they tend to see themselves as things as well (just the most important thing). This really varies with individuals. Solipsism seems more like the intellectual equivalent of solipsism. I kind of doubt there 'emotional' solipsists out there, or not coherent ones at any rate.

A full blown schizo might well truly have a solipsistic worldview, but how would you (or they) tell?

Now sociopathy (here intended as 'anti-social disorder') and psychopathy (intended as proposed psychopath PD) tend to narcissism, as well. Most of these R persons strike me as sociopathic (or just plain racist) rather than full blown narcissists.

max
['Someone could easily be both at the same time though!']


Posted by: max | Link to this comment | 05-27-09 12:48 PM
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85 is just wrong. Read Thomas's dissent in the marijuana/commerce clause case, for example. He has said that he doesn't speak at oral argument for the sensible reason that he's actually interested in what the lawyers have to say. The continuing belief on the left that Thomas is (a) Scalis's puppet and (b) dumb is basically just racism.


Posted by: robert halford | Link to this comment | 05-27-09 12:49 PM
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I'm with Halford. There's a lot to like about Thomas. If he weren't batshit insane, I think he'd be a good justice.


Posted by: Brock Landers | Link to this comment | 05-27-09 12:49 PM
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And what 87 said.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 12:49 PM
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86: What he is, is more consistent (not perfectly, but more than most judges) about originalism than Scalia or most other 'originalist' judges. And this leads to loony results, but they're loony as the result of consistent adherence to a philosophy that plenty of respectable people pay lip service to.


Posted by: LizardBreath | Link to this comment | 05-27-09 12:49 PM
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(And even though he's batshit insane, in many ways I respect him more than some of his colleagues.)


Posted by: Brock Landers | Link to this comment | 05-27-09 12:51 PM
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Wow, I am getting pwnd right and left by the Unfogged Thomas defenders. What NPH and Brock said.


Posted by: robert halford | Link to this comment | 05-27-09 12:51 PM
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88: So the natural pronunciation of English is German? Huh.


Posted by: essear | Link to this comment | 05-27-09 12:51 PM
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If he weren't batshit insane, I think he'd be a good justice.

If it wasn't for the child-murdering, John Wayne Gacy was a good clown.


Posted by: apostropher | Link to this comment | 05-27-09 12:53 PM
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He's just SO loony. It's an interestingly consistent and thoroughgoing loonyness, which I guess is admirable in its way, but also makes him seem more like a strange constructed originalistbot than an actual human.


Posted by: redfoxtailshrub | Link to this comment | 05-27-09 12:53 PM
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85
Am I wrong that his reputation is that he never asks questions and kinda phones it in, pretty much going along with whatever Scalia wants to do?

IANAExpert and I don't remember where I read this - LGM, maybe? - but my impression is that Thomas' philosophy of government, even though it would be a disaster if it were more common, is far more coherent and respectable than Scalia's. Scalia rules the way the Republican who argued before the court wants, Thomas rules the more conservative position.

On the other hand...
87
his very reasonable belief that lawyers should be able to speak at oral argument without a lot of grandstanding by the justices, probably his most defensible position.

That last bit is damning with faint praise.


Posted by: Cyrus | Link to this comment | 05-27-09 12:55 PM
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To clarify 96 somewhat, I think he has more intellectual honesty than some of his colleagues.


Posted by: Brock Landers | Link to this comment | 05-27-09 12:55 PM
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What he is, is more consistent (not perfectly, but more than most judges) about originalism than Scalia or most other 'originalist' judges.

Also, he is amazed by dishwashers.


Posted by: rob helpy-chalk | Link to this comment | 05-27-09 12:57 PM
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but also makes him seem more like a strange constructed originalistbot than an actual human

He's anything but a bot. A whole lot of his worldview seems to be built on a mixture of bitterness over being dissed as a lightweight and nostalgia for an idealized version of the America he grew up in (presumably with a bit less racism, although I'm not entirely sure even about that).


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 12:58 PM
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99: It's the distinction between being incompetent and being on the other side. He's not doing a bad job in the sense of being unskilled, he just gets wrong answers because he's working from a loony philosophy.

(Of course, more consistent than most on the originalism front is still pretty inconsistent. In my current job, I do a fair amount of Eleventh Amendment litigation, and man that's an inexplicable body of caselaw by originalist standards.)

Something that's worth pointing out about Thomas, though, is that while it's racist and untrue to say that he's stupid or unskilled, it is not racist and it is true to say that he was an affirmative action hire -- it's pretty unambiguously clear that he was groomed for an SC appointment and then appointed as a black conservative, not for race-blind reasons. I'm not bothered by that, but anyone who thinks of affirmative action as intrinsically evil should be; approving of Thomas's appointment to the court should imply thinking that affirmative action is at least sometimes acceptable.


Posted by: LizardBreath | Link to this comment | 05-27-09 12:59 PM
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That being said, I think it's unfair to call people racist just because they think Thomas is stupid. He does vote like Scalia a lot and he does act a lot less curious, for a definition of "acting curious" that's hard for a layman to distinguish from grandstanding. Assuming that you disagree with them, calling him stupid seems like a natural inference.


Posted by: Cyrus | Link to this comment | 05-27-09 1:01 PM
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The thing that finally swayed me in favor of Thomas as principled-but-nutty was his saying that it's absurd to think the founders would have supported criminalizing home growing of marijuana. To me that's both obviously true and quite firmly at odds with the Scalia wing of the court.

Also I've seen it written that one of the reasons Thomas is so reticent is that he originally had a rather thick accent due to growing up speaking Geechee.


Posted by: togolosh | Link to this comment | 05-27-09 1:02 PM
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104 - Like I said in 27. It's a delicious souffle of fakeyfake nostalgia and fever-dream framers' intentionalism, with a ladleful of Booker T. Washington self-reliance sauce and a side of wanting Franco to show those pinko intellectuals who's boss by shooting them.


Posted by: snarkout | Link to this comment | 05-27-09 1:03 PM
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it's pretty unambiguously clear that he was groomed for an SC appointment and then appointed as a black conservative, not for race-blind reasons

In conventional terms, he was maybe marginally more qualified than some of the Unfogged legal contingent for a Supreme Court appointment. We'd do fine; so has he. The job isn't rocket science.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:03 PM
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Yeah, the "votes like Scalia" thing is untrue, but I think is CW largely* because he never breaks from the 5-4 conservative block (this one or the old one); no one pays enough attention to notice when he breaks from Scalia on 6-3 decisions (which is where you can see his revolutionary wackiness).

Thomas is most obviously independent-minded in that he is the most likely of the hard-right justices to vote for civil liberties and against business (Scalia will sometimes vote against civlib just to piss off liberals, since other times he will be principled for civlib - as long as it won't advance the "gay agenda" or whatever). Thomas is in some ways a typical paranoid wingnut, but along his own special vector.

* Some of it is, of course, racism, but it's also because, pre-Alito & Roberts, Scalia & Thomas were clearly the most right, and in ways so crazy that vote-suppressor Rehnquist wouldn't even go along.


Posted by: JRoth | Link to this comment | 05-27-09 1:04 PM
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Bob: So I will just leave y'all with the observation that the Right really doesn't give a shit about this stuff, and aren't directly playing to their base, but are just pushing liberal buttons, and getting exactly the response they want. But it's easy. They want us to to call them & theirs racist and sexist. Full stop.

That may well be one of their intended points and they might well have convinced themselves that it's true (much less they're convinced waterboarding isn't torture and it's legal), but what they're saying comes right out of the base. No need to play to the base, when you're just echoing and amplifying.

Look, this is just real tough for me. Y'all are saying the Roberts & Alito were appointed because they were white males, and I just can't help thinking that their ideology was more important. Maybe I'm just blind.

Speaking as (mostly, goddammit! I have plenty of drops of blood!) as a white male, I think it is very difficult for someone who is not a white male to adopt the hardcore 'originalist' theory and other entertaining R (neo-confederate) theorizing. The ones who have (Michael Steele? Clarence Thomas? John Yoo?) seem to have seriously compartmentalized. To wit, Clarence Thomas usually votes right wing, but he came down in favor of a federal anti-crossburning law (which would have otherwise lost in the SC), for obvious reasons. Meanwhile, Michael Steele is all in favor of the 'Magic Negro' song and then turns around and says how happy he is that the US elected a black man.

I think it is pretty goddamn hard to justify originalist thinking unless you have an emotional stake in the issue, and the people who have an emotional stake in the set of issues originalism supports tend to be upper-class, white, hard-right Christian or Southern.

What makes it interesting is someone like David Souter who was nominated as a true conservative, and his opinions sure look to me like actual small-c conservative rulings. Which makes the right unhappy, as they understand conservative to mean 'Dixiecrat', which is actually not particularly conservative ideological tendency.

Unless you think Andrew goddamn Jackson was a conservative. (I don't, since he was neither Toryesque, nor restrained; he was more classical liberal, authoritarian/aggressive and staunchly racist. A very Southern kind of radical.)

max
['Even someone I would think of as a conservative in the (decent) American sense, George Washington, was basically a radical, just a mild one.']


Posted by: max | Link to this comment | 05-27-09 1:05 PM
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I still think that I should be the next justice.


Posted by: nosflow | Link to this comment | 05-27-09 1:05 PM
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112: The opinions would be epic.


Posted by: LizardBreath | Link to this comment | 05-27-09 1:09 PM
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92: I don't think calling criticism of Thomas "racism" is really any better than Newt calling Sotomayor a racist for thinking that Latinas have different experiences than white men. Both cases are cop out accusations meant to shame the other side without having to deal with their arguments. And neither accusation is particularly compelling on its own merits.

I don't think that Thomas is dumb, but I do think he's lazy. My opinion may be wrong, but I don't come by it out of racism. I come by it because he never asks questions. But apparently that's defensible because of his principals, or whatever.


Posted by: Spike | Link to this comment | 05-27-09 1:09 PM
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I agree with 105 completely.

Also, in non-ideological cases, his opinions are very well done, much better than IMO either Scalia or Kennedy. And it's not just originalism; he's got interesting and well-defined positions on a number of other issues, too.

I do think that the persistence of the belief that Thomas is incompetent results from people viewing him as an affirmative action hire (which, of course, as LB says, he was). But his story really proves that an affirmative action hire with minimal, but not extraordinary, qualifications can be equally or more competent than other judges, while bringing a unique perspective to the bench.


Posted by: robert halford | Link to this comment | 05-27-09 1:10 PM
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I haven't read enough opinions to say this with confidence, but my impression is that Thomas also does a much better job than Scalia with cases that have less ideological component. At least in some areas, a Thomas opinion will build on precedent in a recognizable way and actually make it easier for a practitioner to figure out what the law is, while a Scalia opinion will do a bunch of fancy rhetorical handwaving to produce a result that's consistent with whatever hobbyhorse he's riding that day but doesn't fit particularly well with other cases in the area.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:11 PM
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Deferring to people's own pronunciation of their names should obviously be our first inclination, but there ought to be limits.

No there shouldn't.


Posted by: Siobhan Featherstonehaugh | Link to this comment | 05-27-09 1:15 PM
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Clarence Thomas is crazy and reactionary, but he's also very smart, and is in many ways the most intelligent, consistent and coherent member of the Court's conservative majority.

Thomas's intellectual vacuity exceeds that even of Scalia. How does someone deeply interested in the Founders' intent support Bush's position in
Hamdi v. Rumsfeld?

There's a dark, authoritarian tendency on the court epitomized by Thomas.


Posted by: politicalfootball | Link to this comment | 05-27-09 1:15 PM
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The idea that a justice is lazy because they're not vocal at oral argument is understandable, but it's also wrong and reflects ignorance about the role and importance of oral argument.

I do think that the persistence of the meme about Thomas's laziness reflects an underlying amount of background unconscious racism.


Posted by: Robert Halford | Link to this comment | 05-27-09 1:16 PM
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My opinion may be wrong, but I don't come by it out of racism. I come by it because he never asks questions.

OK, but judging how hard a judge works by how many questions they ask from the bench reflects a fundamental misunderstanding of what judges do for a living.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:16 PM
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114: I don't think that Thomas is dumb, but I do think he's lazy. My opinion may be wrong, but I don't come by it out of racism. I come by it because he never asks questions. But apparently that's defensible because of his principals, or whatever.

The thing is, that oral argument is mostly kabuki, the heavy lifting should be in the papers. Sitting back and letting the attorneys say what they want is quirky, but not good evidence of being stupid or lazy. That doesn't make you racist for having drawn conclusions about him from the fact that he doesn't ask questions, but the degree to which those conclusions have become common probably has a fair amount to do with his race.


Posted by: LizardBreath | Link to this comment | 05-27-09 1:17 PM
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Dammit, Halford, that's twice in ten minutes.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:17 PM
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Heh. Doublypwned.


Posted by: LizardBreath | Link to this comment | 05-27-09 1:17 PM
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But at least I didn't get pwned by a girl.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:18 PM
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DAMMIT!


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:18 PM
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Dude, you pwned me, not the reverse.


Posted by: LizardBreath | Link to this comment | 05-27-09 1:22 PM
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I don't think that Thomas is dumb, but I do think he's lazy. My opinion may be wrong, but I don't come by it out of racism. I come by it because he never asks questions. But apparently that's defensible because of his principals, or whatever.

I think this is the root of alot of people's gripe with Thomas. He's hardly the first jurist to believe that the oral arguments aren't going to tell him anything important that he couldn't get from the briefs and diligent research. And in some ways his muteness from the bench is preferable to the approach of some judges who see oral argument as their own opportunity to grandstand. Still, I find the attitude of judges who think oral argument is useless to reflect a somewhat impolite hubris. Very rarely have I changed any judge's mind (or seen anyone else do so) by oral argument. But I have seen it as a very effective tool for clarifying the fine details of a party's position with a resulting sharpening of the written decision.

There is video of all of the current justices (maybe not Alito or Roberts?) available at lawprose.com. I will give Thomas credit for some thoughtful commentary on legal writing -- his attitude about writing, and particularly editing, does not suggest laziness.


Posted by: Di Kotimy | Link to this comment | 05-27-09 1:24 PM
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But your acknowledgment of being pwned pwned my attempt to further pwn you. So I think you win. Again.

White man just can't get a break in this country.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:24 PM
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118: Aside from the 'intellectual vacuity' bit, I'd agree with this as well.


Posted by: LizardBreath | Link to this comment | 05-27-09 1:24 PM
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Thomas isn't dumb, but he's not flashy and stylish like Scalia is, and I think Scalia's reputation for smarts is built on those two qualities.


Posted by: Cala | Link to this comment | 05-27-09 1:26 PM
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I once read some whinging thing by Posner about the declining quality of oral arguments. No one cared about putting together something rhetorically effective, about the shape of the words themselves, blah blah blah. But apparently Posner is one of those judges who can't let three words escape an attorney's lips before interrupting. If I were to come before Posner, I sure wouldn't waste time on rhetoric.


Posted by: nosflow | Link to this comment | 05-27-09 1:27 PM
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Basically, LB, NPH is flirting with you.


Posted by: nosflow | Link to this comment | 05-27-09 1:28 PM
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while a Scalia opinion will do a bunch of fancy rhetorical handwaving to produce a result that's consistent with whatever hobbyhorse he's riding that day but doesn't fit particularly well with other cases in the area.

I have said before and I will say it again (as a hearty endorsement of what's been said): Scalia strikes me as a close approximation of what a French (Catholic) Royalist would've sounded like under the Sun King. Scalia and Yoo seem to have a lot in common. At this point I tend to be shocked and surprised when Scalia actually adheres to the written Constitution. Thomas OTOH, is just weird (sometimes I feel bad for him; other times I do not).

I do wonder if the notion that Thomas is stupid originated with the R's ('But we'll nominate him anyways!') and got (and gets) picked up by the D's. Outside of Official Praise, they don't seem to like him a whole awful lot.

max
['Hard to say.']


Posted by: max | Link to this comment | 05-27-09 1:28 PM
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131: I imagine you would gain his rapt attention if you delivered the arguments in song.


Posted by: Sifu Tweety | Link to this comment | 05-27-09 1:29 PM
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131: I've argue in front of Posner and watched a handful of others do so. He is unquestionably active, but my experience has been that he genuinely wants to hear your answer to his questions -- he's not just asking them as a means of making a point as certain others on the court are wont to do. His questions and your answers likewise seem to bear some relation to his eventual written decision, which is nice. Now, whether one thinks they are always good questions, or questions upon which the written decision should be based is another matter.


Posted by: Di Kotimy | Link to this comment | 05-27-09 1:38 PM
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Scalia's reputation for smarts is based, as best as I can reckon, on the corrupt nature of how public people acquire reputations in this country. Sorta like Bush's reputation for being a gutsy leader.

Edwards v. Aguillard is an oldie but a goodie, in which Scalia demonstrates his intellectual heft by arguing that the Louisiana legislature wasn't motivated by religion in mandating the teaching of creation science.

By the way, so far I'm the only person actually citing cases. IANAL, and IAespeciallyNAL who has studied the Supreme Court, so if anyone wants to show me a case where Thomas or Scalia demonstrated their subtle understanding of Constitutional law, I'd like to see it.

(When I wanted to emphasize my non-lawyerlyness, I first tried the abbreviation IespeciallyANAL, but that seemed likely to take the thread off on an unfortunate tangent.)


Posted by: politicalfootball | Link to this comment | 05-27-09 1:39 PM
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the degree to which those conclusions have become common probably has a fair amount to do with his race.

The fact that I know he doesn't ask questions may have something to do with his race. If, say, Anthony Kennedy never asked questions, would I have heard about it? Maybe, maybe not.

That said, it does piss me off that Thomas never asks questions. Maybe oral arguments aren't that important from the legal perspective, but as a laymen, I appreciate that they communicate to the public what the concerns are help shape our understanding of why decisions are made.

A little grandstanding here and there would demonstrate that he cares, and give people an understanding of what he is about. Instead, he seems fine with giving off the impression that he is lazy, bitter, and doesn't care that people think he's crazy. On a personal level, that's fine for him, but, as a public figure who holds one of the most important jobs in the country, I think he owes us more than that.


Posted by: Spike | Link to this comment | 05-27-09 1:40 PM
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137: would it help you to learn that William Brennan and Thurgood Marshall has similar reputations for silence?

Thomas is quieter than most, but he's certainly not alone.


Posted by: Brock Landers | Link to this comment | 05-27-09 1:43 PM
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Yeah, "bot" was the wrong word. I'm trying to put my finger on what it is -- it's just... he feels like a concoction. Like a simulacrum of nostalgic conservatism constructed by aliens who didn't get it quite right. I don't know, man. I think this might just be my own unproductive lunatic notion.


Posted by: redfoxtailshrub | Link to this comment | 05-27-09 1:43 PM
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Yeah, it's a bit fishy that when powerful white American political figures are legendarily silent, they get a reputation for being brilliant masterminds, but Thomas's silence is interpreted as cowardice, laziness or a lack of curiosity. FWIW, I think both interpretations are misleading.


Posted by: A White Bear | Link to this comment | 05-27-09 1:50 PM
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Did no know that about Brennan and Marshall.

What we need is video in the Supreme Court chamber, so I can develop my own opinions on who is paying attention, and who is not, instead of having them filtered.


Posted by: Spike | Link to this comment | 05-27-09 1:53 PM
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140: I can't speak to Brennan, et al., but I thought the salient part of Thomas' silence was that he was actually asleep.


Posted by: oudemia | Link to this comment | 05-27-09 1:54 PM
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the corrupt nature of how public people acquire reputations in this country

What's the pure version of reputation acquisition? (Serious question.)

I think this might just be my own unproductive lunatic notion.

There is something deeply weird about the guy, but it strikes me as more a really acute case of the bright, poor, rural kid who's achieved a lot of success but always feels out of place and like people are looking at him funny.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 1:54 PM
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Yeah, it's a bit fishy that when powerful white American political figures are legendarily silent, they get a reputation for being brilliant masterminds

Justice Marshall may not be the best example here...


Posted by: Spike | Link to this comment | 05-27-09 1:55 PM
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Even before I read Di's 127, I wanted to say something in favor of questions at oral argument. I don't want to make too strong a claim, but it seems to me that the lawyers' prepared statements are the very least likely part of oral arguments to add to the written record. Indeed, I learned from the Unfogged Bar that you're not allowed* to say anything new before the SC - unless they ask. Point being, the justices' questions are the only source of new information once the paperwork is filed. Yes, they grandstand, and no, it probably doesn't often flip a case, but the oral exchange at least presents the possibility of informational interaction.

Thomas remaining silent doesn't hurt much, but 9 silent justices would suck.

* take this statement with a grain of salt


Posted by: JRoth | Link to this comment | 05-27-09 1:56 PM
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143: To be fair, Thomas is probably bitter because people mess with him a lot. Like that time someone put pubic hairs on his coke can...


Posted by: Spike | Link to this comment | 05-27-09 1:58 PM
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Personally, I hate silent judges -- I don't like delivering a prepared speech, and do much better answering questions off the cuff. But that's personal preference, not a belief that the questions are a necessary part of the process.


Posted by: LizardBreath | Link to this comment | 05-27-09 1:58 PM
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I had heard, early on in Thomas's tenure, that his silence was a protest of his mistreatment during his confirmation. But since Google won't back me up on this, I guess it's probably just a story.

Were Brennan and Marshall really as quiet as Thomas? Even if my memory is faulty on why Thomas doesn't speak, the unusual nature of his approach was noted very early in his tenure.


Posted by: politicalfootball | Link to this comment | 05-27-09 1:59 PM
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To be fair to Thomas (in light of 145), he claims the main reason he's silent is that nearly all the questions he wants to ask are eventually asked by other Justices (and that when they're not, he asks). That could just be a self-serving statement, but if taken at face value it implies that he'd behave quite differently as a single judge (or perhaps even on a three-judge panel). Nine judges is a lot, really.

There was that one criminal case in which Thomas (semi-)famously asked the single question (his only question in months, IIRC): "Is the defendant black?" (This information wasn't in the record, and the answer was "yes", of course.) I can't remember the name of the case.


Posted by: Brock Landers | Link to this comment | 05-27-09 2:02 PM
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What's the pure version of reputation acquisition? (Serious question.)

Presumably mediation by a (much) less corrupt Establishment. The Village picks their favorites, and sticks with their picks no matter what the contrary evidence (Yesterday someone - JMM? - put up a post of Bush's popularity trajectory, and it's astonishing how fast he dropped below 60% approval - basically by mid-2003; yet he was a "popular President" right up until Katrina)


Posted by: JRoth | Link to this comment | 05-27-09 2:03 PM
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151: I tend to think it was ever thus, to one degree or another.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 2:07 PM
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I can't remember the name of the case.

Whitey v. Jones , I believe.


Posted by: JRoth | Link to this comment | 05-27-09 2:07 PM
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152: Oh, clearly. But it's hard for me to believe that it's always been as bad as it is now, because it couldn't be worse. Which, per the Law of Averages, suggests it's sometimes been better.

I think that the problem is that the bipartisan-fetishizing Establishment insists on consensus in reputation, with absurd results. I believe that Newt Gingrich proves my point (seriously, has such an absurd, powerless figure ever been as lionized by the Beltway press?


Posted by: JRoth | Link to this comment | 05-27-09 2:10 PM
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+)


Posted by: JRoth | Link to this comment | 05-27-09 2:10 PM
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because it couldn't be worse

Rule 1 of Life, the Universe, and Everything: it can ALWAYS get worse. But it is toward the bad side at the moment.


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 2:12 PM
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Personally, I hate silent judges -- I don't like delivering a prepared speech, and do much better answering questions off the cuff. But that's personal preference, not a belief that the questions are a necessary part of the process.

I hate arguing before silent judges, too -- but because I do believe the questions are necessary. If I'm just delivering a prepared speech, why are we there? The judge already read (or at least has the opportunity to read) my written argument. If there's nothing in the written argument the court wants me to clarify or whatever, why should I just stand up there repeating myself? (And when I have drawn a cold panel like that, I will generally briefly summarize my argument, and tell the court that Ill shut up now unless they have questions. At which point they frequently breathe a sigh of relief and say, no, thanks, please go sit back down.)


Posted by: Di Kotimy | Link to this comment | 05-27-09 2:14 PM
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158
If I'm just delivering a prepared speech, why are we there?

I always assumed it was a matter of tradition, like the columns out in front of the building.


Posted by: Cyrus | Link to this comment | 05-27-09 2:20 PM
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So the other day I was at the bath house with Apo, and instead of the usual reacharound I just gave a speech and afterwards I was like "If I'm just delivering a prepared speech, why are we there?"


Posted by: Sifu Tweety | Link to this comment | 05-27-09 2:25 PM
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TRADITION!


Posted by: apostropher | Link to this comment | 05-27-09 2:31 PM
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What's the pure version of reputation acquisition? (Serious question.)

The Money Right has funded a corrupt infrastructure - a vast, rightwing conspiracy, if you will - devoted to promoting third-rate hacks as intellectuals. The Federalist Society is the legal manifestation.

The fields of history, economics and journalism are all subject to something similar. Promoting the hack-Right line everywhere, you've got the Weekly Standard, the Heritage Foundation, the Hoover Institution, Regnery Publishing, etc. These are all institutions that were consciously created with the idea of making people and ideas intellectually respectable despite their inherent lack of intellectual respectability.

Scalia is an intellectual in roughly the same way that Jonah Goldberg and Robert Kagan are intellectuals. That is to say, he's a buffoon who parrots a line that moneyed interests want to inject into the national conversation. John Yoo is a professor at Berkeley, for heaven's sake, but even if the torture memos had never become public, he would still be a hack - but it's not an accident that he gets jobs that require a reputation as an intellectual.

LB eloquently stated the counter-case in 105.

It's the distinction between being incompetent and being on the other side.

No. My problem with Charles Murray, for example, isn't that he's a racist. It's that he's a hack. He's wrong. His reputation as an intellectual exists because that reputation was manufactured, not merited. To borrow LB's construction, he's on the other side because he's incompetent, not merely because I disagree with him.

To come back to the original question, I don't suppose there really is a "pure" version of reputation acquisition. Communication among human beings is inherently flawed, hence the ability of moneyed interest to take advantage of those flaws. But Paul Krugman, say, is a public intellectual because of serious-minded study of an intellectual discipline. He came by his reputation by earning it.


Posted by: politicalfootball | Link to this comment | 05-27-09 2:37 PM
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Scalia is an intellectual in roughly the same way that Jonah Goldberg and Robert Kagan are intellectuals.

Scalia's a much better writer than either of those two.


Posted by: Brock Landers | Link to this comment | 05-27-09 2:40 PM
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A little grandstanding here and there would demonstrate that he cares, and give people an understanding of what he is about. Instead, he seems fine with giving off the impression that he is lazy, bitter, and doesn't care that people think he's crazy. On a personal level, that's fine for him, but, as a public figure who holds one of the most important jobs in the country, I think he owes us more than that.

Come on. If he's doing his job, who cares how he performs his role? It's the supreme court, not reality tv. Plus he didn't come here to make friends.


Posted by: mcmc | Link to this comment | 05-27-09 2:43 PM
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Are there any famously good judges who are famously not-good writers?


Posted by: tierce de lollardie | Link to this comment | 05-27-09 2:43 PM
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Scalia's a much better writer than either of those two.

Well, Scalia certainly has a reputation as a good writer.


Posted by: politicalfootball | Link to this comment | 05-27-09 2:44 PM
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(161 was a falsely confident comment. I don't know that I've ever read anything by Kagan. Your putting him in that sentence next to Goldberg made me assume the worst.)


Posted by: Brock Landers | Link to this comment | 05-27-09 2:47 PM
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Posted by: | Link to this comment | 05-27-09 2:49 PM
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Kagan, in my opinion is worse than Goldberg, if we're only evaluating writing style. Hell, if that's the standard, Coulter beats both of 'em.


Posted by: politicalfootball | Link to this comment | 05-27-09 2:49 PM
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OT: I'm working on an exercise for my class next month and want some guinea pigs. Take a quiz! About life! And tell me if it offers anything or needs tweaking.


Posted by: A White Bear | Link to this comment | 05-27-09 2:49 PM
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164?

It's true that much of what makes his opinions more interesting that other justices' opinions is that he's willing to be a bit less conventional, more literary, and often far more personal (and scathing). None of which is itself evidence of auperior intellectual capacity, and some of it clearly reeks of personal grandstanding. But, next to Jonah fucking Goldberg, he's a vey good writer.


Posted by: Brock Landers | Link to this comment | 05-27-09 2:52 PM
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160
Paul Krugman, say, is a public intellectual because of serious-minded study of an intellectual discipline.

Shhh! Emerson could be reading this!


Posted by: Cyrus | Link to this comment | 05-27-09 2:52 PM
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170: Yeah, my reference to economics as an intellectual discipline was an effort to smoke out Emerson. I know he's lurking out there somewhere.


Posted by: politicalfootball | Link to this comment | 05-27-09 2:56 PM
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I'm with Brock -- I think Scalia's generally a clear and engaging writer. Dishonest as the day is long, but clear and engaging.


Posted by: LizardBreath | Link to this comment | 05-27-09 2:58 PM
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But, next to Jonah fucking Goldberg, he's a vey good writer.

I'd be curious to see the collected wit and wisdom of Scalia. I suppose I've read about some clever cheap shots he's taken at lawyers in oral argument, but the few times I've looked over his decisions, they've seemed unremarkable. And, as I suggested in 164, the fact that he's widely regarded as a fine legal writer cuts no ice with me at all.


Posted by: politicalfootball | Link to this comment | 05-27-09 2:59 PM
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151 et seq: Mods, it would be really great if troll/spam comments could be nulled without losing the numbering. I know it would be a little ugly to have a bunch of

998 [redacted]

...but I'd rather see that than have numeric references to comments broken.


Posted by: Hamilton-Lovecraft | Link to this comment | 05-27-09 3:03 PM
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"Redacted" s/b "ToSsed"?


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 3:07 PM
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Conflating good writing with good judicial opinion writing is a huge mistake. There's nothing that drives me more crazy when trying to apply a case in the real world than having to unpack some Judge's witty zinger or some darling that the judge failed to kill. Scalia is particularly bad on this front.

If you're the moving party/appellant and have a reply brief, oral argument sans questions is usually pretty pointless. But if you're on the other side, you can use it as a reply brief. Questions that are clarifications are useful, but at the SCOTUS oral arguments the questions seem largely about grandstanding.


Posted by: Robert Halford | Link to this comment | 05-27-09 3:09 PM
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They do their best, HL. They try really hard. Really fucking hard. And what do you do? Criticize, niggle away at their self-confidence. Well, one day we'll all wake up and they won't wake up, and then where will we be? Awake, that's where, and hating it.


Posted by: Sifu Tweety | Link to this comment | 05-27-09 3:09 PM
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174: We do some of that -- SOP is to delete the comment completely if there are only a couple comments after the offending comment, and redact the text of it otherwise. But there are always errors.


Posted by: LizardBreath | Link to this comment | 05-27-09 3:13 PM
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177. I hate being awake already.


Posted by: Hamilton-Lovecraft | Link to this comment | 05-27-09 3:13 PM
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Scalia's dissent in PGA v. Martin is a good example of what some people like about Scalia's writing (and others, like Halford, don't like):

. . . we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf.

Complaints about this case are not "properly directed to Congress," ante, at 27-28, n. 51. They are properly directed to this Court's Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are "places of public accommodation" to the competing athletes, and the athletes themselves "customers" of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable "essential" and "nonessential" rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one's lack of ability (or at least no one's lack of ability so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and "everybody was finally equal." K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997).

Note that, no matter whether you agree with Scalia that it is absurd for the Court to be addressing the issue, there isn't really a good legal argument in this passage. That's Scalia.


Posted by: Grumps | Link to this comment | 05-27-09 3:15 PM
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||
Jezebel says shaved balls are the wave of the future. Please say it ain't so.
|>


Posted by: togolosh | Link to this comment | 05-27-09 3:31 PM
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180: Okay, that's passable snark. I'll give Scalia his props as a witty judicial writer.

Poor ol' Vonnegut. He'll never live down having written Harrison Bergeron.


Posted by: politicalfootball | Link to this comment | 05-27-09 3:31 PM
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180 -- thanks, that's exactly the kind of thing I had in mind. It's at its worst in dissents, where it matters less, but that writing style creeps into Scalia's opinions for the Court, too.


Posted by: robert halford | Link to this comment | 05-27-09 3:39 PM
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168: Great. Like I don't already waste too much time on FB quizzes, now there will be a set of Mineshaft quizzes, too?


Posted by: Di Kotimy | Link to this comment | 05-27-09 3:55 PM
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shaved balls are the wave of the future

I am the cutting edge.


Posted by: apostropher | Link to this comment | 05-27-09 4:17 PM
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How can we be nearly 200 comments in, and nobody has mentioned Oyez? Get your audio recording of the Supreme Court right here, ladies and gentlemen! No waiting, no paying, free to the public in the glorious tradition of noncopyrighted* federal governmental material! Podcasts! RSS! iTunes!

*IANA(IP)L.

Also, boo hiss:

The Supreme Court ended its use of the reel-to-reel taping system in October 2005, switching to a digital recording environment with audio recorded to the mp3 format on Flash media. The selection of mp3 as a recording standard (as opposed to a delivery standard) is unfortunate. Mp3 is a lossy format, that is to say, some data will be lost when converting sounds to mp3. As technology improves our ability to study and extract meaning from sounds, the reliance on the mp3 files will impede such investigation. The Court has also selected a low standard for its mp3 recordings, further impeding the quality of the resulting audio files. Given the low cost of recording media, the selection is difficult to fathom. We informed the Chief Justice of the problems associated with mp3 recordings but have never received a reply.


Posted by: Witt | Link to this comment | 05-27-09 4:17 PM
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There's nothing that drives me more crazy when trying to apply a case in the real world than having to unpack some Judge's witty zinger or some darling that the judge failed to kill.

I think it was Charley Carp at ObWi one time who delivered a little discourse on the art of asking proper questions of the witness so they would look right in the trial transcript for the appellate judges to understand what was going on. It sounds from the above as though that kind of thinking-ahead is equally valuable at another stage of the feedback loop, for judges writing the decisions to be as comprehensible as possible for the benefit of future generations.


Posted by: Witt | Link to this comment | 05-27-09 4:20 PM
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180: My reaction is that he would do well pay better heed to Samuel Johnson, Read over your compositions, and where ever you meet with a passage which you think is particularly fine, strike it out*. Much of his writing simply screams, "Look at me!" Not what the country needs from an Associate** Justice of the Supreme Court.

*I first encountered this quote in The Structure and Interpretation of Computer Programs. Even more relevant in that field.

**Associate! Associate! Associate! You criminally-minded slimeball. Forever second fiddle to that sappy, suck up, do-gooder Ken Starr-clone Midwestern pink boy who had to freaking adopt his two kids, while you brought forth nine from your manly loins. Second fiddle. Forever. Now and until the end of history. You hubristic little freak.


Posted by: JP Stormcrow | Link to this comment | 05-27-09 4:26 PM
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Mp3 is a lossy format

But it's more than sufficient to accurately reproduce conversations.


Posted by: apostropher | Link to this comment | 05-27-09 4:27 PM
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188: to pay better heed


Posted by: JP Stormcrow | Link to this comment | 05-27-09 4:28 PM
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181 needs its own thread.


Posted by: PGD | Link to this comment | 05-27-09 4:34 PM
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181 had its own thread--see 185.


Posted by: Brock Landers | Link to this comment | 05-27-09 4:36 PM
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Ironically, it is precisely of made-up games that it is easiest to tell what is essential and what not.


Posted by: nosflow | Link to this comment | 05-27-09 4:38 PM
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188: I can't remember who it is that phrases this advice as "Murder your darlings." Maybe Anne Lamott.


Posted by: Witt | Link to this comment | 05-27-09 4:39 PM
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Further to 186: If anyone wanted to measure whether Brenann and Marshall were really as silent as Thomas is, it probably wouldn't be that hard to do from the transcripts at the Oyez site.

Dump it all into a data file, clean it up a little, and decide whether you're going to go by number of questions asked, proportion of questions in comparison to other justices, number of words spoken during oral argument, or what.

I, myself, am doubtful. Although as someone said above, I do think that the fact that I know that Thomas doesn't ask questions is itself indicative of racism.


Posted by: Witt | Link to this comment | 05-27-09 4:42 PM
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194 - Fitzgerald, right? "Kill all your darlings"? Also the title of a Luc Sante collection.


Posted by: snarkout | Link to this comment | 05-27-09 4:45 PM
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FWIW, as a defender of Scalia's writing (though the criticisms in 188 and halford's comments are true, to an extent), I don't think 180 is especially good. It's muddy, sickenly full of self-importance. It's a good example of what can go wrong with his writing style, rather than an example of his good writing.

But I'm too lazy to look up anything else to quote, so you'll have to take my word for it.


Posted by: Brock Landers | Link to this comment | 05-27-09 4:47 PM
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Posted by: | Link to this comment | 05-27-09 4:56 PM
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188 is a beautiful bit of Schadenfreude. Actually, Schadengloating, or whatever.


Posted by: JRoth | Link to this comment | 05-27-09 4:59 PM
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105

Something that's worth pointing out about Thomas, though, is that while it's racist and untrue to say that he's stupid or unskilled, it is not racist and it is true to say that he was an affirmative action hire -- it's pretty unambiguously clear that he was groomed for an SC appointment and then appointed as a black conservative, not for race-blind reasons. ...

Similarly Sotomayor is an affirmative action hire.


Posted by: James B. Shearer | Link to this comment | 05-27-09 5:04 PM
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Posted by: | Link to this comment | 05-27-09 5:21 PM
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To a degree, I suppose, but take the name off her resume and everyone would agree that she had the necessary credentials to be a plausible Supreme Court nominee. The same wasn't true of Thomas. (Which, again, doesn't mean that he isn't the very model of a Modern Wingnut Justice or that he doesn't belong on the Court as much as Alito or Scalia or Roberts; affirmative action can be a good thing.)


Posted by: Not Prince Hamlet | Link to this comment | 05-27-09 5:23 PM
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Similarly Sotomayor is an affirmative action hire.

James, as far as 66 goes, I think you misremember the complaints about Thomas. The liberal gripe against Thomas was not that he was selected because he was black, but that he was a hypocrite for opposing affirmative action rationales for hiring. Thomas spent his career, in fact, trying to undermine affirmative action for other people, and that's precisely the thing that put him in position for his appointment. He's a nasty piece of work, and it's not reasonable to expect folks to ignore that.

And, of course, the fact that Bush was a hypocrite for transparently lying about his motives was duly noted at the time by liberals.

Sotomayor seems pretty obviously qualified for a position on the court. It's hard to imagine a qualifications gripe being raised against a white guy similarly situated. Is that your argument, that her record wouldn't be sufficient if she were a white male? Really?


Posted by: politicalfootball | Link to this comment | 05-27-09 5:25 PM
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I, meanwhile, favor affirmative action for Italics.


Posted by: politicalfootball | Link to this comment | 05-27-09 5:26 PM
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Kill Your Darlings.

One of the screenwriters is an old friend.


Posted by: Wrongshore | Link to this comment | 05-27-09 5:32 PM
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Interestingly, Thomas uses the "killing your darlings" metaphor in discussing the painful work of editing in his clip at lawprose.com. I'll look for a link when I get home...


Posted by: di kotimy | Link to this comment | 05-27-09 5:34 PM
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I began to despise Thomas during his confirmation hearings. There was his transparently bullshit claim about a high tech lynching, which situated him as the oppressed minority when he'd been so active in undermining minority rights during his time at the EEOC and was so clear in his opposition to affirmative action.

Then there was his response to one predictable question, which went something like this: "Roe v Wade? No, never thought about it, never discussed it with anyone, don't have a single thought about it. Was it an important case?"

But there was one touching moment. It was very early in the morning, after midnight mountain time, on the day someone named (I think) Dogget testified in an effort to smear Anita Hill. Mara Liasson and Nina Totenberg were on PBS doing responsible, serious commentary. Reviewing the testimony, they broke into an uncontrollable case of the giggles. The testimony was so outrageously implausible and predictable. They couldn't keep it together. They were so cute


Posted by: Michael H Schneider | Link to this comment | 05-27-09 5:43 PM
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I heard some Fox today and the commentators were going on about Ricci and how this shows that Sotomayor is a racist because she decided against the white guys. I wanted to ask, what about the other judges? Best as I can tell Judges Pooler and Sack are white. Are they race traitors?


Posted by: md 20/400 | Link to this comment | 05-27-09 5:44 PM
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mutter mutter stupid failure to preview mutter grumble


Posted by: md 20/400 | Link to this comment | 05-27-09 5:44 PM
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Last time this trope came up here, someone posted* (as Quiller-Couch) the relevant paragraph from Sir Arthur Quiller-Couch's On the Art of Writing which ends with:

'Whenever you feel an impulse to perpetrate a piece of exceptionally fine writing, obey it--whole-heartedly--and delete it before sending your manuscript to press. Murder your darlings.' [emphasis in original]

*And I had dutifully brought up the Johnson quote.
Norm!


Posted by: JP Stormcrow | Link to this comment | 05-27-09 5:49 PM
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143.1*:

Kernel commit privileges. Being the heart surgeon asked to operate on a heart surgeon. Heck, a Twitter entourage of people who've never met you.

Way, way back to 12 &ff, on Twisty's unhostessliness; what's now on her faq is ``Comments proceeding from "the unique male perspective" will be deleted. If you don't know what this means, do not post here.'' She has frequent and respected male commentors; they just don't lecture from that particular pulpit.

* 0-indexed, laydeez.



Posted by: clew | Link to this comment | 05-27-09 5:54 PM
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203

James, as far as 66 goes, I think you misremember the complaints about Thomas. The liberal gripe against Thomas was not that he was selected because he was black, but that he was a hypocrite for opposing affirmative action rationales for hiring. ...

The main complaint was that he was incompetent. Harry Reid on Thomas ( Meet The Press 12/05/2004 ) :

I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice.

Harry Reid on Scalia:

... I cannot dispute the fact, as I have said, that this is one smart guy. And I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute. So...

As for being a hypocrite I don't think you are necessarily a hyprocrite if you accept benefits that you don't think should be offered.


Posted by: James B. Shearer | Link to this comment | 05-27-09 5:56 PM
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The argument against Thomas was that he was a creepy sex maniac who would ask his employees if there was a pubic hair on his Coke.


Posted by: Walt Someguy | Link to this comment | 05-27-09 6:04 PM
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Clarence Thomas on why he doesn't ask questions.


Posted by: James B. Shearer | Link to this comment | 05-27-09 6:06 PM
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208: (I think) Dogget

Yep, that was when it got really bizarre.

Mr. Doggett testified Professor Hill believed, in the early 1980's, that a sexual attratction extisted between them when none existed. He provided testimony about a party in Washington in the mid 1980's in which Professor Hill approached him and implied she felt a sexual attraction toward him, when he felt he had shown no reciprocal attraction. The testimony provided evidence for the denigration of the character of Professor Hill, who was characterized as an unstable person.

And a reminder of why I might not be able to bring myself to vote for Specter:

Senator Specter: Mr. Dogget do you think it is possibility that Anita Hill imagined or fantasized Judge Thomas saying the things she has charged him with?
Mr. Doggett: [A bunch of self-serving speculative BS concluding with] Clarence is not a fool. And quite frankly, Anita Hill is not worth that type of risk.
Senator Specter: Thank you very much, Mr. Doggett. Very powerful.

The non-delusional Mr. Doggett describing the aftermath of his testimony 10 years later at Free Republic:

Thirteen months after the hearings, Bill Clinton was elected president. Six months after Bill took office, Anita Hill supporters inside his administration destroyed my firm and corrupt foreign officials tried to kill me. A few years later, my marriage failed.


Posted by: JP Stormcrow | Link to this comment | 05-27-09 6:11 PM
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Dot org. Dot org. Lawprose Dot Org. Darn it. Anyway, here, all the current supremes on writing.


Posted by: Di Kotimy | Link to this comment | 05-27-09 6:16 PM
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If Obama had appointed a white man with Sotomayor's credentials, everyone would be talking about how he had made a consensus, moderate pick, and was looking to avoid a bruising confirmation battle. If H.W. Bush had picked a white man with Thomas' credentials (eighteen months on the federal bench), everyone would think he had lost his mind.


Posted by: Gabriel | Link to this comment | 05-27-09 6:26 PM
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As for being a hypocrite I don't think you are necessarily a hyprocrite if you accept benefits that you don't think should be offered.

I suppose I could come up with a scenario where that would be true, but it ain't relevant to the case at hand. Thomas was certainly a hypocrite for accepting this particular benefit, especially given that the reason he was offered it was directly tied to his work to deny that benefit to others. And he was dishonest for denying the affirmative action implications of his appointment, as was GHW Bush.

And the cherry on top of the hypocritical sundae was when, after railing against the exploitation of race by black people, he spuriously invoked racial explanations - a "high-tech lynching" - to explain the nature of the abuse he received in the hearings.


Posted by: politicalfootball | Link to this comment | 05-27-09 6:26 PM
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Re 216, that site is awesome; I hadn't seen that before. Brian Garner is an incredible teacher of legal writing. I did one of his seminars a few years back, and his book is very good too. Absolutely the best, most practical writing advice I've ever found, bar none. Sometimes I wonder what the English teachers here would think of him.

Although, my crappy Unfogged commenting probably means that my recommending him here will be viewed as a slam.


Posted by: Robert Halford | Link to this comment | 05-27-09 6:33 PM
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217

... If H.W. Bush had picked a white man with Thomas' credentials (eighteen months on the federal bench), everyone would think he had lost his mind.

Souter appears to have had about 2 months on the federal bench when GHWBush nominated him.


Posted by: James B. Shearer | Link to this comment | 05-27-09 6:50 PM
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Souter appears to have had about 2 months on the federal bench when GHWBush nominated him.'

After seven years on the New Hampshire Supreme Court. But yes, "affirmative action hire" Sotomayor has logged almost as much time on the federal bench as the last four Republican nominees combined at the time of their selections.


Posted by: Gabriel | Link to this comment | 05-27-09 6:59 PM
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I did one of his seminars a few years back, and his book is very good too.

He's written about a dozen books--which one do you mean?

I like his books, but found the seminar I took with him almost useless.


Posted by: Brock Landers | Link to this comment | 05-27-09 7:13 PM
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I meant to say "the book that I have" which is The Winning Brief. Clearly I am the worst possible advocate for his services.

Good god, I hate Chris Andersen.


Posted by: Robert Halford | Link to this comment | 05-27-09 7:28 PM
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I just finished a book about a young British boy who finds out he's a wizard and goes to a school of magic. Apparently, there's like 6 more. I'm trying to see if I can't get people interested in them, but I can't think of the name (Harry something?). When I find the copy, I'll let you know.


Posted by: Moby Hick | Link to this comment | 05-27-09 7:30 PM
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I like some of Garner's books and use them regularly, but prefer PLI's Thinking Like a Writer for general legal writing advice. His seminars make me grind my teeth. We're all "incompetent" for not following his particular formatting rules, and he'll have Justice Scalia pop up on screen to tell you how using a hyphen in place of an en-dash or something will cause him to not take your argument seriously. Because the legal issues and the interests of the parties should not be determinative. Wise Italian men know that they should decide who wins based on who has better proofreaders (which is, coincidentally, almost always the big firm attorneys and government lawyers, not the counsel for the little guys).


Posted by: Amber | Link to this comment | 05-27-09 7:32 PM
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212: Those quotes are from 2004 and say nothing about what the objections were at the time of Thomas's confirmation hearings. Wanna try to find something contemporaneous?


Posted by: Josh | Link to this comment | 05-27-09 7:33 PM
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There's a lot about Garner's legal writing work that I like, and I enjoyed the seminar at least as much as any other CLE I've sat through. On the other hand, he just co-authored a book with Scalia and he has this idiotic idea about putting legal cites in footnotes.


Posted by: di kotimy | Link to this comment | 05-27-09 7:50 PM
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I don't remember obsession about format rules, or Justice Scalia. Maybe Garner's since changed the format.

Also, if Scalia is harping on the importance of minor grammar/usage issues, I think he's wrong. I seriously doubt that the kind of minor proofing errors that big firms are obsessed with (citation formats, etc.) are ever even close to outcome determinative, and I think that most of the obsession of large firms with these issues is driven by the opportunity to bill time to clients. Obviously, there's a point where a ton of typos make the brief poorly written, incomprehensible, obviously sloppy, or apparently unedited, but judges and their clerks are mostly struggling to get through a ton of difficult issues quickly, not obsessively checking through a lawyer's papers for minor grammtatical errors (unless Neb is now working in the Federal Court system).

Plus, how would that issue ever affect Scalia? Does he ever read a brief that has not been fanatically proofed 500 times over by a team of lawyers? Even the poorest litigant would have a team of lawyers to do that by the time a case gets to the SCOTUS. Maybe a cert petition by a pro se litigant, but that's going to be rejected by Scalia even if the poor guy managed to use the em dash properly.


Posted by: Robert Halford | Link to this comment | 05-27-09 7:52 PM
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Hours later, and the Unfoggetariat has chosen legal stylistics over pubic grooming. Noted.


Posted by: Bave Dee | Link to this comment | 05-27-09 9:14 PM
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Prose before hos?


Posted by: Wrongshore | Link to this comment | 05-27-09 9:33 PM
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Lamar Odom!

(likely has trimmed pubic hair)


Posted by: Robert Halford | Link to this comment | 05-27-09 9:40 PM
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I always thought "Public Hair" would make a good band name.


Posted by: Wrongshore | Link to this comment | 05-27-09 9:41 PM
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Hours later, and the Unfoggetariat has chosen legal stylistics over pubic grooming.

Indeed. Whether this turn of events is fairly described as "prose before hos" is a question. Mostly it's legal stylistics before all.


Posted by: parsimon | Link to this comment | 05-27-09 9:51 PM
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I have Garner's book on American Usage. It's crazily prescriptive, but I like arguing with it.


Posted by: Jackmormon | Link to this comment | 05-27-09 10:05 PM
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Everybody should probably just get out for a breath of air. Wind, some wind would be good as well.


Posted by: parsimon | Link to this comment | 05-27-09 10:11 PM
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Similarly Sotomayor is an affirmative action hire.

Complete bullshit.


Posted by: PGD | Link to this comment | 05-27-09 10:18 PM
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PGD, please to note in your 236 that you are replying to Shearer in 200.


Posted by: parsimon | Link to this comment | 05-27-09 10:31 PM
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OT: I think I've said before: this Ogged recommended Jackson Frank thing is really good.


Posted by: parsimon | Link to this comment | 05-27-09 10:32 PM
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155: Rule 1 of Life, the Universe, and Everything: it can ALWAYS get worse. But it is toward the bad side at the moment.

A-fucking-men.

160: But Paul Krugman, say, is a public intellectual because of serious-minded study of an intellectual discipline.

You're supposed to call him Great Paul now, at least according to the Chinese.

160: He came by his reputation by earning it.

I've heard that kind of argument a lot from people opposing affirmative action. Not on comment on the truth of your comment, was just striking.

164: And, as I suggested in 164, the fact that he's widely regarded as a fine legal writer cuts no ice with me at all.

Read Bush v. Gore, again, presumably. He didn't have time to be Mr. Stylin' when he wrote it. The thing is 1/2 Making Shit Up, 1/2 contorted non-functional logic, 1/2 mendacious bullshit. (Yes, that's 150%!) I think you could have come up with an argument (a reasonable argument, not necessarily a correct argument) to reject the actions of the Florida courts or at least imposed such a stringent equal protection standard that they might as well not have bothered or something along those lines. He also could have simply refused to take any action except saying that the FL Lege could do what they wanted and the SC would go along with it. Instead, he just made up several complete utter bullshit lines of argument, hallucinated some spurious interpretations of statute and then didn't even bother to weld the entire mess together. I don't see how anyone more than half-witted can read that opinion and not think the man is a charlatan and a snake. At best.

207: There was his transparently bullshit claim about a high tech lynching

The man is black. He was under attack in one of those DC/media feeding frenzies that are so very popular. Reacting to it like it was a lynching (recall what happens to black men when they get in an elevator) was probably about the least bullshitty thing he ever said. (Did Anita Hill get the virtual lynch mob treatment? Yes! Is Sotomayor facing a virtual lynch mob? YES!)

People may (often do) or may not deserve something like that when it happens, but the thing is still what it obviously is. So you oughta call it that.

max
['See the comment threads of Yggles.']


Posted by: max | Link to this comment | 05-27-09 10:53 PM
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239: You know, I'm kind of in sympathy with Michael on the whole "lynching" thing. Trying to invoke the ghost of Jim Crow on your behalf when you're a willing tool of the party of the Southern Strategy is really fucking distasteful.


Posted by: DS | Link to this comment | 05-27-09 11:00 PM
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Okay, that's passable snark. I'll give Scalia his props as a witty judicial writer.

Argh, no it isn't.

Animal Farm doesn't fucking mean what he thinks it means, Kafkaesque is just wrong (borgesian, perhaps, but Kafka?)

About the only reference to another writer which is close to accurate is Alice and Wonderland --- but then, if you don't want to engage in logical investigations of phenomena, don't become a judge.

And golf/government, law/links? Alliteration amuck!

Based on those passages, Scalia writes like someone who believes in a jack-booted fascist octopus.


Posted by: Keir | Link to this comment | 05-27-09 11:10 PM
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Also, Scottish law is Roman, and therefore irrelevant to US law, which is based on Eglish common law (except possibly in Louisiana, with which the framers were not concerned). The framers knew this - in fact they presumably decided it, albeit by default - and therefore to suggest that they took into account edicts of the Scottish crown in defining the role of the judiciary shows woeful and demonstrable ignorance of their original intent.

[/snark]


Posted by: OFE | Link to this comment | 05-28-09 1:49 AM
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re: 243

Plus, I shudder to think what US lawyers would do with the 'Scottish' or third (aka 'bastard') verdict.


Posted by: nattarGcM ttaM | Link to this comment | 05-28-09 3:02 AM
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re: 243 vs. 243: Scotch fight!


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:03 AM
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re: 244

I wondered why my nose was bleeding ...


Posted by: nattarGcM ttaM | Link to this comment | 05-28-09 3:07 AM
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245: chassé with step!


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:10 AM
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Crochet bras avant!

http://jeetchamploo.blogspot.com/2008/02/savate-terminology.html


Posted by: nattarGcM ttaM | Link to this comment | 05-28-09 3:13 AM
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Bon chance, guerrier!


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:15 AM
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Apportez ma integrale, domestique!


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:24 AM
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Et mon gants, naturelement.


Posted by: nattarGcM ttaM | Link to this comment | 05-28-09 3:28 AM
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Et mes chaussures de combat!


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:31 AM
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re: 251

Heh heh. A lot of us wear ordinary training shoes, but proper Rivats and the like [chaussures de combat] really bloody hurt when someone gets in a solid shot. They soles are really hard.

http://www.rpsboxe.com/Files/22202/7353100956611.jpg


Posted by: nattarGcM ttaM | Link to this comment | 05-28-09 3:36 AM
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252: heh. There were probably 6 or 7 years of my life where I wore nothing but kung fu shoes (these) just because they were so light and comfortable. Different worlds!

I actually have a brand new pair, but I haven't worn them, because... well, I dunno. Different time in my life?


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:39 AM
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Yeah, I have a pair of light kung-fu type shoes that I wear walking about and at work. For training I wear normal squash shoes as squash shoes have the right type of heel cup and ankle support for sudden lateral movement, have hard enough toe caps to avoid hurting my toes when kicking, and don't have sharp edges. These ones:

http://ecx.images-amazon.com/images/I/31nPoMlsU5L._SS400_.jpg

The sharp edges on ordinary running shoes raise really nasty weals on the skin when idiots wear them sparring.


Posted by: nattarGcM ttaM | Link to this comment | 05-28-09 3:45 AM
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Yeah I can imagine.


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:48 AM
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I think wrestling shoes, squash and racquetball shoes, kung fu shoes, and maybe some other kinds are all fairly similar insofar as they have a bit of shape but the thinnest sole they can manage. Maybe I'm making that up about squash and racquetball shoes.


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:49 AM
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Posted by: | Link to this comment | 05-28-09 3:58 AM
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Squash shoes have heavier soles, rather closer to running shoes than kung-fu shoes, but the soles (of the ones I've worn at least) aren't as built up as high-tech running shoes, and they have a different type of sole for both grip and rapid movement on indoor surfaces. Mine have the same sort of weight as old-school running shoes or a pair of Converse. There's a decent amount of sole there but it's not some huge springy/spongy platform like a pair of Nikes or the like.


Posted by: nattarGcM ttaM | Link to this comment | 05-28-09 3:59 AM
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Okay. Modern day running shoes are so weird, I don't really know how to contrast them.


Posted by: Sifu Tweety | Link to this comment | 05-28-09 4:00 AM
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Crochet bras avant!

These are terribly impractical -- no support.


Posted by: LizardBreath | Link to this comment | 05-28-09 5:22 AM
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239: I don't see how anyone more than half-witted can read that opinion and not think the man is a charlatan and a snake.

This is absolutely right, but it's part of why I think of him as a good writer; he's contemptibly dishonest, but he doesn't obfuscate well. On an opinion where he's not cheating, his reasoning is clear and easy to follow. On an opinion where the outcome is determined by his ideology rather than legal argument, he's clear until he gets to the point where he'd have to start lying, and then he lies, rather than blowing smoke. His opinions are often dishonestly result-driven, but the aren't muddy.


Posted by: LizardBreath | Link to this comment | 05-28-09 5:27 AM
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How about the Direct bras avant? Both probably better than the Swing bras arriere.


Posted by: JP Stormcrow | Link to this comment | 05-28-09 5:27 AM
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261: I guess

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.[emphasis added]
would fall into the latter category? (Not quite lying I guess, but a rather clear statement that "I am totally in the bag" on this.) IANAL, but that bit was even more astonishing to me than the "one-time only not available in a Courtroom near you" Equal Protection weasel.


Posted by: JP Stormcrow | Link to this comment | 05-28-09 5:37 AM
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Right. "Lying" wasn't exactly the right word -- "openly abandoning legal reasoning in favor of 'what I say goes'" is better.


Posted by: LizardBreath | Link to this comment | 05-28-09 5:38 AM
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Jezebel says shaved balls are the wave of the future.

From the comments at Jezebel:

Now boys, if you're worried about cuts or ingrown hairs, there's always waxing.
Brozilian waxing.

Posted by: Sir Kraab | Link to this comment | 05-28-09 6:29 AM
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His opinions are often dishonestly result-driven, but the aren't muddy.

I cited Edwards v Aguillard above, and I'd agree that decision fits this description. Scalia is workmanlike in crafting his decisions. He lies like a real professional.



Posted by: politicalfootball | Link to this comment | 05-28-09 6:37 AM
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it's part of why I think of him as a good writer; he's contemptibly dishonest, but he doesn't obfuscate well.

A good writer can obfuscate well.


Posted by: di kotimy | Link to this comment | 05-28-09 7:07 AM
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Does he ever read a brief that has not been fanatically proofed 500 times over by a team of lawyers?

Speaking from my unique and empathic view as a former paralegal who proofed SCOTUS briefs, the answer is yes. Supreme Court briefs have a very particular format (at least back in my day; the Court may accept electronic filings now), and my firm's were typeset (by a union printer, natch). So they had to be entirely re-proofed to make sure no errors were introduced during the typesetting. That was generally done by 1 or 2 attorneys and paralegals, and often done at the print shop at night when we were up against a filing deadline.

I assure you that we and the printer were damn good and that errors were rare, but you could probably find a few if you went through the collected works.

Typeset or not, plenty of Supreme Court briefs are filed by people or organizations without deep pockets.


Posted by: Sir Kraab | Link to this comment | 05-28-09 7:16 AM
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267: Can -- obfuscation is a skill -- but the result of obfuscation is bad writing. I think better of his writing, although not of his character, because he doesn't.


Posted by: LizardBreath | Link to this comment | 05-28-09 7:21 AM
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268: Yeah, with the tiny tiny little pages. I'm surprised they've stuck with that format -- it seems as if it'd be annoying to read.


Posted by: LizardBreath | Link to this comment | 05-28-09 7:22 AM
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Surely plenty of amicus briefs make their way before the Supreme Court without scrupulous proofreading. (They're likely proofread, but not necessarily by anyone who knows the detailed niceties of legal formatting.)


Posted by: Brock Landers | Link to this comment | 05-28-09 7:23 AM
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270: I love them. They're great for writing notes in the margins.


Posted by: Brock Landers | Link to this comment | 05-28-09 7:24 AM
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271: Like me! My blue-booking is a scandal and a shame -- the one SC brief I worked on was very short, so it's barely possible I didn't screw anything up, but it's unlikely based on prior history.


Posted by: LizardBreath | Link to this comment | 05-28-09 7:41 AM
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236

"Similarly Sotomayor is an affirmative action hire."

Complete bullshit.

Thomas was picked mostly because he is black, Sotomayor mostly because she is an Hispanic woman. What's the difference?


Posted by: James B. Shearer | Link to this comment | 05-28-09 7:51 AM
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274: Compare their resumes, and you tell me.


Posted by: peep | Link to this comment | 05-28-09 7:53 AM
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Further to 268 . . .

The briefs are required to be in booklet form with covers in different colors depending on the type -- motion, merits, amicus, etc.

Larry G/o/l/d (then of the A-F-L-C-I-O) used salmon for the cover of his amicus briefs and when the clerks saw that color in the pile of briefs, they would reach for that one first (p. 13), knowing it would be both well written and well argued. (How he got away with that color, which isn't in the rules, I don't remember.)


Posted by: Sir Kraab | Link to this comment | 05-28-09 7:55 AM
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Thomas was picked entirely because he is a black conservative. Once you had those two requirements in place, the choice was very limited.

Sotomayor was picked because she was a centerist who belonged some group we wanted to promote. Here the choices were quite wide. Affirmative action was a factor in her choice (as it should have been), but not the only factor.


Posted by: rob helpy-chalk | Link to this comment | 05-28-09 7:57 AM
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My blue-booking is a scandal and a shame

I quite liked blue-booking and proofreading, which is why neb would be my soulmate if he weren't such a little bitch.


Posted by: Sir Kraab | Link to this comment | 05-28-09 7:58 AM
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You're right that neither candidate was picked in a race-blind fashion. The difference, though, is that Thomas's professional credentials (head of the EEOC, short tenure on a circuit court) are such that he would have been an absolutely improbable pick for the Supreme Court in the absence of demographic factors (doesn't make him stupid, doesn't mean he's done a bad job. But looking at his pre-SC career, it's not the sort of resume that you'd expect to lead to an SC appointment). Sotomayor, on the other hand, has the professional credentials you'd expect from an SC nominee.


Posted by: LizardBreath | Link to this comment | 05-28-09 7:59 AM
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276: IIRC, amicus briefs are sort of buff. I bet you could get away with an orangey, salmony sort of buff that would stand out, while still being identifiably the 'right' color for an amicus brief.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:00 AM
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Affirmative action was a factor in her choice (as it should have been)

Let's not lose sight of this as we debate.


Posted by: Sir Kraab | Link to this comment | 05-28-09 8:01 AM
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As for being a hypocrite I don't think you are necessarily a hyprocrite if you accept benefits that you don't think should be offered.

Matthew Holt of the Health Care Blog thinks that High dedcutible health plans with health savings accounts are a bad idea as a matter of public policy, since health insurance is supposed to spread the risk, but taking the tax system we have he has one, since it makes the most sense for him. He doesn't like paying for the Iraq war either, but he still has to pay the taxes.


Posted by: Bostoniangirl | Link to this comment | 05-28-09 8:04 AM
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Re: Scalia's writing, it's worth pointing out that most of the writing attributed to Scalia is actually written by his clerks. As opposed to many other Justices/judges, Scalia's writing is so distinctive that it's easier to tell when he's done the work himself.

I worked for a sole-practitioner appellate attorney on a brief that was proofread by two attorneys: my boss and me (and likely emailed to a few of my bosses friends for their suggestions). At one point my boss scoffed at me for focusing too much on proper blue-booking and other minute details, for the reasons Halford gives in 228. That error-laden brief resulted in a 9-0 decision overturning a circuit court!


Posted by: Grumps | Link to this comment | 05-28-09 8:04 AM
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281: Right. I think Thomas was a bad pick because his politics are ghastly and his judicial philosophy is lunatic, but I don't find it offensive or wrong that he was an affirmative action hire.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:05 AM
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but I don't find it offensive or wrong that he was an affirmative action hire.

Even coming from people who steadfastly oppose affirmative action? I find that offensive and (the inherent deception) wrong.


Posted by: Brock Landers | Link to this comment | 05-28-09 8:11 AM
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Oh, I find their opposition to affirmative action and denial that that was what was going on in Thomas's case offensive, hypocritical, and wrong. But not Thomas's nomination itself.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:15 AM
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Sotomayor, on the other hand, has the professional credentials you'd expect from an SC nominee.

Her professional credentials exceed those of most of the recent SC nominees.


Posted by: apostropher | Link to this comment | 05-28-09 8:16 AM
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Affirmative action was a factor in her choice (as it should have been)

I think I'm going to deny this, because to describe Sotomayor as an affirmative action pick buys into the idea that what would normally happen is that we would pick a highly qualified, perfectly neutral white male, and that any deviation from that pattern means the person had an unfair advantage in the hiring process. Or that normally we award SC Justices to men based solely on a solemn list of their accomplishments, instead of the usual melange of political, personal, and judicial reasons. Was Scalia an affirmative action pick? Italian-American Catholics were crucial to Reagan's success.

She was picked in part because of her background and gender, no doubt, but not only was this done with the aim of producing a better, fairer Court, there is no such thing as a non-affirmative-action pick in this case. I really, really don't like the framing that the only truly accomplished people are white males; everyone else is picked for special reasons.


Posted by: Cala | Link to this comment | 05-28-09 8:21 AM
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Yeah, but you have to remember that it was a lot easier for her to get there than someone like Alito or Roberts, who had to battle affirmative action their whole lives.


Posted by: Cryptic ned | Link to this comment | 05-28-09 8:21 AM
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286: I don't know that it's really insincere to claim that Thomas' nomination was affirmative action. At least as I think of affirmative action. Thomas may have been underqualified, and race was undoubtedly a factor in his nomination. But no one thinks he was picked for purposes of leveling the playing field for minorities or to undermine institutional bias favoring white males. If I were articulate, I'd lay out a distinction between affirmative action and crass, opportunistic tokenism.


Posted by: Di Kotimy | Link to this comment | 05-28-09 8:23 AM
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If I were articulate

Too bad you're white.


Posted by: apostropher | Link to this comment | 05-28-09 8:25 AM
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289: It's remarkable how they were able to persevere, despite not having the advantages of growing up poor in Bronx.


Posted by: Cala | Link to this comment | 05-28-09 8:26 AM
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I suspect all Shearer meant by "Sotomayor is an affirmative action hire" is that it's very unlikely she would have been nominated by Obama, at least at this time, if she were a white male. Which is true. He wanted a woman, and the fact that she was a minority certainly helped as well. I don't think James meant that she was objectively unqualified, or even necessarily less qualified than other candidates. Just that a white male with her resume wouldn't have gotten the nod. And I suspect that Shearer (or, at least, people who oppose affirmative action--not sure about Shearer's thoughts here) find this in itself offensive--the very idea that those sorts of factors would enter the calculus of selection criteria, as opposed to pure measures of objective "merit".

Implicit in this is a rejection of the idea that diversity of perspective is beneficial in itself, of course. (Or, in more sophisticated critiques: an acceptance that diversity of perspective can be beneficial, but a rejection of the idea that racial, sexual or other similar "shallow" measures of diversity are good proxies for diversity of perspective.)


Posted by: Brock Landers | Link to this comment | 05-28-09 8:30 AM
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288: I think I'm going to deny this, because to describe Sotomayor as an affirmative action pick buys into the idea that what would normally happen is that we would pick a highly qualified, perfectly neutral white male, and that any deviation from that pattern means the person had an unfair advantage in the hiring process.

Mmm. The only problem with this, is that the pool of people with credentials as good as Sotomayor's is still disproportionately white male. A race- and gender-blind pick on the basis of professional credentials only might have come up with Sotomayor or another non-white, non-male justice, but odds are (I think, offhand) against it (that ignores the fact that the process of acquiring those professional credentials is still not race- or gender-blind, of course). Affirmative action may not be the right term, but where race and gender are considerations, that should be openly acknowledged.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:31 AM
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So, anyone else feeling paranoid about the whole "Sotomayor's never written anything about abortion, except for a ruling that upheld the global gag rule" thing?


Posted by: inaccessible island rail | Link to this comment | 05-28-09 8:32 AM
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And what Brock said.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:32 AM
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I think Thomas was a bad pick because his politics are ghastly and his judicial philosophy is lunatic, but I don't find it offensive or wrong that he was an affirmative action hire.

Hmm. I sorta do, if I'm reading you right. To suggest that advancement of a poorly qualified minority candidate is appropriate in the name of affirmative action seems to buy in to the idea that well qualified minority candidates can't be found.


Posted by: Di Kotimy | Link to this comment | 05-28-09 8:32 AM
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295: Nope. I might be unpleasantly surprised, but I'm not worried right now.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:33 AM
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Also implicit in this is the idea that getting a SC nod isn't a political process, or that we have an independent method of evaluating judges, and that judges that gets As on the Judge SAT get to be Justices.


Posted by: Cala | Link to this comment | 05-28-09 8:33 AM
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despite not having the advantages of growing up poor in Bronx.

THAT'S THE BRONX, CHIEF.


Posted by: OPINIONATED AND MUCH MALIGNED BOROUGH | Link to this comment | 05-28-09 8:34 AM
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IIR: No, I think she will be good on social issues, and bad on economic issues and freedom issues and so forth which don't get discussed in the media coverage of the court.


Posted by: Cryptic ned | Link to this comment | 05-28-09 8:34 AM
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299: that's right.


Posted by: Brock Landers | Link to this comment | 05-28-09 8:36 AM
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297: Well, political views are a qualification for SC picks. I don't find it implausible that Thomas was the best qualified black conservative out there, although obviously not the best qualified black jurist if you're not screening by politics. (If I'm wrong about that, and there were better qualified politically acceptable options, that is offensive.)

But the Harriet Miers pick was offensive on those grounds -- it was so clearly "Eh, if I'm going to pick a woman, who cares what her qualifications are. If I wanted someone who'd do a good job, I'd pick a white guy."


Posted by: LizardBreath | Link to this comment | 05-28-09 8:36 AM
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293: There is the additional issue that acknowledging that the existing social order is biased against otherwise excellent people strikes directly at ones' self image as having earned ones' status. That I think underlies a lot of the raving about affirmative action and the like. A truly race and gender neutral social order would see a lot of white males pushed well down the social ladder. That's fucking scary if you have any kind of self doubt.


Posted by: togolosh | Link to this comment | 05-28-09 8:37 AM
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301 sounds right. Remember that New York Times Magazine about how the entire court, 9-0, is well within the comfort zone of the Chamber of Commerce? I think she'll enhance that feature and thereby pass muster as a liberal for just about everyone.


Posted by: Wrongshore | Link to this comment | 05-28-09 8:37 AM
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My last crossed with 299, which is right.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:37 AM
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Affirmative action may not be the right term, but where race and gender are considerations, that should be openly acknowledged.

Sort of. I guess the way I'm looking at it is that it's so far from a merit competition (further, even, than college admissions or annual junior hiring searches) that the phrase is somewhat meaningless, especially in the absence of a policy or hard and fast guidelines. It's not a position in which long tenure is helpful. It's not a position in which a history of wise rulings on controversial topics is helpful. It's not a position with a regular job cycle. It's not a position independent of politics. And, despite the cries of the poor beleaguered white males, it's not a position in which being a white male has historically been a disqualification for the job.

And "affirmative action hire" has huge negative connotations that I think it is unwise to ignore.


Posted by: Cala | Link to this comment | 05-28-09 8:40 AM
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(If I'm wrong about that, and there were better qualified politically acceptable options, that is offensive.)

Huh? Is the president under an obligation to pick the best-qualified politically-acceptable option? (How are you measuring "qualification"?)

The President picks someone he (or hopefully someday: she) personally likes and trusts, who has enough sparkle on the resume to pass through screening by the Senate (the majority of which presumably neither knows nor trusts the candidate). I don't think there's a duty to pick the "best qualified" candidate available. Or at least, for me to even consider this proposition, someone would have to explain to me what the hell we mean by "qualified", and how we're measuring it.


Posted by: Brock Landers | Link to this comment | 05-28-09 8:42 AM
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308 before I saw 306, which answers some of my confusion.


Posted by: Brock Landers | Link to this comment | 05-28-09 8:43 AM
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308: It's not 'best qualified', but there's some obligation to pick a candidate who's reasonably qualified. If Bush Sr. had decided to pick a conservative black Justice, and had further decided that he was just filling a slot on the basis of race alone, and wasn't going to even think about professional qualifications, so he overlooked a slew of conservative black jurists with significantly stronger resumes than Thomas's, that would have been wrong.


Posted by: LizardBreath | Link to this comment | 05-28-09 8:51 AM
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But the Harriet Miers pick was offensive on those grounds -- it was so clearly "Eh, if I'm going to pick a woman, who cares what her qualifications are. If I wanted someone who'd do a good job, I'd pick a white guy."

I thought this was more,"I'm going to pick this woman, because she worships me."


Posted by: peep | Link to this comment | 05-28-09 8:54 AM
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310: Hmm. I guess we disagree, unless you can clarify what "stronger resume" means, exactly. Did Thurgood Marshall have a sufficiently strong resume?

(I mean sure, "wasn't even going to think about professional qualifications" would be wrong, but it's also unrealistic. Miers is the exception that proves the rule--and she wouldn't have made it through the Senate.)


Posted by: Brock Landers | Link to this comment | 05-28-09 9:02 AM
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313: Well, Miers may be an exception, but she's the sort of thing I was thinking of. There's a right-wing caricature of affirmative action, that affirmative action implies total disregard for professional or academic qualifications in favor of treating demographic identity as the only important factor. The Miers pick looked rather like an enactment of the right-wing caricature.

you can clarify what "stronger resume" means, exactly. Did Thurgood Marshall have a sufficiently strong resume?

It's the Potter Stewart rule, I'm afraid.


Posted by: LizardBreath | Link to this comment | 05-28-09 9:10 AM
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Posted by: | Link to this comment | 05-28-09 9:17 AM
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Funny, I never thought of Meirs as a right-wing affirmative-action caricature pick. I always thought of her more as Bush picking the person he thought would be best for the job (based on personally knowing and trusting her--and see 311). Did he ever say anything along the lines of "we need another woman on the court?" (I'm guessing not, since Alito was his follow-up.)


Posted by: Brock Landers | Link to this comment | 05-28-09 9:21 AM
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295: I assume you read this?


Posted by: Brock Landers | Link to this comment | 05-28-09 9:23 AM
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Well, she was replacing O'Connor, and I remember her gender being a topic of discussion at the time, albeit not IIRC in the form of official statements from Bush.


Posted by: LizardBreath | Link to this comment | 05-28-09 9:24 AM
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The Supreme Court is not like other legal jobs. The standard sort of qualifications aren't enough. I'd think it perfectly appropriate to nominate someone who went to a third rate school and had mostly political rather than legal experience, if weight were given to factors such as:

- can bring concensus to a group of opinionated assholes so we don't have so many 3 - 3 - 3 - 2 - 2 - 1 opinions spread over 372 pages.

- can write simply and clearly and pithily so that the average college graduate can read and understand the opinion. Short phrases are good (e.g. 'stop, look, listen')

- can state rules of law simple enough that the average high school graduate can understand and conform their conduct thereto (black armbands in school is okay, but BONGHITS4JESUS across the street isn't?? huh?)

- can speak and write publicly, in popular venues, in ways that bring respect for the court and for law.


Posted by: Michael H Schneider | Link to this comment | 05-28-09 9:24 AM
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Thomas was picked mostly because he is black, Sotomayor mostly because she is an Hispanic woman.

This explanation more or less drains the phrase "affirmative action" of any meaning. After all, if that's your explanation of Sotomayor, it'd be hard to make a case that any justice has been "mainly" chosen for a reason other than ethnicity and/or gender. If everything is affirmative action, then nothing is.


Posted by: politicalfootball | Link to this comment | 05-28-09 9:32 AM
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Bah. 319 pwned by Cala back in 288.


Posted by: politicalfootball | Link to this comment | 05-28-09 9:36 AM
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288
there is no such thing as a non-affirmative-action pick in this case.

Very true, and deserves to be repeated. (Although I don't necessarily disagree with people calling Clarence Thomas an example of affirmative action case. Maybe one statement or another is misleadingly phrased, or maybe I just contain multitudes.) Affirmative action in hiring policies for large organizations or admissions policies for large schools is completely different from weighing the personal background of appointees to political offices.

There are probably literally hundreds of potential Supreme Court nominees, which is even more true of lower-profile but still political positions. Check out the variety in resumes of people here. Remember some further considerations: too much experience is actually deprecated because it helps your political goals to have a Supreme Court judge live as long as possible in office, and the nominee's political beliefs vary in importance depending on how ambitious president's policy agenda is.

So it would be dumb not to consider the personal background - race, religion, gender, all of it - of nominees to the Supreme Court. Partly because it's valued to get outsiders' perspectives unless you want to make sure they stay outsiders, and partly because what else are they going to base it on? It's a hundred-way tie, and a desire to promote diversity is a much better tie-breaker than patronage or something.


Posted by: Cyrus | Link to this comment | 05-28-09 9:37 AM
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319: you think Roberts was picked "mainly" because he's a white male?

I'd guess that for most SCOTUS nominations, neither race nor gender has even really been considered. Which left an overwhelmingly--and for a time, virtually exclusively--white male pool of candidates. Most people opposed to affirmative action would argue that its good that the pool of qualified potential applicants includes a few more minorities and women than it used to, but we still should be evaluating the candidates in that pool without reference to race or gender.

I don't agree with this perspective, but it's not true that it "drains affirmative action of any meaning."


Posted by: Brock Landers | Link to this comment | 05-28-09 9:41 AM
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I'm under the impression that Miers was picked for the same reasons Bush picked anyone for anything: Loyalty to Bush himself.


Posted by: togolosh | Link to this comment | 05-28-09 9:42 AM
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Maybe demographically conscious is a better term than affirmative action, then?


Posted by: LizardBreath | Link to this comment | 05-28-09 9:44 AM
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319: you think Roberts was picked "mainly" because he's a white male?

Roberts is certainly a strong-ish counter-example. One could imagine a black female, say, getting picked with Roberts' resume. The "affirmative action" (by Shearer's meaningless definition) in Roberts' case primarily existed in the form of the advantages he was given that put him in a position to be nominated. Maybe Roberts would have been picked if he were a black female, but a black female pretty much couldn't become Roberts.

And Roberts is pretty much your best case in the entire history of the Supreme Court. Up until O'Conner, every single justice was male, and up until T. Marshall, all were white. What is affirmative action (again, by the useless definition that I stipulate) if it isn't favoring some groups over others?


Posted by: politicalfootball | Link to this comment | 05-28-09 9:50 AM
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I'd guess that for most SCOTUS nominations, neither race nor gender has even really been explicitly considered. Which left an overwhelmingly--and for a time, virtually exclusively--white male pool of candidates.

Obviously race and gender, and consideration of same, played a role in how that pool was created in the first place.


Posted by: Di Kotimy | Link to this comment | 05-28-09 9:50 AM
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322: No, but I expect he was picked due to lots of considerations that do not map onto getting an A on the Judge SAT. What I'm pushing back on is the idea that when we pick a white male conservative Catholic who is also a fine legal scholar, that selects for merit, but when we pick a Hispanic female moderate Catholic who is a fine legal scholar, it is time for the rolling of the eyes at the affirmative actionness of the selection.


Posted by: Cala | Link to this comment | 05-28-09 9:52 AM
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322: Right. "Race blindness", while a lovely aspiration, will systematically disadvantage non-white, non-male applicants for powerful positions until our society as a whole is lacking in racial and gender bias. There's a sense in which Alito's nomination was "race blind" and Sotomayor's wasn't; probably no one was consciously thinking "We need to make sure we have enough white men on the Court." Nonetheless, it's absolutely implausible that his race and gender didn't affect the course of his career.


Posted by: LizardBreath | Link to this comment | 05-28-09 9:52 AM
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Obviously race and gender, and consideration of same, played a role in how that pool was created in the first place.

Right, but only at a broad societal-structural level, not at the level of the President and his advisors assembling a pool of potential candidates.



Posted by: Brock Landers | Link to this comment | 05-28-09 9:54 AM
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And there's always the argument that a truly meritocratic approach in a racist society wouldn't be race blind: if candidates A and B both have the same resume, but A is Hispanic and B is white, you could argue that A is probably the more able, because he's managed to achieve the same as B despite having the disadvantage of being Hispanic in a racist society, and so once you put A in the (ex hypothesi) non-racist environment of your institution, he'll do much better than B would.


Posted by: ajay | Link to this comment | 05-28-09 9:58 AM
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329: Which is why I'm not comfortable walking away from the 'affirmative action'/'demographic consciousness' concept. If you deny that you're behaving in a race/gender conscious manner, you're either not telling the truth, or you're not taking any action to correct broad societal-structural injustices.


Posted by: LizardBreath | Link to this comment | 05-28-09 9:59 AM
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Was Louis Brandeis an affirmative action pick? I'm reasonably confident that in addition to his legal and political opinions, his being Jewish was considered. It was certainly considered by his opponents.


Posted by: Michael H Schneider | Link to this comment | 05-28-09 9:59 AM
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I'm not arguing against affirmative action, folks.


Posted by: Brock Landers | Link to this comment | 05-28-09 10:00 AM
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Right, but only at a broad societal-structural level, not at the level of the President and his advisors assembling a pool of potential candidates.

I don't buy this, but at least there's an argument to be made in some recent cases.

I can't see any argument at all that says that race and gender weren't decisive in the vast majority of selections - specifically at the level of the President and his advisors in assembling a pool of potential candidates.


Posted by: politicalfootball | Link to this comment | 05-28-09 10:02 AM
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333: Clearly not -- or at least I'm arguing for affirmative action, and I'm agreeing with almost everything you're saying.

334: I can't see any argument at all that says that race and gender weren't decisive in the vast majority of selections

Seriously -- like, you're picturing the President and advisers sorting through possibilities and saying "White guy, put him in the pile. Woman, no. Black guy, no. White guy, yes. Native American woman, no."

I don't think it works that way -- you get structural factors shaping who's on the list of conceivable possibilities at all.


Posted by: LizardBreath | Link to this comment | 05-28-09 10:07 AM
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The SC nomination process reminds me so much of the hiring process in academia that it's hard for me even to understand how people can argue for a blindly meritocratic system. In academia, you're looking for people who pass over a certain qualification bar, but then the committee and the department have a knock-down-drag-out fight over temperament, area of specialization, background, identity, and other amorphous qualities that take on an extra importance because every appointment is going to result in a long-ass tenure and a reshaping of the institution.


Posted by: Jackmormon | Link to this comment | 05-28-09 10:08 AM
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I kind of wish that Harriet Miers had made it. I don't think that she'd have been as dangerous as Alito. More practical and pragmatic. Probably annoyingly unclear in the same way that O'Connor was, but not actively ideologically dangerous. Just generally pro business.


Posted by: Bostoniangirl | Link to this comment | 05-28-09 10:14 AM
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336: That was my thinking, too, and it's more like a senior search than a junior search.


Posted by: Cala | Link to this comment | 05-28-09 10:25 AM
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337: Somewhat agree. The two things that worried me about here were the pro-business stuff and what her attachment to Bush said about her judgment overall. But I was willing to be that she would ave developed and been an adequate justice.


Posted by: JP Stormcrow | Link to this comment | 05-28-09 10:27 AM
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Speaking of men being the default candidate:

could argue that A is probably the more able, because he's


Posted by: Sir Kraab | Link to this comment | 05-28-09 10:38 AM
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A truly race and gender neutral social order would see a lot of white males pushed well down the social ladder. ain't gonna happen until we get a new and improved human race. Individual human beings have all sorts of idiosyncratic likes and dislikes, some of which affect how they treat people who are different from them (or similar to them, for that matter), and all of which have at least some effect on how they exercise power. Getting to a world in which your race or gender is just in the mix with all the other little things that affect how others treat you is about as much as we can reasonably hope for.


Posted by: Not Prince Hamlet | Link to this comment | 05-28-09 10:43 AM
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More on 340: I truly hate the generic masculine and it's so irksome that if I use "she" or switch back and forth between "she" and "he," I'm Making A Statement which for some readers seems to distract from the content.

Sort of along the default person lines, though much more intense, I find this speech from "A Time to Kill" quite powerful. Scroll down to the longest paragraph, which is the lawyer's summation. He's defending a black father who killed his 10-year-old daughter's white rapists.


Posted by: Sir Kraab | Link to this comment | 05-28-09 11:03 AM
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325

The "affirmative action" (by Shearer's meaningless definition) ...

It was LB in 105 who thought it was "worth pointing out" that Thomas was "an affirmative action hire". What is her definition and why doesn't it apply to Sotomayor?


Posted by: James B. Shearer | Link to this comment | 05-28-09 11:06 AM
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341: I agree completely. The point is just that even the less ideal (and more realistic) vision of your last sentence scares the shit out of people riding the privilege bus.


Posted by: togolosh | Link to this comment | 05-28-09 11:09 AM
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Most people use the word "affirmative action" to mean "quotas for token minorities". But some people who support it actually realize why it includes the word "affirmative", and thus they mean something quite different by it.


Posted by: Cryptic ned | Link to this comment | 05-28-09 11:13 AM
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Most people use the word "affirmative action" to mean "quotas for token minorities".

"Preferences", not necessarily "quotas", I think.


Posted by: Brock Landers | Link to this comment | 05-28-09 11:17 AM
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Cala speaks the truth.

Togolosh would be too...

There is the additional issue that acknowledging that the existing social order is biased against otherwise excellent people strikes directly at ones' self image as having earned ones' status.

...if not for the multiple egregious apostrophe violations.


Posted by: Witt | Link to this comment | 05-28-09 11:19 AM
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347: This is what happen's when you are in a hurry. Or illiterate.


Posted by: togolosh | Link to this comment | 05-28-09 11:23 AM
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Now that I'm back at work I can comment!

288 was exactly what I was getting at when I called the "affirmative action" argument bullshit. This is a political selection for a political position, such selections *always* mix questions of representativeness with questions of technical qualifications. That was equally true back in the day of white-males-for-everything.

But of course it depends somewhat on how you define "affirmative action".


Posted by: PGD | Link to this comment | 05-28-09 11:23 AM
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I'm starting to regret our decision to pander to Botswanians by promoting togolosh from lurker to commenter.


Posted by: Cryptic ned | Link to this comment | 05-28-09 11:25 AM
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343
It was LB in 105 who thought it was "worth pointing out" that Thomas was "an affirmative action hire". What is her definition and why doesn't it apply to Sotomayor?

See 217.


Posted by: Cyrus | Link to this comment | 05-28-09 11:35 AM
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And there's always the argument that a truly meritocratic approach in a racist society wouldn't be race blind: if candidates A and B both have the same resume, but A is Hispanic and B is white, you could argue that A is probably the more able, because he's managed to achieve the same as B despite having the disadvantage of being Hispanic in a racist society, and so once you put A in the (ex hypothesi) non-racist environment of your institution, he'll do much better than B would.

I think this needs to be more fine-grained and consider social class to be realistic. Matthew Yglesias has not faced structural disadvantages by virtue of being Hispanic the way Sotomayor has.


Posted by: Criminally Bulgur | Link to this comment | 05-28-09 11:35 AM
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352 seems right, and it's worth pointing out that most people I know personally who oppose affirmative action (I'm sure there are other opposers out there, so I really am just speaking about those I know personally, although I've got a vague sense that much of the opposition to affirmative action fits this model) are themselves white males from economically and socially disadvantaged backgrounds. The stereotypical rural poor, etc. I don't think that much of the affirmative-action backlash is really driven by UMC white boys who just feel like being racist/sexist assholes. It's people who feel legitimately aggrieved by society, and who think the benefits of affirmative action tend to accrue to people who, while perhaps disadvantaged compared to a UMC white male, are legitimately much better socioecomicially positioned than they themselves.

I don't agree with this view (either as a matter of fact (although there are certainly important truthful elements to the story), or as a conclusion (even if the facts were entirely sound)), but I do find it sympathetic, and I think attempts to dismiss it as simple "racism"/"sexism"/etc. are both unfair and unhelpful.


Posted by: Brock Landers | Link to this comment | 05-28-09 11:48 AM
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That's part of it, but part of it is UMC guys who periodically forget that they didn't pull themselves up by their own bootstraps. (e.g., legacy admit to an elite university arguing that no one gave him anything, and so affirmative action is unfair)


Posted by: Cala | Link to this comment | 05-28-09 11:54 AM
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353 also seems right.


Posted by: Not Prince Hamlet | Link to this comment | 05-28-09 11:54 AM
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I don't think that much of the affirmative-action backlash is really driven by UMC white boys who just feel like being racist/sexist assholes.

Most of the affirmative-action backlash is most definitely driven by UMC white men, who market their opposition as championing the white, male factory worker.

Joe the Plumber comes to mind as an example of this phenomenon.


Posted by: Grumps | Link to this comment | 05-28-09 11:56 AM
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(e.g., legacy admit to an elite university arguing that no one gave him anything, and so affirmative action is unfair)

I've heard of these people, but never encountered any. The legacy admits to elite universities I knew all seemed secure enough in their own lofty economic positions to be comfortable sharing the wealth a bit with the disadvantaged. The people who get really angry about affirmative action are the people who feel threatened and/or aggrieved.

But I'm sure you're right that these people do exist. And I also didn't mean for 353 to minimize the amount of genuine racism/sexism that abounds, or the degree to which that can be interlaced with the factors I described in someone's opposition to affirmative action.


Posted by: Brock Landers | Link to this comment | 05-28-09 12:00 PM
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UMC guys who periodically forget that they didn't pull themselves up by their own bootstraps

My dad definitely did some bootstrap pulling (working class family, first in his family to graduate high school, never mind college, worked hard and eventually made it to the UMC). When we argue about affirmative action, I try to be clear that it isn't that I think he didn't succeed largely on his own merits (and some good luck) but that there are other people who worked at least as hard to pull themselves up but faced more obstacles.


Posted by: Sir Kraab | Link to this comment | 05-28-09 12:08 PM
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352

I think this needs to be more fine-grained and consider social class to be realistic. Matthew Yglesias has not faced structural disadvantages by virtue of being Hispanic the way Sotomayor has.

Perhaps because Yglesias isn't Hispanic. Is he?


Posted by: James B. Shearer | Link to this comment | 05-28-09 12:08 PM
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It was a friend of mine, conservatively whining about women, affirmative action, university admissions, etc., and yes, I set him straight harshly.

I think that part of the problem is that even someone who is UMC, let the stereotypical rural Horatio, and who is successful due in part to hard work isn't wrong to feel as though they did work hard. The problem is that hard work isn't usually sufficient for success, and the other advantages they have are largely invisible to them because they're part of the background of growing up as an UMC white guy, whereas AA is a very visible process.


Posted by: Cala | Link to this comment | 05-28-09 12:10 PM
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317

See 217.

Perhaps Thomas needed affirmative action more than Sotomayor did but they both benefited. One of the arguments against affirmative action is that it hurts people that don't need it by lumping them in with people that do. And when someone has benefited from affirmative action it is hard to know what the likely floor is for their actual competence.


Posted by: James B. Shearer | Link to this comment | 05-28-09 12:15 PM
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360: Lyndon Johnson (or Bill Moyers or whoever wrote it) was eloquent on this point:

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair.
Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.
This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.
For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities--physical, mental and spiritual, and to pursue their individual happiness.
To this end equal opportunity is essential, but not enough, not enough. Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family that you live with, and the neighborhood you live in--by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child, and finally the man.

Posted by: Sir Kraab | Link to this comment | 05-28-09 12:16 PM
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But the Harriet Miers pick was offensive on those grounds -- it was so clearly "Eh, if I'm going to pick a woman, who cares what her qualifications are is a personal crony. If I wanted someone who'd do a good job, I'd pick a white guy someone who didn't work for me."

There were horrible reactionary women for Bush to pick. I remain surprised that he didn't go with Priscilla Owen, who would have been three times as evil as Miers and (if nothing else) at least not a punch line.


Posted by: snarkout | Link to this comment | 05-28-09 12:16 PM
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When we argue about affirmative action, I try to be clear that it isn't that I think he didn't succeed largely on his own merits (and some good luck) but that there are other people who worked at least as hard to pull themselves up but faced more obstacles.

Genuine question: positing that of course such people exist, do you think the benefits of affirmative action accrue primarily to their benefit, or to the benefit of other people who actually probably had significant advantages over your father?

(I'm probably tipping my hand, but I think the answer is clearly 'the latter'. "Helping level the playing field for societally disadvantaged persons" isn't in my view really the goal of affirmative action. (Or, if it is, it's generally really poorly designed to meet that goal.) The goal is helping achieve a diversity of perspective (including racial/gender diversity) in various institutions, both to benefit those institutions (and their decisionmaking) and for the beneficial effects this can have on society at large (both in reducing prejudice and in providing examples and role-models to women/minorities).)


Posted by: Brock Landers | Link to this comment | 05-28-09 12:19 PM
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And when someone has benefited from affirmative action it is hard to know what the likely floor is for their actual competence.

And yet, James, we see that Sotomayor has been a federal judge for as long as the last four Republican nominees combined, and has a lower-than-average reversal rate as an appellate judge.

On the other hand, some of Jeffery Rosen's anonymous friends say that she isn't that bright and is rude to lawyers, so maybe you're right.


Posted by: snarkout | Link to this comment | 05-28-09 12:20 PM
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Perhaps because Yglesias isn't Hispanic. Is he?

His grandparents on one side were Cubans.


Posted by: apostropher | Link to this comment | 05-28-09 12:27 PM
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364: What do you mean by "significant advantages"? Are you talking about class?


Posted by: Sir Kraab | Link to this comment | 05-28-09 12:31 PM
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I kind of think the goal of affirmative action is to get enough people who are more likely to view being non-UMCWG as a plus into positions of power.


Posted by: Not Prince Hamlet | Link to this comment | 05-28-09 12:32 PM
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I don't think that much of the affirmative-action backlash is really driven by UMC white boys who just feel like being racist/sexist assholes.

A fair amount of it is driven by UMC white men purporting to speak for disadvantaged white people.


Posted by: LizardBreath | Link to this comment | 05-28-09 12:34 PM
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My read -- from very far off -- is that the Thomas pick and the Sotomayor pick are neither of them directly or simply affirmative action picks, so much as picks deliberately exploiting the pre-existing fact of affirmative action (and the strong feeling around it), to game the opponent into responding in ways that makes them look bad. (With Thomas, there was the Anita Hill dimension too, but no one planned on that being a factor... )

Since the opponent in the two cases has different attitude to affirmative action, the gaming is operating in different ways: dems to be defensive about countering a conservative because he's from a key dem constituency; reps to be nervous about countering a process centrist because she's from a constituency they very badly need not to alienate any more than they already are doing...

In both cases, there's clearly also a strong element of "_______ will be excellent for our purposes on SCOTUS", so that the gaming is kind of a bonus.


Posted by: tierce de lollardie | Link to this comment | 05-28-09 12:35 PM
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367: yes, broadly, more or less.
368: yes, agreed, that's one goal.


Posted by: Brock Landers | Link to this comment | 05-28-09 12:36 PM
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369: eh, I suppose that's right, except in this case I'd say "speaking" instead of "purporting to speak". They're the ones talking only because they're the ones with microphones (sometimes literally, sometimes figuratively).


Posted by: Brock Landers | Link to this comment | 05-28-09 12:43 PM
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366:Cuban-American. grandfather Jose born in Tampa.

Paternal grandmother Helen Bassine Yglesias from Brooklyn.


Posted by: bob mcmanus | Link to this comment | 05-28-09 12:45 PM
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And when someone has benefited from affirmative action it is hard to know what the likely floor is for their actual competence.

James, your entire discussion of affirmative action is indifferent to competence.

Had a candidate of Sotomayor's competence level (defined however you like) been a white male, you wouldn't object to his appointment on competence grounds. I mean, you haven't specifically admitted this, but I invite you to tell me I'm wrong.

On the other hand, take the hypothetical white male in the previous paragraph and make that person a Hispanic female, and you would regard the appointment as a problematic affirmative action hire. You have said this explicitly.

Your only stated problem with Sotomayor is her race and/or sex - and your only stated measure of her competence is directly tied to her race and/or sex. I hesitate to call you racist, James, but I struggle to come up with some other word to describe your ideological framework here.


Posted by: politicalfootball | Link to this comment | 05-28-09 12:46 PM
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Hey, this is a question for NPH -- how does affirmative action work in Hawaii? My general, uninformed, sense is that Hawaii really does reflect a racially pluralistic society, where people are conscious of their race but there's not an obviously dominant white majority or even plurality. I know that there are all kinds of set-asides for native. Hawaiians but it strikes me that these kinds of issues would have a totally different valence over there.


Posted by: robert halford | Link to this comment | 05-28-09 12:51 PM
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."Helping level the playing field for societally disadvantaged persons" isn't in my view really the goal of affirmative action. (Or, if it is, it's generally really poorly designed to meet that goal.) The goal is helping achieve a diversity of perspective (including racial/gender diversity) in various institutions, both to benefit those institutions (and their decisionmaking) and for the beneficial effects this can have on society at large (both in reducing prejudice and in providing examples and role-models to women/minorities).)

I think this is exactly right.


Posted by: Criminally Bulgur | Link to this comment | 05-28-09 12:52 PM
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Yeah, the line of argument that says, oh, I'm not prejudiced, I just can't tell whether someone who graduates summa cum laude from Princeton and then Yale Law School and then as a federal judge for twenty years is qualified because affirmative action makes me think she was handed everything is beyond ridiculous.


Posted by: Cala | Link to this comment | 05-28-09 12:55 PM
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I largely agree with 364 and 368 and would add that it's not just about having role models for men of color and women* but also that their very presence helps erode the obstacles for others.

I do think 358 is a useful -- even necessary -- argument to support the very idea of affirmative action and other formal and informal attempts to move toward balancing things out.

I wonder what kind of research has been done on the backgrounds of people who have directly benefitted from affirmative action -- to the very limited extent you could identify those people, anyway.

*The phrase "women and minorities" gets the job done, but it's another language problem, one which I can't figure out how to address other than with the clunky "white women and people of color" or "men of color and women." Cf. All the Women Are White, All the Blacks Are Men, But Some of Us Are Brave.


Posted by: Sir Kraab | Link to this comment | 05-28-09 1:00 PM
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Gah. Today is really not a day I should be spending time on Unfogged. I gotta get out of here.


Posted by: Sir Kraab | Link to this comment | 05-28-09 1:06 PM
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Your only stated problem with Sotomayor is her race and/or sex

Mmm, I don't think James has stated that he has a problem with her.


Posted by: apostropher | Link to this comment | 05-28-09 1:11 PM
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Perhaps because Yglesias isn't Hispanic. Is he?

Other people have already answered, but they left out that the name Yglesias is (I believe) Spanish for "church," which I've always thought was funny.


Posted by: Cyrus | Link to this comment | 05-28-09 1:18 PM
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381: that's with an "i" instead of a "y", though the two may be linguistically related.


Posted by: Brock Landers | Link to this comment | 05-28-09 1:23 PM
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A truly race and gender neutral social order ain't gonna happen until we get a new and improved human race. Individual human beings have all sorts of idiosyncratic likes and dislikes, some of which affect how they treat people who are different from them (or similar to them, for that matter), and all of which have at least some effect on how they exercise power.

I agree with NPH on this, and I have some opposition to affirmative action for this reason. An even distribution of gender, races, and ethnicities across all workplaces and all forms of social power seems unrealistic to me. People are naturally tribal and clannish, naturally social, and naturally specialize. You put all that together and you get a lot of clustering of various sorts. Top-down imposition of uniformity through bureaucratic rules is really problematic. Social interactions (including work) are very local and you need to give freedom to local decisionmakers. Interference with local decisions seen as legitimate by the participants also creates resentment and social conflict along the lines discussed above.

But I also don't believe in meritocracy as an accurate description of the world. Clustering doesn't happen because of a magic sacred "merit" that can never be interfered with. Ethnic / racial divisions obviously turn socially harmful at a certain level. Temporary and targeted interventions to introduce diversity have risks, but can help in certain circumstances. They are especially justified in the public arena, in political areas, where the purpose is in part to provide a common shared space for all members of the society. And as I said above, for many political appointments the concept of "affirmative action" doesn't even make much sense, because inclusiveness is one of the goals of politics. Being representative is one of your "objective" qualifications for the position.


Posted by: PGD | Link to this comment | 05-28-09 1:28 PM
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An even distribution of gender, races, and ethnicities across all workplaces and all forms of social power seems unrealistic to me. People are naturally tribal and clannish, naturally social, and naturally specialize. You put all that together and you get a lot of clustering of various sorts. Top-down imposition of uniformity through bureaucratic rules is really problematic. Social interactions (including work) are very local and you need to give freedom to local decisionmakers. Interference with local decisions seen as legitimate by the participants also creates resentment and social conflict along the lines discussed above.

You know, there really aren't a lot of affirmative action programs that resemble this at all. Top down imposition of a rule that all workplaces had to exhibit the same racial/ethnic/gender breakdown as the population would be very unpopular, but also doesn't exist. Real life affirmative action tends to be more about outreach to underrepresented groups.


Posted by: LizardBreath | Link to this comment | 05-28-09 1:36 PM
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"make sure we have a chick on the short list to show willing" is far more common than "our department will achieve gender parity."


Posted by: Cala | Link to this comment | 05-28-09 1:41 PM
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In the last two years, our school's president retired, and then the provost resigned, both of whom were obnoxious good ol' boys. Our new president is a woman, and the provost is a black guy, and I like both of them extremely much. I am very proud to be part of this little Texan college.


Posted by: heebie-geebie | Link to this comment | 05-28-09 1:44 PM
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381: that's with an "i" instead of a "y", though the two may be linguistically related.

It's a regional (Galician) spelling of "iglesia."


Posted by: Criminally Bulgur | Link to this comment | 05-28-09 1:45 PM
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Hey, this is a question for NPH -- how does affirmative action work in Hawaii? My general, uninformed, sense is that Hawaii really does reflect a racially pluralistic society, where people are conscious of their race but there's not an obviously dominant white majority or even plurality. I know that there are all kinds of set-asides for native. Hawaiians but it strikes me that these kinds of issues would have a totally different valence over there.

I'm far from expert (and possibly full of shit), but AFAIK there's not much explicit AA other than programs for Native Hawaiians, and some (many?) of those differ from traditional AA in seeking to empower Native Hawaiians as a community rather than furthering integration (which is a little tricky because the actually-existing level of integration is pretty high). In a lot of respects Hawaii comes about as close to getting it right as we're likely to get any time soon, but there are still plenty of problems. OTOH it's kind of cool that I'm the only white guy among the nine lawyers in my office and there's nothing particularly weird about that. In general, being white and male is sometimes helpful and sometimes hurtful, almost certainly a plus overall, but less significant than it would be in a lot of places.


Posted by: Not Prince Hamlet | Link to this comment | 05-28-09 1:52 PM
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Mmm, I don't think James has stated that he has a problem with her.

James has been vague and weaselly, so it's a bit tough to ascribe any statement to him at all, but let's look at the tape. Here's 66:

Considering the amount of whining liberals have done about how Clarence Thomas was only picked because he was black I don't think they have much grounds for complaint here.

Granted, he doesn't say directly that it's okay to bash Sotomayor because of her race and gender, just that liberals shouldn't complain about it.

In 200 and 274, he tells us that Sotomayor was picked mainly because of her race and gender. Granted, he doesn't say that he thinks this is a bad thing. You think he brings this up because he's a fan of affirmative action? Could be, I guess.

My read is that James is throwing up Thomas's treatment by liberals in an attempt to blunt criticism of the racism aimed at Sotomayor. Likewise, when he says Sotomayor is an affirmative action appointment, I take this to be a complaint.

But hey, maybe not. James can certainly clarify this.


Posted by: politicalfootball | Link to this comment | 05-28-09 1:57 PM
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My take is that James isn't really addressing the merits of Thomas, Sotomayor, or affirmative action qua any of the three, but is just trying to "prove" that liberals are hypocrites. It's a fairly consistent pattern.


Posted by: | Link to this comment | 05-28-09 2:02 PM
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Dammit, why won't "Remember personal info" remember my personal info?


Posted by: apostropher | Link to this comment | 05-28-09 2:03 PM
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391: "Safe Search" is on.


Posted by: Not Prince Hamlet | Link to this comment | 05-28-09 2:07 PM
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390: Yeah, the thread running through all Shearer's commenting is (to paraphrase Groucho Marx) "Whatever the Unfoggetariat says, I'm against it."

Or to put it more harshly, he is Unfogged's own personal Mickey Kaus.


Posted by: peep | Link to this comment | 05-28-09 2:12 PM
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390: Well, okay, maybe the whole "liberals can't criticize racism against Sotomayor" thing and the whole "Sotomayor's competence is questionable because she is a Hispanic woman" thing are just unfortunate byproducts of a spurious effort to tweak liberals. It still ain't cool, if you ask me.


Posted by: politicalfootball | Link to this comment | 05-28-09 2:13 PM
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It's cosmopolitanism that the right is fearful of, and is objecting to. I suggest that reframing it in those term is preferable to accepting the right's framing in terms of affirmative action or identity politics, the latter having been slapped with a very bad name in the last decade or so.

There's obviously (to my eyes) a significant political discussion to be had -- and it's out there -- about the relationship between cosmopolitanism and identity politics. Answers are pending.


Posted by: parsimon | Link to this comment | 05-28-09 2:21 PM
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If these Mexicans want to be taken seriously they should go to Ivy League schools like regular people.


Posted by: Not Prince Hamlet | Link to this comment | 05-28-09 2:27 PM
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I sure liked this from Yglesias:

if conservatives continue to be unable to restrain themselves from loud whining about how society unfairly tilts the odds in favor of Puerto Rican girls growing up in housing projects in the Bronx, they'll presumably continue their current trajectory of alienating Hispanic voters.

Posted by: politicalfootball | Link to this comment | 05-28-09 2:44 PM
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It strikes me as odd that someone would be hesitant to call Shearer a racist. He's always going on about IQ, etc.


Posted by: David Weman | Link to this comment | 05-28-09 2:45 PM
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384-385: That's why I have no problem with what I've seen of U.S. affirmative action.

395: Ideally, what you're saying would be true but in the U.S. the conservative critique of cosmpolitanism was tainted at the root by racism and Jim Crow (where the fight against foreign influence was about maintaining the right to apartheid within a single community). Continuing my usual Daniel Larison worship, he has championed Sotomayor explicitly because of the anti-cosmpolitan implications of what she's said about her Hispanic background. He really likes the Berkeley speech (the "wise latina woman" one):

The most significant part of her speech from eight years ago has scarcely been discussed at all, which is her acknowledgment that neutrality and objectivity do not exist. One should strive to minimize the role of bias, but it is ineradicable. More than that, it sometimes serves a valuable social function-surely, students of Burke can understand this. The people who actually find this shocking or dangerous reveal themselves as believers in pleasant fictions left over from the 18th and 19th centuries. Those who understand that everyone is from somewhere specific, that everyone is part of a particular tradition, heir to a certain background and shaped by the places where he has lived and the experiences in those places, and that universal Man does not exist anywhere in the world, are not troubled by this. For us, it is a simple restatement of the obvious. The idea that where we come from matters deeply and defines who we are is hardly one that conservatives should find outrageous.

Posted by: PGD | Link to this comment | 05-28-09 2:53 PM
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I wonder what kind of research has been done on the backgrounds of people who have directly benefitted from affirmative action -- to the very limited extent you could identify those people, anyway.

IIRC (and it's been more than a decade), this book pretty definitively argues that white women benefited tremendously from early AA programs, particularly in the '70s and early '80s. It's not individual case studies, though.

."Helping level the playing field for societally disadvantaged persons" isn't in my view really the goal of affirmative action. (Or, if it is, it's generally really poorly designed to meet that goal.) The goal is helping achieve a diversity of perspective (including racial/gender diversity) in various institutions, both to benefit those institutions (and their decisionmaking) and for the beneficial effects this can have on society at large (both in reducing prejudice and in providing examples and role-models to women/minorities).)

I think you're working with a definition of "affirmative action" that is light-years away from the one I would use. My overwhelming experience of formal AA programs (as opposed to well-intentioned liberals unable to pass a formal AA program and thus stuck trying to informally jury-rig an inclusive selection process) is very, very much about "leveling the playing field for societally disadvantaged people".

I suspect that people's degree of agreement with your statement depend very heavily on the actual AA programs they have had personal contact with. And the lies they've been told -- plenty of job candidates who failed for individual reasons (stole money at their prior job, are an alcoholic) are told or believe that they lost out because they were a white guy.


Posted by: Witt | Link to this comment | 05-28-09 2:55 PM
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Here is a link to Larison's first post on Sotomayor, where he also defends her in the Ricci case by arguing that by upholding the lower court she was refusing to be an activist judge and rejecting making law from the bench -- love that.


Posted by: PGD | Link to this comment | 05-28-09 2:56 PM
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are told or believe that they lost out because they were a white guy.

I was told this once for a job I applied for - I wouldn't get it because they needed to hire a minority. I still got it. I've noticed that this is a very easy narrative for someone who doesn't want to tell an applicant: We don't think you measure up.


Posted by: politicalfootball | Link to this comment | 05-28-09 3:00 PM
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Yup. Especially if there's internal disagreement in the hiring group. ("It's not that I didn't think your work was good, but the chair thought we needed a woman.")


Posted by: Cala | Link to this comment | 05-28-09 3:02 PM
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Further to this: to the very limited extent you could identify those people, anyway.

I don't think it's limited at all. Imagine a building trades union that had zero female apprentices in 1970 and 10 in 1980. Trace those women's wages in comparison with women from similar backgrounds who didn't get into the union. Voila.

AA these days is so much about squishy voluntary stuff that it's easy to forget how much was hard-won, concrete numbers achieved through sometime painful legal fights. Of course, those numbers themselves can cause bitterness, as when a college brags about its high number of black students and fails to note that a lot of them are first- or second-generation immigrants with parents who are wealthy and highly educated.


Posted by: Witt | Link to this comment | 05-28-09 3:02 PM
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Are there any metrics apart from partisan ones about which SCOTUSES are considered a successful team, and which ones a disaster?

(I assume Taney's is fairly bipartisanly considered a disaster: civil war on your watch is an unignorable metric)

I've always been fascinated by what actually makes teams work -- the chemistry of variety -- as opposed to what we generally pick teams for: you need a wing forward and you have this much money for the transfer fee; the bass player just OD'd and you need someone who can drive the van; the Easterling Nazgûl met the wrong elf and it's Bugginses turn...


Posted by: tierce de lollardie | Link to this comment | 05-28-09 3:07 PM
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400: I'm still making my way through Nixonland, and it throws out in passing the idea that Nixon's Department of Labor proposed formal affirmative action in the building trades (in, IIRC, Philadelphia) specifically as a way to force Democrats to make an on-the-record decision to take away white union members' ability to pass apprenticeships to their kids in favor of black people. It's really amazing the degree to which 1966 through 1974 seems to have contained, writ small, the entirety of federal politics as I've experienced it in my lifetime.


Posted by: snarkout | Link to this comment | 05-28-09 3:14 PM
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I suspect that people's degree of agreement with your statement depend very heavily on the actual AA programs they have had personal contact with.

This is true as well. At the level of informing appointments to SCOTUS, admittance into an Ivy League school, or hiring at an elite law firm, A-A programs are going to help, in general, to promote candidates from very different class backgrounds than they do at the level of admittance to large public universities, hiring at fire departments, etc.


Posted by: Criminally Bulgur | Link to this comment | 05-28-09 3:19 PM
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399.2: Cosmopolitanism isn't at odds with retaining or respecting one's own, or another's, identity. That's a false dichotomy. Really. I'll read more of Larison later.

But honestly, the quotation there does not, on its face, strike me as accurately describing an "anti-cosmopolitan" perspective at all. Cosmopolitanism does not need to suppose that neutrality and objectivity exist.


Posted by: parsimon | Link to this comment | 05-28-09 3:20 PM
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406: Wow, there is surprisingly little in a quick Google for the Philadelphia Plan. I thought it was better known nationally, but obviously I'm not in a good position to gauge that.

While Presidents Kennedy and Johnson had employed the term "affirmative action," it "did not have much bite" until the Nixon administration announced a revised "Philadelphia Plan" in 1969 requiring federal contractors in the construction industry to hire minority workers. Secretary of Labor George Shultz later extended this plan to nine other cities. Shultz also issued the first guidelines requiring businesses with federal contracts to draw up "action plans" for hiring and promoting women.27 In other words, not until the Nixon administration did "affirmative action" begin to become synonymous with "civil rights." When the Rehnquist court decided in City of Richmond v. J. A. Croson, 109 S. Ct. 706 (1989) that "set asides" for minority construction workers were unconstitutional, much to the surprise of most Americans, legal specialists recalled that they had been initiated with the Philadelphia Plan twenty years earlier by the Nixon administration.

And the more things change, the more they stay the same, as this 2008 news story shows. (Link goes to what is apparently an anti-AA blog.)


Posted by: Witt | Link to this comment | 05-28-09 3:23 PM
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It's really amazing the degree to which 1966 through 1974 seems to have contained, writ small, the entirety of federal politics as I've experienced it in my lifetime.

This is Perlstein's thesis, and before reading the book, I thought it was overstated. But no, Perlstein really makes the case.


Posted by: politicalfootball | Link to this comment | 05-28-09 3:26 PM
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380

Mmm, I don't think James has stated that he has a problem with her.

That is correct. As it happens I prefer conservative judges but they don't have to be white males.


Posted by: James B. Shearer | Link to this comment | 05-28-09 3:33 PM
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389

... Likewise, when he says Sotomayor is an affirmative action appointment, I take this to be a complaint.

And when I say Thomas is an affirmative action appointment?


Posted by: James B. Shearer | Link to this comment | 05-28-09 3:35 PM
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377

... I just can't tell whether someone who graduates summa cum laude from Princeton ...

Ordinarily graduating summa cum laude from Princeton would mean something but if Princeton has been fiddling to get an acceptable number of minorities graduating with honors then it is hard to know what it means for Sotomayor.


Posted by: James B. Shearer | Link to this comment | 05-28-09 3:40 PM
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It's really amazing the degree to which 1966 through 1974 seems to have contained, writ small, the entirety of federal politics as I've experienced it in my lifetime.

As someone from that era, I really with it weren't so.

FWIW, it is a theme of the farther left, that having done relatively poorly in that era, the oligarchs and assholes moved as much of politics as they could to technocratic economics, for example macroeconomic management of the economy from fiscal policy and Congress to monetary policy controlled by an independent FED.


Posted by: bob mcmanus | Link to this comment | 05-28-09 3:42 PM
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Ordinarily graduating summa cum laude from Princeton would mean something but if Princeton has been fiddling to get an acceptable number of minorities graduating with honors then it is hard to know what it means for Sotomayor.

Did they also give white people worse grades so that she could finish second in her class?


Posted by: Criminally Bulgur | Link to this comment | 05-28-09 3:42 PM
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James, do you honestly and seriously think that that colleges engage in university-wide grade tampering to make sure that the right number of people from ethnic group X graduate with honors? That's a level of conspiratorial thinking that has truly never crossed my mind.


Posted by: Witt | Link to this comment | 05-28-09 3:44 PM
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Dude, it would take an extraordinary amount of fiddling, like, well-beyond-the-realm-of-plausibility-and-into-why-not-postulate-the-aliens-already-Mulder fiddling.


Posted by: Cala | Link to this comment | 05-28-09 3:44 PM
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416: I am loathe to give Shearer any more ammunition, but there are certainly plenty of schools that engage in campus-wide conspiracies to make sure that the right number of people who play football aren't placed on academic probation.


Posted by: minneapolitan | Link to this comment | 05-28-09 3:46 PM
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413: so you mean ordinarily like under the ordinary system of legacy admits, right?


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:46 PM
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Maybe all James means is that colleges only accept minorites of whom they're really certain that they'll be able to graduate with honors.


Posted by: nosflow | Link to this comment | 05-28-09 3:47 PM
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418: right, but "not placed on academic probation" and "graduation summa cum laude" are vastly different. Also, an ivy league school is going to fiddle with its grades so that minorities admitted on scholarship can do better than rich white kids likely to donate tons 'o money?

It is a strange world, Shearer's.


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:48 PM
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418: There's a big difference between not flunking the quarterback (since academic probation doesn't take much) and assuring that all minorities get at least a 3.8 GPA so that they can get into Law School where presumably the same thing happened.


Posted by: Cala | Link to this comment | 05-28-09 3:49 PM
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It is entirely appropriate that comment 420 is comment 420.


Posted by: Sifu Tweety | Link to this comment | 05-28-09 3:51 PM
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381

Other people have already answered, but they left out that the name Yglesias is (I believe) Spanish for "church," which I've always thought was funny.

Not really. There are actually two questions. Do most people think of Yglesias as Hispanic (I certainly don't)? Does Yglesias self-identify as Hispanic (which would surprise me)? The fact that he has one Cuban grandparent doesn't answer these questions.


Posted by: James B. Shearer | Link to this comment | 05-28-09 3:51 PM
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423: how come?

I occasionally worried that the honors I received from Chicago were part of a (doomed) attempt to get my father to give the school more money.


Posted by: nosflow | Link to this comment | 05-28-09 3:53 PM
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Shearer doesn't protest 398.


Posted by: David Weman | Link to this comment | 05-28-09 3:55 PM
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I think Shearer's anxiety over affirmative action is perfectly understandable: he's afraid of being tagged with the label of 'token conservative Unf'd commenter,' and wants us to recognize that he has earned this honour through hard work and sheer merit.


Posted by: Mary Catherine | Link to this comment | 05-28-09 3:55 PM
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416

James, do you honestly and seriously think that that colleges engage in university-wide grade tampering to make sure that the right number of people from ethnic group X graduate with honors? That's a level of conspiratorial thinking that has truly never crossed my mind.

Increasing the fraction of students awarded honors would suffice.

And are you all claiming all universities award academic honors in a completely color blind way? That would be nice but I don't see any particular reason to believe it.


Posted by: James B. Shearer | Link to this comment | 05-28-09 3:58 PM
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Not really. There are actually two questions. Do most people think of Yglesias as Hispanic (I certainly don't)? Does Yglesias self-identify as Hispanic (which would surprise me)? The fact that he has one Cuban grandparent doesn't answer these questions.

Well, for the purposes of A-A at certain institutions, he might qualify, which was the point I was originally trying to make in contrasting him with Sotomayor. If he doesn't actually qualify, then use a hypothetical person with the same life history, education, etc., whose father and mother are Cuban.


Posted by: Criminally Bulgur | Link to this comment | 05-28-09 4:00 PM
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425: because you must be high.


Posted by: Sifu Tweety | Link to this comment | 05-28-09 4:01 PM
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I see.


Posted by: nosflow | Link to this comment | 05-28-09 4:02 PM
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And are you all claiming all universities award academic honors in a completely color blind way?

No, I'd honestly expect institutionalized racism to win out over the four years of an undergraduate degree. The student whose parents are wealthy can afford to let their kids work internships or volunteer over the summer. The student who is conventionally attractive* and well-mannered gets more attention during office hours or class time. The student who is like the instructor will be more likely to be mentored.

An academic prize at the end of 4 years is the sum of a thousand little interactions, not some sweeping bureaucratic decision that has federally protected guidelines.


*I'll never forget the moment during a party my first year at grad school when someone pointed out that all of the phd students in our class or surrounding classes were more attractive than should reasonably be fair.


Posted by: | Link to this comment | 05-28-09 4:16 PM
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432 was me.


Posted by: Jackmormon | Link to this comment | 05-28-09 4:17 PM
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James, would you be so eager to downplay the accomplishments of a white man? So thorough in your search for explanations other than merit?


Posted by: essear | Link to this comment | 05-28-09 4:22 PM
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423:I think of Yglesias as what he is, Cuban-American and Jewish. My impression is that MY worships his paternal grandparents, and if possible, admires his father even more. I know I am in awe of his family, and with no right, feel a little protective.

IOW, fuck off Shearer.

Rafael Yglesias, after a 14-yr gap, has published a New Novel

I know other people around here know more, but I think there are great stories about that family, and with all the writers, they may be in print.


Posted by: bob mcmanus | Link to this comment | 05-28-09 4:27 PM
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In my college graduating class, the highest academic honor was won by an African American guy who had so many unfair advantages over the rest of us it was ridiculous. He had racial affirmative action going for him and he was also from a geographically atypical part of the country for double affirmative action and he was valedictorian and he was on the football team and he had the Rhodes Scholarship. to clinch his spot of highest honors he cunningly died shortly before graduation. Some guys get all the breaks.

(true story)


Posted by: unimaginative | Link to this comment | 05-28-09 4:38 PM
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And are you all claiming all universities award academic honors in a completely color blind way? That would be nice but I don't see any particular reason to believe it.

Other people have already answered this better, but I'm operating under the assumption that you automatically get honors if your cumulative GPA is over a certain amount. To control that, a college would have to interfere with each separate professor in each separate department in which you took a class (or at least with enough of them to matter) and pressure them to give you a good grade. Or else go back into your transcript at graduation time and tamper with them retroactively.

Although I do know firsthand of a handful of cases (at one college) where a professor was pressured to give better grades to an ethnic-minority student,* "better" in this case was not-D. I would truly be amazed if any college had managed to sustain that level of tampering across multiple professors, departments, and classes throughout one student's entire career.

*Who was not an athlete.


Posted by: Witt | Link to this comment | 05-28-09 4:43 PM
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I think Shearer's logic is: general grade inflation has led to more academic awards being given at Ivy League institutions, and the culture of general grade inflation is driven by a desire to give minority students more academic awards. The evidence for this is Shearer's opinion.


Posted by: Criminally Bulgur | Link to this comment | 05-28-09 4:52 PM
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The internet informs me that at least currently, honors at Princeton are determined by departments, not by the university as a whole, on the basis of things like grades and a senior thesis. Which might make tampering slightly less absurd than if there were a university-wide GPA requirement, but which doesn't make James any less of an ass.


Posted by: essear | Link to this comment | 05-28-09 4:57 PM
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437

... but I'm operating under the assumption that you automatically get honors if your cumulative GPA is over a certain amount. ...

How the Princeton history department actually awards honors (per this webpage .

Departmental course grades equal 45%. (All History department courses taken in the sophomore through senior years and all approved cognate courses taken in the junior and senior years count automatically. Courses taken freshman year will also be counted if they raise the overall average or if they are necessary to meet any of the requirements.) Junior independent work equals 15%; the senior thesis equals 35%; and the departmental comprehensive examination equals 5%. Note that the latter component counts at least as much as one course and often means the difference for graduation with honors. The Department has no hard and fast statistical averages (or cut-offs) for determining the ranks of honors. These judgments are made at a faculty meeting when the quality of work that has been accomplished by students is reviewed.

Sounds like there is some scope for fiddling (of course things may have differed 30 years ago).


Posted by: James B. Shearer | Link to this comment | 05-28-09 5:05 PM
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Ordinarily graduating summa cum laude from Princeton would mean something but if Princeton has been fiddling to get an acceptable number of minorities graduating with honors then it is hard to know what it means for Sotomayor.

this is a very good point that I hadn't thought of! I'm glad we have at least one commenter who remains vigilant on these issues. Most of us really tend to ignore the numerous unfair advantages received by low-income Hispanic women in our society. For a self-styled "liberal" web site that's astoundingly hypocritical. But that's typical of liberalism, I guess.


Posted by: PGD | Link to this comment | 05-28-09 5:35 PM
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Michelle Obama only graduated cum laude from Princeton, but that was in 1985. I think Ronald Reagan had already begun to dial back the kind of unfair preferences that minorities were receiving from elite institutions. Back in the 70s I think it was just necessary to show up and not be white to get a Summa degree from Harvard/Yale/Princeton, pretty much any of the Ivies. Ah, if I could only have been black or brown back in the 70s...my life would be so awesome today! It would just be a matter of choosing between the Supreme Court and the Presidency. (This is presuming my genetically inferior black IQ wouldn't be tooo low under such a scenario).


Posted by: PGD | Link to this comment | 05-28-09 5:42 PM
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Sounds like there is some scope for fiddling

Yes, it sounds like a conspiracy against the noble ideal of the pursuit of excellence as a precisely quantifiable property that can be accurately measured under carefully controlled laboratory conditions that can be made to look like an academic history department. How clever of you to have unmasked it.


Posted by: Mary Catherine | Link to this comment | 05-28-09 5:44 PM
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It strikes me as odd that someone would be hesitant to call Shearer a racist. He's always going on about IQ, etc.

I hesitate to do this for the same reason I hesitate to call someone a troll. It inevitably turns the conversation into a discussion of definitions. What is a racist? What is a troll?

This routine is well-practiced among the race-IQ people. They say: I'm not hostile to black people, so I'm not a racist. They redefine racism to mean something other than a belief in the intrinsic inferiority of a race.

Fine.

In 374, though, I'm admitting I'm stuck. I don't know how you can rationalize what appears to be pure race-based hostility without admitting to racism. Apparently the way you do it is simply by not responding.


Posted by: politicalfootball | Link to this comment | 05-28-09 5:51 PM
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When did this site turn into Crooked Timber? Arguing with moronic right wing arguments is no fun at all.


Posted by: Robert Halford | Link to this comment | 05-28-09 5:55 PM
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And when I say Thomas is an affirmative action appointment?

I take this as a complaint also, but who knows? If only there were someone here besides me and apostropher who could attempt to articulate your opinion on these matters, it might clear up a lot. Apparently no such person exists.


Posted by: politicalfootball | Link to this comment | 05-28-09 6:04 PM
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If only there were someone here besides me and apostropher who could attempt to articulate your opinion on these matters

Racist.


Posted by: Hamilton-Lovecraft | Link to this comment | 05-28-09 6:08 PM
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MC in 443 (and 427) is making me laugh. Honestly, why are people arguing with Shearer?

Ah. Or, what 445 said.


Posted by: parsimon | Link to this comment | 05-28-09 6:12 PM
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443: as a precisely quantifiable property that can be accurately measured under carefully controlled laboratory conditions

I find that this is one of the core fallacies of much AA whinage, that for jobs, academic, whatever, not only is there some an idealized perfect rank ordering of goodness, deservedness, whateverness of candidates; but also that that ordering is knowable by existing measures and that it is morally incumbent to give out the jobs, awards, whatever in precisely that order.


Posted by: JP Stormcrow | Link to this comment | 05-28-09 6:15 PM
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Honestly, why are people arguing with Shearer?

Because Emerson's not here to do it for us?

But point taken, of course, that it's an exercise in futility. I like James, btw (even though I'm sure he doesn't like me, because I know he doesn't like immigrants), and I don't think he's a troll, and I think he often adds something to the conversation. But on this stuff (race and IQ and etc), I think he's just plain awful, not to mention wilfully obtuse.


Posted by: Mary Catherine | Link to this comment | 05-28-09 7:00 PM
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450.last: Yes, exactly. The IQ and merit-based stuff from James is at this point a broken record, and one tires of it. I don't hate the man -- it's just really tedious.


Posted by: parsimon | Link to this comment | 05-28-09 7:13 PM
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Honestly, why are people arguing with Shearer?

Answering for myself, I'll say that racism of this sort is common and influential. I'm curious what motivates it, how it operates, and how one can usefully respond to it.

I admit I've made more progress on "how it operates" than on the other two.


Posted by: politicalfootball | Link to this comment | 05-28-09 7:20 PM
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452: That assumes that James is arguing, or making statements, or asking questions, in good faith. I'm not convinced of that. If it's all in good faith, he's either incredibly dense, or stubborn; if it's not, he's playing devil's advocate to an insulting degree.

The whole thing makes me shrug, and I simply can't manage to become exercised about it. If others do find themselves engaged, well, go for it.


Posted by: parsimon | Link to this comment | 05-28-09 7:37 PM
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444

In 374, though, I'm admitting I'm stuck. I don't know how you can rationalize what appears to be pure race-based hostility without admitting to racism. Apparently the way you do it is simply by not responding.

Another pointed out as of 374 I had not expressed any hostility towards Sotomayor. And I did respond in 411. My main point was if LB gets to call Thomas an affirmative action hire then conservatives get to call Sotomayor an affirmative action hire. As to whether I have a problem with such hires, not very much regarding Supreme Court appointments which are inherently political and for which merit is not well-defined.


Posted by: James B. Shearer | Link to this comment | 05-28-09 7:38 PM
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I apologize for talking about you as though you're not here, by the way, James.


Posted by: parsimon | Link to this comment | 05-28-09 7:44 PM
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450

... even though I'm sure he doesn't like me, because I know he doesn't like immigrants ...

As I suspect you are aware, I don't dislike all immigrants.


Posted by: James B. Shearer | Link to this comment | 05-28-09 8:27 PM
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Some immigrants have high SAT scores.


Posted by: JP Stormcrow | Link to this comment | 05-28-09 8:34 PM
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My main point was if LB gets to call Thomas an affirmative action hire then conservatives get to call Sotomayor an affirmative action hire. As to whether I have a problem with such hires, not very much regarding Supreme Court appointments which are inherently political and for which merit is not well-defined.

James (addressing you directly because, yeah, I guess I shouldn't talk about you as though you were not really here):

Yes, political appointments do have an inescapably political component, which in this day and age almost invariably includes "identity politics." In the days before women and 'visible minorities' were a part of the mix, other political (regional representation, say) considerations were undoubtedly a factor in these political appointments, and nobody thought the sky was falling and the world was coming to an end when the president picked someone from the south or the midwest or whatever in order to provide a concrete, if also symbolic, reassurance that this or that region/constituency was being taken seriously as an appointment-as-representational part of the larger polity. The notion (heavily pushed and propagandized by the likes of Newt Gingrich) that there was once an abstract and value-neutral set of criteria of selection for political appointments, which putatively objective standard has since been corrupted by unqualified and unworthy affirmative-action whiners and crybabies, is very deeply silly indeed, and is also cynically, and quite viciously, meant to provide cover for a politics of exclusion.

On Thomas, I wasn't here for his nomination, and I only know (oh, I could google it all, of course, but I don't feel like doing that just now) what I have since heard through (admittedly liberally-inflected, or liberally-biased, if you will) channels. The idea seems to be that the GOP thought to hoist those liberals on their own petard by nominating a black guy who defied all their cherished ideals about race relations and such. Well, whatever. Cynical bastards, is what I think, but that's the politics of political appointments, I guess. Though I disagree with Thomas on just about everything, I'm not quite comfortable with calling him a "hypocrite." I think he's a complete and absolute nutter, but I guess he's as qualified as about a hundred other possible candidates. I'm not willing to call him an "affirmative action" candidate, with all the connotations of "unworthy" that this label stupidly implies, because I do think he's qualified (though truly crazy), and I don't want to play that game.

Sotomayer I'm not willing to call an "affirmative action" candiate either. Yes, of course there's an "identity politics" dimension to her nomination (well, duh), but she's an excellent choice and very well-qualified, and it's really dumb and insulting to suggest she's only been nominated because she's this or that or whatever, as against some abstract standard of merit and worthiness that never existed and never will.


Posted by: Mary Catherine | Link to this comment | 05-28-09 9:15 PM
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As to whether I have a problem with such hires, not very much regarding Supreme Court appointments

Smooth. You don't have very much of a problem with Supreme Court appointments. Weaselly by design, and cleverly so. You may be too good at this for me, but I'm going to take another crack.

You have now said directly that:
-Sotomayor is an affirmative action pick.
-You have a problem with affirmative action picks for the Supreme Court.

So one more time: Besides her race, what is your not-much-of-a-problem with Sotomayor's appointment based on?


Posted by: politicalfootball | Link to this comment | 05-28-09 9:35 PM
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I totally agree with 458, except that I was around for the Thomas nomination, and I don't think it's fair to characterize it as a cynical ploy to hoist liberals on their own petard.

Thomas was nominated to fill the seat vacated by Thurgood Marshall. I think that there was a broadly held sense that it would be wrong to return to an all white Supreme Court, and that Bush, who was a fairly decent person, shared that sense. What bothered liberals was that the Republicans wouldn't admit this, and instead insisted that Thomas was the most qualified person for the job when he manifestly was not.

That is not to say that I don't think Thomas was qualified; he was. But on the D.C. Circuit alone there were other judges who were "more qualified" than him on experience, writing, and reputation grounds. Stephen Williams and Laurence Silberman (shudder) come to mind.

For me personally, and I realize this is unfair, but I sort of hold against him that he took Marshall's seat. I know people question Marshall's effectiveness as a justice, but as a person, an American, and a lawyer, he is an absolute hero of mine. Which reminds me that I've heard Elena Kagan talk about Marshall (she clerked for him) and she tells a story about how Justice Burger was in charge of planning the celebration for the 200th anniversary of the constitution and had the idea of having the justices dress up and reenact the signing. Marshall joked that he supposed he would dress up in short pants and serve the drinks. I just love that story.


Posted by: tulip | Link to this comment | 05-28-09 11:07 PM
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Hrm. You know, I'm realizing after reading this that what I was trying to do above (and I don't think I successfully did) was undercut 'that game'. I don't accept the negative connotations of 'affirmative action', nor (to say the same thing a different way) do I accept that for any position there can be identified someone who 'deserves' it on merit, and who is wronged if someone else gets the job. Thomas is on the Court because they wanted to nominate a black conservative, and to that end they nominated someone with a resume that's comparatively weak compared to other SC nominees of the same era. That makes him, in my lexicon, an 'affirmative action' hire.

And he's been a perfectly respectable Justice. I won't say good, because I disagree with him about a lot of stuff, and think that the positions of his that I disagree with make him a bad Justice, but he's competent by the standards of the SC, which is a very high standard.

What I meant to imply by pointing out that he was an affirmative action hire, is that finding his nomination acceptable necessarily implies (1) that demographically conscious hiring, which is all that 'affirmative action' necessarily means, isn't a priori wrong or evidence that the person hired that way will be less competent, and (2) that remains true (that it's not 'necessarily' wrong) even where the person hired would have been a very implausible candidate but for their demographic characteristics. For anyone who doesn't think Thomas's nomination was wrongful, they haven't got a leg to stand on being opposed to 'affirmative action' generally.

(I could have put more words in this comment into single quotes, but it would have looked ostentatious.)


Posted by: LizardBreath | Link to this comment | 05-29-09 7:42 AM
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ostentatious s/b 'ostentatious'


Posted by: apostropher | Link to this comment | 05-29-09 7:50 AM
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s/b s/b 's/b'


Posted by: JP Stormcrow | Link to this comment | 05-29-09 7:57 AM
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Thomas is on the Court because they wanted to nominate a black conservative, and to that end they nominated someone with a resume that's comparatively weak compared to other SC nominees of the same era. That makes him, in my lexicon, an 'affirmative action' hire.

I do, though, find it hard to believe that there aren't/weren't black conservatives with strong resumes. If so, then nominating a candidate with a weak resume sounds more like tokenism than affirmative action. (And I see that Bitch yesterday did indeed offer a much clearer distinction between the two concepts here.) Of course, much of this also hinges on how we choose to define "strong" vs. "weak" resumes.


Posted by: Di Kotimy | Link to this comment | 05-29-09 8:12 AM
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semi-relevant, but mostly just good fun for bored lawyers!


Posted by: Di Kotimy | Link to this comment | 05-29-09 8:24 AM
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465: Skeletor: clearly an affirmative action pick.


Posted by: essear | Link to this comment | 05-29-09 8:29 AM
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do you honestly and seriously think that that colleges engage in university-wide grade tampering to make sure that the right number of people from ethnic group X graduate with honors?

I know that colleges do this for athletes, but don't colleges also often identify "at-risk" students and provide them with extra support?

Certainly, that support is often there for all students, if they make the effort to find it. But, for some at-risk students, do they not make special efforts to identify them and follow up with them?

(By at-risk, I really mean students with lower test scores or grades.)


Posted by: will | Link to this comment | 05-29-09 8:30 AM
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464: I don't actually know who was in the pipeline when Thomas was appointed, but I wouldn't be surprised if there really weren't any black conservatives with resumes that made them more plausible SC picks than Thomas was. There just aren't a heck of a lot of black conservatives out there -- some, but they're not a large part of the population. And Thomas's resume was unusual for a SC nominee to the point that his nomination was implausible in the absence of his status as a black conservative, in that he didn't have a record as an academic, or an advocate before the Court, or much of a record as a jurist, but was generically impressive -- heading the EEOC isn't nothing.


Posted by: LizardBreath | Link to this comment | 05-29-09 8:33 AM
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I would take Witt's sentence and change it to:

"colleges engage in [great efforts] to make sure that the right number of people from ethnic group X graduate with honors."

I dont find anything wrong with that, but it would be incorrect to assert that colleges and professors do not have this pressure.


Posted by: will | Link to this comment | 05-29-09 8:34 AM
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464: I don't actually know who was in the pipeline when Thomas was appointed, but I wouldn't be surprised if there really weren't any black conservatives with resumes that made them more plausible SC picks than Thomas was. There just aren't a heck of a lot of black conservatives out there -- some, but they're not a large part of the population. And Thomas's resume was unusual for a SC nominee to the point that his nomination was implausible in the absence of his status as a black conservative, in that he didn't have a record as an academic, or an advocate before the Court, or much of a record as a jurist, but was generically impressive -- heading the EEOC isn't nothing.


Posted by: LizardBreath | Link to this comment | 05-29-09 8:35 AM
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That was bizarre -- I was trying to post a new comment, and somehow posted an old one again. Let me try to reconstruct the new one.


Posted by: LizardBreath | Link to this comment | 05-29-09 8:36 AM
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467, 470: Isn't the distinction there between academic support intended to keep people (athletes and members of disadvantaged groups particularly) from flunking out or from getting into real academic difficulty, and pressure to make sure that people from disadvantaged groups are given academic honors regardless of their accomplishments? The first happens all the time, but the second seems very distinct and really implausible.


Posted by: LizardBreath | Link to this comment | 05-29-09 8:38 AM
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That was bizarre -- I was trying to post a new comment, and somehow posted an old one again. Let me try to reconstruct the new one.

Something similar happens to me all the time. I have a brilliant thought in my mind, but something less than that gets posted.


Posted by: will | Link to this comment | 05-29-09 8:39 AM
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473: Mine got polluted with typos and bad writing. Very strange.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 8:43 AM
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Jesus. Yes, colleges have programs to help at-risk students. These are students who are doing POORLY, not the ones winning prizes. Yes, colleges worry about retention of minorities. This is not accomplished, however, by giving them summa cum laude.

Frankly, this line of argument is beneath everyone on this blog.

Seriously? The evidence we have that Princeton gave Sotomayor special treatment that lead to her graduating summa cum laude (based on course grades) and second in her class (does Princeton also have a policy of giving white kids lower grades if it looks like they'll do better than Hispanic women? by the standards in use here, it's practically a truth!) is... well, Shearer thinks it's plausible because she's Hispanic.



Posted by: Cala | Link to this comment | 05-29-09 8:44 AM
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LB:

I just mean that there is serious pressure to insure that they succeed and flourish.

Once you accept that premise, I do not think it is really implausible to suggest that pressure is sometimes imposed "regardless of their accomplishment."

Not widespread and systematic. But, I would be shocked if it does not happen at a greater rate than for non-minorities or non-at-risk students.

I believe that the professors here have previously mentioned being pressured to give higher grades all the time simply bc a student or parent complained. Is it that much of a stretch to assume it goes beyond that when there are very real consequences to an institution if their minorities students are not flourishing.

That said, I am fairly confident that the desire and overwhelming effort is for them to succeed on the merits.


Posted by: will | Link to this comment | 05-29-09 8:44 AM
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I keep writing intelligent and insightful comments, but somehow they get turned into cock jokes by the time they post. I suspect a horrible and degenerate greasemonkey script.


Posted by: apostropher | Link to this comment | 05-29-09 8:46 AM
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"colleges engage in [great efforts] to make sure that the right number of people from ethnic group X graduate with honors."

I dont find anything wrong with that, but it would be incorrect to assert that colleges and professors do not have this pressure.

What on earth is your evidence for this?


Posted by: Sir Kraab | Link to this comment | 05-29-09 8:47 AM
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Is it that much of a stretch to assume it goes beyond that when there are very real consequences to an institution if their minorities students are not flourishing.

Yes.


Posted by: Cala | Link to this comment | 05-29-09 8:48 AM
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Cala:

I have assumed that Sotomayer succeeded at school on her own merits. One only has to look at her career to see that.

And, I dont want to spend a lot of time on this issue bc I think it is distracting, but, to finish my thought, twenty years ago, do you not think that a college received some benefit by a minority graduating at the top of her class??

I think the benefit isnt as much now, but back then, it was different.


Posted by: will | Link to this comment | 05-29-09 8:48 AM
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I believe that the professors here have previously mentioned being pressured to give higher grades all the time simply bc a student or parent complained.

And the entitled students and parents who thus complain are probably white, so you could equally well try to make an argument the other way. Srsly, why are you trying to prop up Shearer's racist, sexist idiocy?


Posted by: essear | Link to this comment | 05-29-09 8:48 AM
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There are also substantial pressures to provide extra assistance to legacy admissions and the children of large donors, including potential as well as actual large donors.


Posted by: togolosh | Link to this comment | 05-29-09 8:49 AM
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And the entitled students and parents who thus complain are probably white, so you could equally well try to make an argument the other way.

I just said that.


Posted by: will | Link to this comment | 05-29-09 8:50 AM
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476: I just mean that there is serious pressure to insure that they succeed and flourish.

See, pressure to make sure that minority students 'succeed' in the sense of 'not flunk out' certainly exists. But what was suggested is that there's pressure to treat successful, competent work from minority students as exceptional -- to treat B+ work from a minority student as A+ work. That sounds generally implausible to me -- obviously, higher education is a big place, and anything is going to happen sometimes, but I don't see any reason to think that sort of thing is common.


Posted by: LizardBreath | Link to this comment | 05-29-09 8:51 AM
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Help!! I'm trapped in the tar pit.


Posted by: will | Link to this comment | 05-29-09 8:52 AM
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do you not think that a college received some benefit by a minority graduating at the top of her class

I honestly have no idea what tangible benefits you believe would accrue to the college.


Posted by: apostropher | Link to this comment | 05-29-09 8:52 AM
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I just mean that there is serious pressure to insure that they succeed and flourish.

Once you accept that premise, I do not think it is really implausible to suggest that pressure is sometimes imposed "regardless of their accomplishment."

I guess I just don't accept that premise -- though perhaps it's better if the academics here weigh in. I'm basing this largely on my observation of lawfirm 'culture' in which exists periodic handwringing about retention of women and minorities, and consultants and seminars hired to talk about retention of women and minorities, and then absolutely no genuine pressure whatsoever to help women or minorities flourish. Though every dumbass white dude who gets passed over for partnership is convinced "his" spot was taken by that black chick, and dumbass white dudes who did make partner confide behind closed doors that they assume that hispanic kid got hired to fill a quota and really isn't very bright. And then they take the white boys to client pitches and give the white boys leadership roles and ask the girls to water their plants or check their mail and then scratch their heads over why they aren't progressing in terms of diversity and throw up their hands because the women must all be leaving because they want families and the minorities just couldn't cut it.


Posted by: Di Kotimy | Link to this comment | 05-29-09 8:55 AM
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We're of course ignoring the possibility that Sotomayor just slept with people to get her grades, honors, and awards. After all, it would be incorrect to assert that no students have ever increased their grades by playing up their sexuality will stand a very good chance of winning awards. And, she's female, so we can't rule it out.

More seriously, the institutional pressures for student success tend not to be at the level of an individual student's class grades. It's more likely that the football player gets pushed into Fashion Management as a major than it is that he is given all As in Chemical Engineering. It's more likely that at-risk students get tutoring rather than professors being told to give them As.


Posted by: Cala | Link to this comment | 05-29-09 8:56 AM
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472: One of the insane-making things about this whole freaking episode is that I personally do not think graduating whatever-she-was* is prima facie evidence that she is "qualified" for the Supreme Court, but it *is* prima facie evidence that the repugnant wingnut "not smart enough" trope is utterly fatuous and intellectually dishonest. Bazz fazz (and apparently pwned by everyone on the blog in the meantime).

*As part of not encouraging the idealized correct-at-a-microscopic-scale objective ranking fallacy associated with this, I don't care whether she was 1st, 2nd whatever, but she clearly was a relatively high performer among a population of very smart people and is well past any threshold for requisite intelligence.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 8:57 AM
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487: Heh.


Posted by: LizardBreath | Link to this comment | 05-29-09 8:59 AM
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I'm basing this largely on my observation of lawfirm 'culture' in which exists periodic handwringing about retention of women and minorities, and consultants and seminars hired to talk about retention of women and minorities, and then absolutely no genuine pressure whatsoever to help women or minorities flourish.

But, people often are told to hire a female divorce lawyer! Waaaaaa

I agree with your comment about lawfirms.


Posted by: will | Link to this comment | 05-29-09 9:01 AM
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474 got s/b get See what happens! Fix pls, neb.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 9:01 AM
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I guess I just don't accept that premise -- though perhaps it's better if the academics here weigh in.

The pressures for minorities and under-represented groups to do well is there, but it tends to be at the aggregate level rather by tinkering with individual grades in the classroom. So, philosophy might wonder how to get more female majors, but it's not going to take the form of a directive to give all the women in the philosophy classes As. There are programs and tutoring available for students who do poorly so that they improve, but not directives to give them As.

I don't know what to say except that I have given women and minorities bad grades when they've earned them and I haven't been pulled aside by the dean to give them better grades, even in the one case where I know it kept the student from continuing at the school and was in contact with the student's dean the whole term.

And beyond that, there's a huge difference between institutional pressure to keep up retention rates and this hypothetical pressure to turn a mediocre student into an A scholar. From the perspective of the university, it's the graduation and retention rate that matters far more than whether Sotomayor, S. gets an A or an A-.


Posted by: Cala | Link to this comment | 05-29-09 9:02 AM
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More seriously, the institutional pressures for student success tend not to be at the level of an individual student's class grades. It's more likely that the football player gets pushed into Fashion Management as a major than it is that he is given all As in Chemical Engineering. It's more likely that at-risk students get tutoring rather than professors being told to give them As.

I agree with all of these statements. They also use "tend."


Posted by: will | Link to this comment | 05-29-09 9:02 AM
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And, she's female, so we can't rule it out.

Evidence!
"...my life here has been made-up of little parts from all of you."


Posted by: apostropher | Link to this comment | 05-29-09 9:03 AM
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and more likely.


Posted by: will | Link to this comment | 05-29-09 9:03 AM
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I will add that I think it is wrong to assume that grade-tinkering happened for a minority, when I believe that it is fair more likely to have happened for a legacy or white student.


Posted by: will | Link to this comment | 05-29-09 9:07 AM
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tulip: I totally agree with 458, except that I was around for the Thomas nomination, and I don't think it's fair to characterize it as a cynical ploy to hoist liberals on their own petard.

*I* was around for the Clarence Thomas nomination, and I was reading all the oped columnists (and letters to the editor), and initially a lot of Republicans were not happy that George Bush had 'given in to liberal demands' to maintain a black seat on the SC, because that meant Thomas was 'an affirmative action pick'. It was stated that Bush should not be appointing 'affirmative action picks' because conservatives were against all that, and the choice indicated a lack of faith in the anti-affirmative action stance, and raised doubts that Bush was true conservative. Also, the rumblings ran, there was a long list of more qualified conservative judges, people who were like Scalia, who had sterling academic records and distingushed careers, and were, notably, white. Moreover, there was disappointment because Thomas, how shall we say?... might not be an automatic vote against 'racial preferences' and might be some kind of stealth liberal, because, well, you know.

Meanwhile, your R operator types were pleased that George had outfoxed the liberals by appointing someone who could not be rejected by the D's, who controlled the Senate that the time. Eventually the grumbling died down after presidential liasons to the right were able to get out and assure everybody that Thomas would vote the right way on important questions. It took a while, but everyone decided that Thomas was an acceptable choice.

Then the committee sorta forgot to deal properly with Anita Hill's complaints when she filed them before hearings began. Things got exciting. When D's complained about Thomas before and during the hearings, a wave of opeds would pop up accusing liberals of being racists, although the 'too!' was left silent. And of course, it was discovered that Anita Hill must be a slutty communist plant because she's, well, you know.

Then, in the Senate hearings, a bunch of old white guys sat around talking about {holds hands way apart} the size of Clarence Thomas' cock.

Anyways, at the time, I was youngish and didn't really do a good job of translating the initial wave of conservative disgruntlement.

max
['I guess they've felt for some years previous to the present that they weren't making themselves really... clear.']


Posted by: max | Link to this comment | 05-29-09 9:07 AM
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A lot of the sophisticated political speculation about Sotomayor's impact on the voters - including this and this from fivethirtyeight - naturally focuses on Hispanic voters, but overlooks something else that I think is important. A lot of voters who aren't Hispanic just don't like racism.

Republicans were always going to have a problem because of the changing demographics of the country - "subtle" racism isn't subtle to the people who are subject to it - but the strategy of racial code words is coming undone as conservatives criticize Sotomayor for the pronunciation of her name or the food she likes.

Lee Atwater must be spinning in his grave. Here's the famous Atwater quote on this, courtesy of Wikipedia:

Questioner: But the fact is, isn't it, that Reagan does get to the Wallace voter and to the racist side of the Wallace voter by doing away with legal services, by cutting down on food stamps...?
Atwater: You start out in 1954 by saying, "Nigger, nigger, nigger." By 1968 you can't say "nigger"--that hurts you. Backfires. So you say stuff like forced busing, states' rights and all that stuff. You're getting so abstract now [that] you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites.
And subconsciously maybe that is part of it. I'm not saying that. But I'm saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me--because obviously sitting around saying, "We want to cut this," is much more abstract than even the busing thing, and a hell of a lot more abstract than "Nigger, nigger."

The Internet turns out to be an unanticipated challenge to Republicans, as their grassroots racist voices start to get traction. Who is going to tell this nitwit to shut up?



Posted by: politicalfootball | Link to this comment | 05-29-09 9:08 AM
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Yes, let my unwillingness to speak in sweeping generalizations that take into account all universities, student-athletes, and situations, be taken as evidence that the Princeton faculty were each individually pressured to give Sotomayor an A.


Posted by: Cala | Link to this comment | 05-29-09 9:09 AM
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Yes, let my unwillingness to speak in sweeping generalizations that take into account all universities, student-athletes, and situations, be taken as evidence that the Princeton faculty were each individually pressured to give Sotomayor an A.

Have I ever said that? Implied that? No. In fact, I said the opposite.

I was simply responding to the comment that there is NO pressure for minorities to get awards or good grades at a college. There is.


Posted by: will | Link to this comment | 05-29-09 9:11 AM
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494: Seriously, if all you're saying is that "It's not impossible that on some occasions a professor gives a minority student a higher grade out of a desire to see them succeed," sure, it's not impossible. Everything's going to happen sometimes. As a corollary:

It's not impossible that on some occasions a professor gives a minority student a lower grade out of a subconscious disbelief that they were capable of doing the work they submitted.

It's not impossible that on some occasions a professor gives a minority student a lower grade out of a consciously racist desire to see them fail.

It's not impossible that on some occasions a professor gives a white student a higher grade because the white student fits the professor's preconceptions about who's likely to succeed.

It's not impossible that on some occasions a professor gives a white student a higher grade out of a desire to make up for the unfair disadvantage the white student's been suffering under competing with minorities advantaged by affirmative action.

Anything can happen sometimes, but there's not much point in relying on that fact as support for a statement unless you want to talk about how it happened either in some specific circumstance or it's likely to happen systematically.


Posted by: LizardBreath | Link to this comment | 05-29-09 9:11 AM
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I would also think it unlikely that a program would conspire to give a legacy student summa cum laude. It's known as the "gentleman's C" for a reason.


Posted by: Cala | Link to this comment | 05-29-09 9:11 AM
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502:

Ok. I agree with all of 502.


Posted by: will | Link to this comment | 05-29-09 9:12 AM
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501: Repeatedly saying "we can't rule out X, not that I want to imply X, but surely X is possible" looks a lot like insinuating X.


Posted by: essear | Link to this comment | 05-29-09 9:13 AM
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501: Actually, you were responding to Witt's question: "do you honestly and seriously think that that colleges engage in university-wide grade tampering to make sure that the right number of people from ethnic group X graduate with honors?", which is pretty far from what you're now arguing against.


Posted by: LizardBreath | Link to this comment | 05-29-09 9:14 AM
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ITS NOT IMPOSSIBLE TO BE LOVED BY ANYONE


Posted by: OPINIONATED TOM JONES | Link to this comment | 05-29-09 9:14 AM
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506 crossed with 504, and I'll stop piling on now.


Posted by: LizardBreath | Link to this comment | 05-29-09 9:14 AM
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507: Some days, man, it sure feels that way.


Posted by: Di Kotimy | Link to this comment | 05-29-09 9:19 AM
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"...my life here has been made-up of little parts from all of you."

It isn't 100% impossible that the nominee has vagina dentata. We can't rule it out.


Posted by: Robert Halford | Link to this comment | 05-29-09 9:19 AM
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Actually, you were responding to Witt's question: "do you honestly and seriously think that that colleges engage in university-wide grade tampering to make sure that the right number of people from ethnic group X graduate with honors?", which is pretty far from what you're now arguing against.

And this was my comment:

"colleges engage in [great efforts] to make sure that the right number of people from ethnic group X graduate with honors."

I dont find anything wrong with that, but it would be incorrect to assert that colleges and professors do not have this pressure."


Posted by: will | Link to this comment | 05-29-09 9:21 AM
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510: Alternatively, she may have been cobbled together from body parts of deceased Princetonians and reanimated à la Frankenstein's monster.


Posted by: essear | Link to this comment | 05-29-09 9:22 AM
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511: And I explained why I find that to be incorrect to assert. I didn't make the generalization categorical enough and sweeping enough for your tastes, but there's just not a lot of pressure to ensure that Hispanic women graduate summa cum laude.


Posted by: Cala | Link to this comment | 05-29-09 9:26 AM
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I'll stop piling on now
Darn it. I had Cala, you, and Di! Where is oudemia and the rest of the women??! Back off apo and essear!


Posted by: will | Link to this comment | 05-29-09 9:26 AM
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511: There's still a big difference between your reformulation: "colleges engage in great efforts to make sure that the right number of people from ethnic group X graduate with honors," which seems very unlikely to me, and the weaker claim that the assertion "that there is NO pressure for minorities to get awards or good grades at a college," is false. "Colleges engage in great efforts" is very far from "there is more than NO pressure".


Posted by: LizardBreath | Link to this comment | 05-29-09 9:28 AM
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Obviously, she was belittling the endowment of her classmates. SO MUCH FOR EMPATHY.


Posted by: apostropher | Link to this comment | 05-29-09 9:30 AM
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Princeton's endowment is large and tumescent.


Posted by: Cala | Link to this comment | 05-29-09 9:33 AM
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464

I do, though, find it hard to believe that there aren't/weren't black conservatives with strong resumes. ...

There was also an age criteria.


Posted by: James B. Shearer | Link to this comment | 05-29-09 9:35 AM
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Maybe she was simply "made-up," a collective hallucination of the Princeton student body.

Can we really rule out the possibility that, instead of being a distinguished Latina jurist, she is in reality a product of our collective unconscious, a dream that we are all having at the same time. I, for one, say no.


Posted by: Robert Halford | Link to this comment | 05-29-09 9:37 AM
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our collective unconscious,

Speak for yourself, figment.


Posted by: OPINIONATED SOLIPSIST | Link to this comment | 05-29-09 9:39 AM
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515:

Geez. Now we are going to start parsing again.

I do think that they make great efforts for minorities to succeed. As they should.


Posted by: will | Link to this comment | 05-29-09 9:39 AM
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eh, maybe that was too strong....

I'm stopping now.


Posted by: will | Link to this comment | 05-29-09 9:40 AM
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the Princeton student body

Which is terribly self-conscious about its little parts.


Posted by: apostropher | Link to this comment | 05-29-09 9:40 AM
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517: From The Bostonist earlier this year, Like a man in a Speedo swimming obliviously on a cold day, Harvard has yet to take an accurate measure of its endowment.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 9:41 AM
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Princeton's endowment is large and tumescent.

"Although we cannot know what the next six months will bring, we believe it is prudent for the University to plan for the possibility that its endowment will have declined by 25% at the end of the fiscal year."


Posted by: apostropher | Link to this comment | 05-29-09 9:44 AM
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Does anyone have the link to the study about how a white felon gets hire over a black guy with no record?

I want to email that to crazy cousins complaining about the poor white man.


Posted by: will | Link to this comment | 05-29-09 9:44 AM
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525: Everyone's endowment is off by 25%.


Posted by: Cala | Link to this comment | 05-29-09 9:45 AM
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472

... and pressure to make sure that people from disadvantaged groups are given academic honors regardless of their accomplishments? The first happens all the time, but the second seems very distinct and really implausible.

It isn't regardless of their accomplishments, they would still be competing against other disadvantaged students (just as for admissions). And the second seems very plausible to me especially for the individual awards given by decision of the faculty to graduating seniors. If say a department gives out 8 of these you find it really implausible that there is pressure to include minorities? And you can create awards tailored for minorities like "most improved".


Posted by: James B. Shearer | Link to this comment | 05-29-09 9:45 AM
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526: Coincidentally, the study was performed at Princeton.


Posted by: apostropher | Link to this comment | 05-29-09 9:46 AM
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521: Will, we're talking, specifically, about Judge Sotomayor and about claims that her minority status affected her position at the very top of her class academically at Princeton.

If you're talking about 'great efforts' to keep disadvantaged students from flunking out of school or having difficulty, you're right, there are such efforts, they're probably not great enough, and they haven't got anything to do with Judge Sotomayor's academic honors. Changing the subject is fine, but the reaction you're getting comes from people not understanding that you're not talking about the plausibility of claims that Judge Sotomayor's honors don't accurately represent her actual academic accomplishments.

If you're talking about 'pressure' to hand out academic honors to minorities generally regardless of the quality of their work, making claims that Judge Sotomayor's honors don't accurately represent her actual academic accomplishments plausible (even if specifically untrue), I don't see any evidence that such pressure exists on any systematic level beyond "It's a big world, and everything's going to happen someplace."


Posted by: LizardBreath | Link to this comment | 05-29-09 9:46 AM
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Actually it appears that Pager did the research while a grad student at Wisconsin. But that should be enough to get your google on.


Posted by: apostropher | Link to this comment | 05-29-09 9:48 AM
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awards tailored for minorities like "most improved"

Dude. Stop digging.


Posted by: apostropher | Link to this comment | 05-29-09 9:49 AM
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Wow, I can't believe this argument is still going on.

I've learned something new, anyway. The only college whose honors-rules I ever knew decided them based solely on cumulative GPA. I truly had no idea* that this was not the policy everywhere.

*And had not given it more than three seconds' thought.

In another note, the Pew Hispanic Center humorously but thoroughly addresses the question Is Sotomayor the first Hispanic nominated to the Supreme Court (Or it was it Benjamin Cardozo)?


Posted by: Witt | Link to this comment | 05-29-09 9:50 AM
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Has Shearer ever shown the slightest inclination to stop digging? The man's a rhetorical earth-moving machine.


Posted by: LizardBreath | Link to this comment | 05-29-09 9:50 AM
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He's going for "most improved" commenter.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 9:52 AM
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The only college whose honors-rules I ever knew decided them based solely on cumulative GPA. I truly had no idea* that this was not the policy everywhere.

From the link, Princeton's is based on cumulative GPA, too, but it weights the senior thesis and other academic tasks more heavily. It's still GPA based. The awards she won are not "most improved" or "biggest smile."


Posted by: Cala | Link to this comment | 05-29-09 9:53 AM
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rhetorical earth-moving machine

This would look great on a business card.


Posted by: apostropher | Link to this comment | 05-29-09 9:54 AM
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"most improved" or "biggest smile."

Most Articulate.


Posted by: apostropher | Link to this comment | 05-29-09 9:55 AM
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535: "most likely to be an affirmative action pick for the Supreme Court"


Posted by: JP Stormcrow | Link to this comment | 05-29-09 9:55 AM
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"Spiciest."


Posted by: oudemia | Link to this comment | 05-29-09 9:57 AM
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Comments like 535 are exactly the sort of thing we weigh alongside raw IQ scores when we vote on the Unfogged awards at the end of the year.


Posted by: apostropher | Link to this comment | 05-29-09 9:58 AM
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It's Shearer's apparently total ignorance of internal Ivy League practices that lets him extend his generalized belief that the system is rigged for minorities to extend to Sotomayor's summa/class rank qualifications. If you have no idea with how elite universities actually work, then it seems plausible enough that there could be preferences for grades or honors -- there are preferences for admissions, right? And aren't admissions the most important thing of all?

But if your generalized belief in black/brown inferiority is strong enough that your default belief is that any qualification is an unearned gift from the liberal establishment -- even in cases where you have no experience and can't really know -- then you're kind of, well, racist.


Posted by: PGD | Link to this comment | 05-29-09 10:00 AM
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We're also ignoring the possibility that summa cum laude at Princeton doesn't mean anything much.


Posted by: Cala | Link to this comment | 05-29-09 10:01 AM
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541: So I'm doomed, is what you are saying. A guy who grew eating jell-o just doesn't have a chance around here.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 10:03 AM
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But I do find it sort of ironic that one reason we all immediately spot Shearer's claim as absurd is that so many people here are liberal elitists with lots of personal experience with practices at Ivy universities.

Basically, the unspoken Ivy affirmative action bargain is: we'll lower admissions standards somewhat (but only somewhat), but once you're in we won't give you the true high achiever imprimatur (high honors, class rank, glowing recommendations) unless you earn it. That was even more true in the 70s, pre grade inflation, than it is today. But it's still more or less true today.


Posted by: PGD | Link to this comment | 05-29-09 10:04 AM
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So I'm doomed, is what you are saying.

It depends on what you're going to do for my endowment, JP.


Posted by: apostropher | Link to this comment | 05-29-09 10:05 AM
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PF:

Atwater: You start out in 1954 by saying, "Nigger, nigger, nigger." By 1968 you can't say "nigger"--that hurts you. Backfires. So you say stuff like forced busing, states' rights and all that stuff. You're getting so abstract now [that] you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites.
That's a pretty good echo of John C. Calhoun's pro-slavery strategy of the 180's and afterwards. Keep tariffs (taxes) low, don't allow the Federal government to go stronger, that way southern agriculture would be more profitable and the Feds could not grow strong enough to threaten the 'positive good' of slavery.

But I'm saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me--because obviously sitting around saying, "We want to cut this," is much more abstract than even the busing thing, and a hell of a lot more abstract than "Nigger, nigger."
It was a theory.

The Internet turns out to be an unanticipated challenge to Republicans, as their grassroots racist voices start to get traction.

Hell, as they start to drive the party as the leadership competes to curry favor. 'The way to lead is to figure out where the masses are going and get out in front of them.'

And the R masses clearly think they're an oppressed minority.

max
['Which is why we have Georgia recycling South Carolina's declaration of secession.']


Posted by: max | Link to this comment | 05-29-09 10:06 AM
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543:

[Steele} added that instead of "slammin' and rammin'" on Sotomayor, Republicans should "acknowledge" the "historic aspect" of the selection and stick to a "cogent, articulate argument" against her.

Yes, Republicans, stop "slammin' and rammin'" Sotomayor and get back to your regularly scheduled gang rapes.


Posted by: Robert Halford | Link to this comment | 05-29-09 10:06 AM
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Michael Steele really is the gift that keeps on giving.


Posted by: apostropher | Link to this comment | 05-29-09 10:11 AM
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I've been in a couple different Universities as a graduate student. The departments I've been in do look at things like grades, retention and dropout rates, and, if there are obviously troubling patterns with respect to minorities or women, try to figure out what to do about them. "What to do" never involves giving women or minorities better grades than they deserve; however, it might mean extra attention, feedback, etc. The closest thing to a troubling "A-A gradescale" I've encountered is one professor for whom I TA'd who did not want us to mark people down for grammar and diction problems (this was at a school and in a class with a lot of ESL students). We were told to grade them on content and steer them to the University's resources for writing help.

As has been pointed out, this has nothing to do with the kind of student who could graduate Summa from Princeton. If I were a history TA at Princeton, about the only special attention I might give a young Sotomayor is that, confronted with a Latina with obvious aptitude in an academic discipline where Latinas are rare, I might seek her out, ask her what her career plans are, and encourage her into an academic career if she showed genuine interest. Such extra attention might redound to her benefit and give her some sort of advantage over other students, but this is obviously far removed from "tinkering to give minorities honors degrees." No one is sitting around with a set of statistics and sweating about how they're going to meet the goals of some 5-year plan set by the college's Commissar of Diversity.


Posted by: Criminally Bulgur | Link to this comment | 05-29-09 10:17 AM
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546: It depends on what you're going to do for my endowment, JP.

Envy it.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 10:22 AM
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Yes, let my unwillingness to speak in sweeping generalizations that take into account all universities, student-athletes, and situations, be taken as evidence that the Princeton faculty were each individually pressured to give Sotomayor an A.

Well, Cala, you can be as sarcastic as you like, but can you think of some other reason a Hispanic woman might get good grades? Hah! I got you there!


Posted by: politicalfootball | Link to this comment | 05-29-09 10:23 AM
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551: It's lack of willingness to apply proper stimulus that's brought Apo's endowment to its current parlous state.


Posted by: LizardBreath | Link to this comment | 05-29-09 10:29 AM
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And you can create awards tailored for minorities like "most improved".

I have never seen nor heard of such an award in an academic setting. A "most improved" award sounds like something that RE/MAX hands out to one of its rookie real estate agents at its annual banquet or something.

(Actually, I have no evidence that RE/MAX, or any other real estate agency, has a "most improved" award, or an annual banquet. But since this is the internets, why not speculate boldly?).


Posted by: Mary Catherine | Link to this comment | 05-29-09 10:30 AM
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As a (lurking) academic, I will weigh in. I've taught in three universities (four if you count grad student teaching) and I have never even heard of pressure to boost grades (or even performance) of minorities or women. There is definitely a culture of trying to help students who are in danger of failing or dropping out and also of helping those who are not living up to their (perceived) potential. Shearer's position is not based in any reality I've observed. (The universities in my history are all large highly ranked universities, though not ivies.)


Posted by: jackie | Link to this comment | 05-29-09 10:31 AM
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Has Shearer ever shown the slightest inclination to stop digging?

James is happy to dig as long as it's at the expense of clarity. Despite numerous attempts, I still haven't gotten him to weigh in on the subject of Sotomayor's qualifications for the Court.

One more time, James: Besides her race and gender, what causes you to think Sotomayor is an affirmative action choice? Is any instance of hiring a nonwhite, nonmale necessarily a case of affirmative action?


Posted by: politicalfootball | Link to this comment | 05-29-09 10:35 AM
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She is clearly smart. She has plenty of experience. Her qualifications really cannot be legitimately attacked.

She appears to be a moderate.

I am going out on a limb and say that in 10 years, we will be more disappointed in her than the right.


Posted by: will | Link to this comment | 05-29-09 10:57 AM
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Obama has a golden opportunity to swing the Court to the left, but it appears that he has chosen not to do so.


Posted by: will | Link to this comment | 05-29-09 10:58 AM
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Right on schedule! Dreher:

A caller who identified himself as a white male Obama voter said he was troubled by the implications of Sotomayor's statement re: the relative wisdom of empathetic Latina judges over white males. The caller said that no white man could get away with making that comparison. Of course he's right, and I think much of the outrage from the right over what Sotomayor says comes not because white people think that your personal circumstances have no bearing on how you see the world, but because of the double standard employed in speaking honestly about such things. (Daniel Larison speaks to this point in a couple of places on his blog; do go read them).
The caller was resentful of the idea of "white male privilege," saying that he's a white male who drives a truck for $14 an hour, and if that's anybody's idea of privilege, they can have it.
I think this man is absolutely right to resent how in these media discussions, it's assumed that all white men must be Rush Limbaugh or Warren Buffett. In point of fact, through my family's fire department discussions, I know of a working-class white man who worked very hard to get onto the department squad, but was routinely turned down for racial reasons, despite his superior scores. He was told point-blank by the chief that the chief would like to hire him, but there was a quota problem. I know this guy somewhat, and he was, and I assume still is, a hard worker who studied a lot, and busted his butt, to make it onto the department. And he was explicitly denied his opportunity because of the color of his skin. This, as you know, is the moral issue in the Ricci case, which we'll be hearing more about. Some "white male privilege" this working-class white man benefited from.
In the Diane Rehm Show discussion that followed, Sullivan agreed that the caller made an important point, but said, as I've done, that Sotomayor's point in larger context deserved greater consideration. That is, all judges, being human beings, make their decisions based not only on the law, but on many factors -- including their own personal backgrounds. Dispassion is quite rightly the ideal in a jurist, but we can't ignore that we are not machines -- objects -- but subjects who have been shaped by our contexts. That's just a fact of human nature. Sullivan went on to say that consciousness of how our own experiences shape our worldviews may in fact be a prerequisite for achieving dispassion, that if we aren't fully aware of how our views were formed, and our potential biases, we are in a poor position to overcome them.

max
['Oh, the fun you'll have.']


Posted by: max | Link to this comment | 05-29-09 11:20 AM
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Empathize right on your behind, max.


Posted by: Cryptic ned | Link to this comment | 05-29-09 11:23 AM
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559: It seems like that just boils down to a plain old fashioned misunderstanding of a term of art. "Privilege" as we use it in these, well, privileged discourses, does not mean what it means to that white male truck driver making $14/hour.


Posted by: Di Kotimy | Link to this comment | 05-29-09 11:36 AM
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Shockingly, this ancient comment isn't completely irrelevant 100 comments later:

And are you all claiming all universities award academic honors in a completely color blind way?

At my school, honors were a simple function of GPA - pretty fucking color blind.

Now, the fact that I happened to be in the room when the cutoff for my department was being discussed, and suggested a level that I was pretty sure I'd make, may indicate that the system was not entirely JRoth-blind....


Posted by: JRoth | Link to this comment | 05-29-09 11:42 AM
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I won a Most Improved Athlete trophy at a sports camp. Now I'm starting to worry that I didn't really earn it -- that it was just a token award for the Jewish kid.


Posted by: peep | Link to this comment | 05-29-09 11:48 AM
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542, 545: It's a little implausible that Shearer is so ignorant of how elite universities operate, given that he has a PhD from an elite university.


Posted by: essear | Link to this comment | 05-29-09 11:51 AM
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There are schools where honors are determined by something other than simply grades?

564: He's a black lesbian, he knows he didn't deserve it.


Posted by: Cryptic ned | Link to this comment | 05-29-09 12:08 PM
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564: really? Didn't know that.


Posted by: PGD | Link to this comment | 05-29-09 12:29 PM
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560: Empathize right on your behind, max.

?

561: 559: It seems like that just boils down to a plain old fashioned misunderstanding of a term of art. "Privilege" as we use it in these, well, privileged discourses, does not mean what it means to that white male truck driver making $14/hour.

True enough. But I believe the point of most conservative discourse over the last decades is that economic issues are caused by black people and government. Which would be why the truck driver is understanding it that way.

And as well, as previously in this thread, the fireman may have been rejected for reasons other than quotas, and the chief may have been delivering an excuse. But it sure is a good excuse, isn't it?

max
['The niggers government did it!']


Posted by: max | Link to this comment | 05-29-09 12:30 PM
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556

One more time, James: Besides her race and gender, what causes you to think Sotomayor is an affirmative action choice? Is any instance of hiring a nonwhite, nonmale necessarily a case of affirmative action?

I am attempting to apply the definition gven by LB with respect to Thomas in 105:

Something that's worth pointing out about Thomas, though, is that while it's racist and untrue to say that he's stupid or unskilled, it is not racist and it is true to say that he was an affirmative action hire -- it's pretty unambiguously clear that he was groomed for an SC appointment and then appointed as a black conservative, not for race-blind reasons. ...

Thomas was picked in large part because he was black, Sotomayor in large part because she was a Hispanic women. Similarly O'Connor was picked because she was a women. So all of these were affirmative action choices by LB's definition. A women or minority picked in a race (or sex) blind way would not be.

What is your objection, that Sotomayor was picked in a race (and sex) blind way?


Posted by: James B. Shearer | Link to this comment | 05-29-09 12:31 PM
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the unspoken Ivy affirmative action bargain is: we'll lower admissions standards somewhat (but only somewhat), but once you're in we won't give you the true high achiever imprimatur (high honors, class rank, glowing recommendations) unless you earn it. That was even more true in the 70s, pre grade inflation, than it is today. But it's still more or less true today.

In Ivy league law schools, affirmative action for membership on the law review is not uncommon. Not for leadership positions on the review, as far as I know, though. Honors cutoffs can also be fairly generous. At my (non-Ivy) college, departmental honors were discretionary, and based in part on how willing your thesis adviser was to go to bat for you. Not that any of this indicates that Sotomayor is not eminently qualified.


Posted by: Amber | Link to this comment | 05-29-09 12:31 PM
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560: Empathize right on your behind, max.

?

Link


Posted by: Criminally Bulgur | Link to this comment | 05-29-09 12:34 PM
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567: Oh, definitely, we're not disagreeing. But the concept of "privilege" as we all mostly understand it here is one that's really only begun to crystalize for me in the past few years and really getting that is huge. Privilege isn't just the over old-boys-club stuff of white men deciding to hire white boys. It's also the subtle stuff where a white male judge can sit silently through oral argument and be interpreted as thoughtful and contemplative while Clarence Thomas is read as lazy and dull. Where a white male colleague can voice strong opinions and be read as an assertive leader while when I do it I'm 'volatile' and 'take things too personally'*. Even when everyone has wonderful progressive intentions to treat everyone equally, privilege is about how certain paths are closed off to women and minorities because the ways we expect leaders to behave are, at the same time, behaviors we find inappropriate in women and minorities.

It's been seriously hardcore disconcerting for me to realize that getting good grades and then working hard were not going to magically put me on the same playing field as the boys. And then it was hard for me to reconcile that with thinking, but X and Y and Z don't seem to be misogynists. Getting that X and Y and Z aren't, in fact, consciously hateful toward women but are simply trapped in their own, privileged worldview really has helped me to overcome the perplexed distress at why I can't seem to find a niche in my firm. Mind you, it's been replaced with informed resignation to the ultimate hopelessness of it all. But informed!

* See what I did there? I was talking about taking things personally, and the I used an "I" statement which would seem to suggest I really do!


Posted by: Di Kotimy | Link to this comment | 05-29-09 12:44 PM
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+t


Posted by: Di Kotimy | Link to this comment | 05-29-09 12:45 PM
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See what I did there?

I miss King Kaufmann.


Posted by: JRoth | Link to this comment | 05-29-09 12:53 PM
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564

It's a little implausible that Shearer is so ignorant of how elite universities operate, given that he has a PhD from an elite university.

I also went to an elite undergraduate university. However I skipped my high school, undergraduate and graduate school graduation ceremonies indicating a certain alienation from academics. And I have no memory of how my undergraduate college awarded honors or if I received any.

It was quite a while ago but my memory is that elite schools didn't like to disclose much of anything about admissions in general or affirmative action in particular and what they did say was likely to be misleading or worse. So I don't trust anything they say in this area.


Posted by: James B. Shearer | Link to this comment | 05-29-09 12:53 PM
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564: And yet I saw on your blog that you attended the Yale commencement ceremony this year. What happened?


Posted by: peep | Link to this comment | 05-29-09 12:55 PM
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554

I have never seen nor heard of such an award in an academic setting. A "most improved" award sounds like something that RE/MAX hands out to one of its rookie real estate agents at its annual banquet or something.

I just sat through a graduation ceremony at which such a thing was handed out (I don't remember the exact wording but most improved was the gist). There was also an award for contributing to community relations.


Posted by: James B. Shearer | Link to this comment | 05-29-09 12:57 PM
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577

575

And yet I saw on your blog that you attended the Yale commencement ceremony this year. What happened?

Apparently I have mellowed a bit. Or maybe the ceremonies are primarily for the family and friends.


Posted by: James B. Shearer | Link to this comment | 05-29-09 12:59 PM
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I've barely skimmed the last few comments, but for what it's worth, yet another Yglesias post about this controversy relates to a question upthread.

It's hard to look at the composition of the United States Senate, or the Washington Post and New York Times op-ed pages, or the roster of Fortune 500 CEOs and reach the conclusion that the system has been working overtime to promote underqualified Latinos into positions of prominence. Unless, that is, you want to argue that we're so intrinsically deficient in our ability that we're structurally underrepresented despite the massive advantages we receive in life.

424
Does Yglesias self-identify as Hispanic (which would surprise me)?

Matt said "we" and "our" about Hispanics, so apparently he does self-identify as Hispanic at least partly.


Posted by: Cyrus | Link to this comment | 05-29-09 1:00 PM
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577: That's nice.

576: Was it Yale that had a "most improved" award? I'm not sure how that would look on a resume.


Posted by: peep | Link to this comment | 05-29-09 1:02 PM
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What is your objection, that Sotomayor was picked in a race (and sex) blind way?

That the selection of someone with Sotomayor's resume would be unremarkable on preferential treatment grounds had that person been a white male - as, indeed the selections of white males with similar or lesser resumes have been through the entire history of the court.

You are defining "affirmative action" in such a way as to say affirmative action hires are people who are hired because of their race or sex, but only if their race or sex isn't white or male.

The traditional objection to affirmative action - which today for some unclear reason you refuse to address - is that it supposedly mandates less qualified people be selected over those more qualified. As you note in 212, this was one gripe against Thomas. (There were many others.) Yet you argue elsewhere that Sotomayor is functionally identical to Thomas in a discussion of affirmative action, insisting on a definition that has nothing to do with qualifications. (The fact that you attribute this definition to LB isn't particularly interesting to me.)

So the question is, given that Sotomayor seems situated identically to a lot of folks whose hires you aren't calling affirmative action, what's different about her? The only thing you've identified is her race and gender.


Posted by: politicalfootball | Link to this comment | 05-29-09 1:09 PM
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581

YALE GAVE OUT 23 PRIZES, SOME ACADEMIC, SOME SERVICE-ORIENTED.


Posted by: OPINIONATED YALE GRAD | Link to this comment | 05-29-09 1:11 PM
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580

That the selection of someone with Sotomayor's resume would be unremarkable on preferential treatment grounds had that person been a white male - as, indeed the selections of white males with similar or lesser resumes have been through the entire history of the court.

This is irrelevant. Legacy admits (as far as I know) include students who would have gotten in anyway.


Posted by: James B. Shearer | Link to this comment | 05-29-09 1:29 PM
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579

Was it Yale that had a "most improved" award? I'm not sure how that would look on a resume.

I not sure if it was Yale or a Yale department or an individual college. It was awarded at the ceremony for an individual college. The wording was something like the McKim prize:

WILLIAM H. McKIM (1955). Friends and classmates in memory of William H. McKim, Class of 1954. For a senior majoring in political science, economics, history, or a related field (e.g., Russian Studies), who has shown improvement in his or her academic standing in upper-class years and who has made a significant contribution in one or more activities outside the classroom. To be awarded by the Council of Masters.

but I don't remember any criteria besides academic improvement.

You could just put McKim prize on a resume. And a lot of the prizes had checks included.


Posted by: James B. Shearer | Link to this comment | 05-29-09 1:40 PM
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ALPHEUS HENRY SNOW (1922). Mrs. Snow in memory of her husband, Alpheus H. Snow, B.A. 1879. For the senior who, through the combination of intellectual achievement, character, and personality, shall be adjudged by the faculty to have done most for Yale by inspiring classmates with an admiration for scholarship.

The Snow Prize! For the student who does the best snow job!

I guess you win, James. Academic prizes are meaningless.


Posted by: peep | Link to this comment | 05-29-09 1:47 PM
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You could just put McKim prize on a resume.

I got one of the two prizes that my department (government) awarded to seniors. I honestly have no idea what the criteria are or how I was judged to have fulfilled them. I just put it on my resumé and figured "prize" might make an impression.


Posted by: Sir Kraab | Link to this comment | 05-29-09 1:51 PM
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Legacy admits (as far as I know) include students who would have gotten in anyway.

That ain't how it works, no.


Posted by: Sifu Tweety | Link to this comment | 05-29-09 1:58 PM
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This is irrelevant. Legacy admits (as far as I know) include students who would have gotten in anyway.

One supposes Sifu T is right, but even if you are correct on this, have you ever heard legacy admissions discussed, as a policy matter, except in the context of merit? Why would such a conversation take place? In any sensible discussion of the matter, a person who gains admission through normal channels wouldn't be thought of as a legacy admit even if a parent went to the school.

You can define your terms as you please, but if you want to define affirmative action as "any time a woman or minority is hired," you're going to give the appearance of using an idiosyncratic definition to hide hostility toward the aspirations of women and minorities.


Posted by: politicalfootball | Link to this comment | 05-29-09 2:16 PM
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Academic prizes are meaningless.

Money is never meaningless.


Posted by: essear | Link to this comment | 05-29-09 2:23 PM
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Money is never meaningless.

SEZ YOU.


Posted by: OPINIONATED ZIMBABWEAN | Link to this comment | 05-29-09 2:26 PM
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586

That ain't how it works, no.

So "legacy admit" commonly means something other than a student with alumni parents?


Posted by: James B. Shearer | Link to this comment | 05-29-09 2:53 PM
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I'm actually not sure how it's used -- thinking over what sounds natural, I'd use 'legacy' by itself for anyone who had an alumni connection (Wolfson at U of C is a legacy), but 'legacy admit' for the class of people admitted due to their legacy status.


Posted by: LizardBreath | Link to this comment | 05-29-09 2:55 PM
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587

One supposes Sifu T is right, but even if you are correct on this, have you ever heard legacy admissions discussed, as a policy matter, except in the context of merit? Why would such a conversation take place? In any sensible discussion of the matter, a person who gains admission through normal channels wouldn't be thought of as a legacy admit even if a parent went to the school.

If you list alumni parents on your application you are a legacy admit, if you claim minority status you are an affirmative action admit.


Posted by: James B. Shearer | Link to this comment | 05-29-09 2:56 PM
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590: in terms of the Ivies, "legacy admits" is commonly used to refer to students with alumni parents, yes. If the parents are rich (and actually, they don't have to be alumni if they're rich enough) the students are given extra consideration, and are more likely to be admitted than they would be if their parents did not seem like good donation prospects.

This is the system I was speaking of. I'm not really sure what else to do with "legacy" status would be relevant.


Posted by: Sifu Tweety | Link to this comment | 05-29-09 2:57 PM
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If you are a white normal guy you're a normal admit.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 3:04 PM
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593

And some subset of these students would not be out of place among students admitted through the normal process but are nonetheless legacy admits. Which is what I was trying to say in 582.


Posted by: James B. Shearer | Link to this comment | 05-29-09 3:04 PM
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593: Unlike affirmative action admits.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 3:06 PM
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oops 593 s/b 595: And some subset of these students would not be out of place among students admitted through the normal process


Posted by: JP Stormcrow | Link to this comment | 05-29-09 3:07 PM
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571: 567: Oh, definitely, we're not disagreeing. But the concept of "privilege" as we all mostly understand it here is one that's really only begun to crystalize for me in the past few years and really getting that is huge. Privilege isn't just the over old-boys-club stuff of white men deciding to hire white boys.

However, there is THAT, too. (I'm from Dallas, where that sort of stuff is a big deal.)

It's also the subtle stuff where a white male judge can sit silently through oral argument and be interpreted as thoughtful and contemplative while Clarence Thomas is read as lazy and dull.

Yes. I could see why people would think he was weird.

Where a white male colleague can voice strong opinions and be read as an assertive leader while when I do it I'm 'volatile' and 'take things too personally'*.

'Volatile? Huh. Well, yeah, I am actually. You gotta fuckin' problem with that, asswipe?'

Even when everyone has wonderful progressive intentions to treat everyone equally, privilege is about how certain paths are closed off to women and minorities because the ways we expect leaders to behave are, at the same time, behaviors we find inappropriate in women and minorities.

Sure.

It's been seriously hardcore disconcerting for me to realize that getting good grades and then working hard were not going to magically put me on the same playing field as the boys.

Good grades and working hard will not put on the same playing field with the big boys even if you ARE a boy. It ain't what you know, it's who you know. And if you happen to know Barack Obama, you just might get on the SC.

And then it was hard for me to reconcile that with thinking, but X and Y and Z don't seem to be misogynists.

I have thought for some time that 'misogynist' as a term tends to overuse. Gotta save that for the actual misogyny (of which there is plenty - see various exciting rap records for a random example)(or old white senators from the South). Bush the II didn't do all that much racist bullshit, but he did lots of crooked, evil stuff. On the other hand, Limbaugh is just out and out racist.

If a term gets overused, not only does one wind up in the position of 'crying wolf' too much, but you wind up overthinking the issue, which makes it harder to fix.

Getting that X and Y and Z aren't, in fact, consciously hateful toward women but are simply trapped in their own, privileged worldview really has helped me to overcome the perplexed distress at why I can't seem to find a niche in my firm. Mind you, it's been replaced with informed resignation to the ultimate hopelessness of it all. But informed!

Understanding the actual problem is half the battle!

* See what I did there? I was talking about taking things personally, and the I used an "I" statement which would seem to suggest I really do!

Bah. Punch 'em inna face.

max
['I thought I had something intelligent to add, but apparently not. Fuck it, it's Friday.']


Posted by: max | Link to this comment | 05-29-09 3:44 PM
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574: It was quite a while ago but my memory is that elite schools didn't like to disclose much of anything about admissions in general or affirmative action in particular and what they did say was likely to be misleading or worse. So I don't trust anything they say in this area.

James! Bill Bennett & Fred Barnes agree with you!:

BARNES: I think you can make the case that she's one of those who has benefited from affirmative action over the years tremendously.
BENNETT: Yeah, well, maybe so. Did she get into Princeton on affirmative action, one wonders.
BARNES: One wonders.
BENNETT: Summa Cum Laude, I don't think you get on affirmative action. I don't know what her major was, but Summa Cum Laude's a pretty big deal.
BARNES: I guess it is, but you know, there's some schools and maybe Princeton's not one of them, where if you don't get Summa Cum Laude then or some kind of Cum Laude, you then, you're a D+ student.

max
['Them hippie commie-pinkos, you know them.']


Posted by: max | Link to this comment | 05-29-09 3:50 PM
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Sumkinda Cum Laude is the step below Summa Cum Laude, right?


Posted by: essear | Link to this comment | 05-29-09 3:57 PM
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600: It's the Most Improved Laude.


Posted by: apostropher | Link to this comment | 05-29-09 3:59 PM
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I continue to be pleased at the lack of awards or rankings at the institutions I've attended.


Posted by: Nathan Williams | Link to this comment | 05-29-09 4:10 PM
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White House says: We suck! Sotomayor's Latina Comment Was Poor Choice of Words.

You were winning, you dumb fuckholes.


Posted by: JP Stormcrow | Link to this comment | 05-29-09 7:19 PM
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nytimes.com top headline at the moment: "Sotomayor's Focus on Race Issues May Be Hurdle". Have I mentioned how much I hate the media?


Posted by: essear | Link to this comment | 05-29-09 11:38 PM
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Only with the outside help of a professor who served as her mentor did she catch up academically, ultimately graduating at the top of her class.

Gasp!


Posted by: JP Stormcrow | Link to this comment | 05-29-09 11:43 PM
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604: For instance, as a bare minimum is it too freaking hard for them to mention that she was part of a panel for the Ricci case?


Posted by: JP Stormcrow | Link to this comment | 05-29-09 11:51 PM
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You were winning, you dumb fuckholes.

Obama was a Democratic senator. Old habits die hard.


Posted by: apostropher | Link to this comment | 05-30-09 3:17 AM
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Of course I'm an Obama dead-ender, but I'm almost willing to blame that on Gibbs ad-libbing.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 3:19 AM
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I actually take it back. It's totally John Cornyn's fault; Obama saw the opportunity to lock in consensus with the vaguely-non-crazy actually-elected actually-have-a-vote members of the GOP caucus, and took the opportunity to plausibly meet them in the middle. Will it work? Eh, she was probably confirmed anyhow. But it fits his MO. Sotomayor gets confirmed 87-9-ish, is my prediction.


Posted by: Sifu Tweety | Link to this comment | 05-30-09 4:12 AM
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I'll walkback my criticism somewhat after this strong defense during Obama's weekly radio address.


Posted by: JP Stormcrow | Link to this comment | 05-30-09 3:20 PM
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