If You're All White in America

by Eric Martin

Many prominent conservatives are making the argument that Judge Walker is gay and, therefore, his decision regarding Prop 8 might have been unduly influenced by his sexual orientation.

It's not that I would suggest that his sexual orientation (if he is gay) has no influence on his jurisprudence, but here's the thing, if homosexuality influences analysis of legal issues involving civil rights for homosexuals, doesn't heterosexuality also influence decisions regarding these same matters?  After all, heterosexuality is no guarantor of objectivity, it just provides a different set of subjectivities, which are not per se superior to other vantage points.

This reminds me of conservative complaints aired during Sonya Sotomayor's confirmation hearings: that her Puerto Rican roots would unduly influence her decision making process regarding civil rights cases.  Again, though, the assumption is that being a Caucasian means being free from any and all biases.  Which is on its face preposterous as all people are influenced by their past experiences and particular perspective. 

Stephen Colbert captured this phenomenon nicely:

For instance, take the Dred Scott case. Those justice's life experience, being white men in pre-civil war America some of whom owned slaves, in no way influenced their decision that black people were property. And, their personal backgrounds had nothing to do with the all-neutral court decision that it was legal to send Japanese Americans to internment camps in 1942. Imagine how the life experience of an Asian judge would have sullied that neutrality.

Indeed, just imagine.  This is what I wrote at the time, in the context of Sotomayor's "troubling" Puerto Rican ancestry and the "wise Latina" controversy:

Judges whose life experiences differ from the white male norm that has dominated the Supreme Court since its inception, would, I "hope," be able to make better informed decisions on cases for which being white and male may increase the likelihood of certain blindspots, and being a member of a minority group might provide certain insights. 

Further, while a minority will likely be well-versed in the dominant culture of a given society (by virtue of it being dominant and all), a member of the majority group is less likely to be familiar with the culture of that minority group.  Due to this myopia, sometimes the dominant group just doesn't get it - or at least, has a harder time of it. 

Ensuring a robust and comprehensive input of opinions is why diversity makes our society stronger, more welcoming and, yes, wiser.  That is a feature, not a bug.

Comments

[Snarki, child of Loki]

Next up, recuse any judge that is ruling on a suit brought under the Clean Air act, because they're open and notorious "breathers".

Can we get judges that okay restrictions on abortion recused because they obviously have "been born"?

[dr ngo]

I don't get it. I'm white. I'm objective. QED.

[Hogan]

"So what of this horse, then, that actually held opinions, and was sceptical about things? Unusual behaviour for a horse, wasn't it? An unusual horse perhaps?

"No. Although it was certainly a handsome and well-built example of its species, it was none the less a perfectly ordinary horse, such as convergent evolution has produced in many of the places that life is to be found. They have always understood a great deal more than they let on. It is difficult to be sat on all day, every day, by some other creature, without forming an opinion on them.

"On the other hand, it is perfectly possible to sit all day, every day, on top of another creature and not have the slightest thought about them whatsoever."

--Douglas Adams

[Modulo Myself]

By the claims of the anti-SSM side, wouldn't straight people have a vested interest against SSM?

Or wait--maybe, just maybe, all of the pro-family stuff is just cover for bigotry and prejudice and 'ick'. Maybe, just maybe, no one believes that gay marriage does anything to anybody.

[Eric Martin]

Nicely done Hogan.

[Catsy]

I think the point is that when people complain that someone who is Latina, or gay, or female would be unduly biased by that when dealing with cases that are relevant to those categories, they are--whether it's conscious or not--engaging in a subtle form of bigotry that reflects the privileged status of straight white males in this country.

The implication is that this bias arises from the mere fact of their race, gender, or sexual orientation--and that the only way someone could be objective is by being white, male, and straight. It is an assertion that being a straight white male is the default, the norm from which deviations are measured. You will never hear these same people suggest that a white person should recuse themself from cases involving racial discrimination, that a man's gender might improperly influence their decisions in a sexual harassment case, or that a straight judge might not be capable of being fair in a case about gay rights.

[Slartibartfast]

Everyone's biased. If judges had to recuse themselves if any conceivable bias existed, no case would ever get tried.

[wj]

The grounds for recusing any straight, married judge due to his having a vested interest in the outcome of the case follows immediately from the Prop 8 proponent's stand that gay marriage harms heterosexual marriages. They are not just arguing that a straight judge might have a vested interest in the outcome, they are arguing in the case that he must have a vested interest.

And so, as Slarti points out, nobody could possibly hear the case. although, come to think about it, that might have suited the proponents very well indeed, since it would leave Prop 8 in place. Hmmm....

[Hogan]

This just highlights the urgent need to appoint more genderless elementals to the federal bench.

[Nate]

You can't appoint elementals, who would trust a fire elemental to rule on anything related to combustion? Or a water elemental for the Clean Water Act, or the BP spill? And not to mention air elementals' own bias in favor of global warming, and the earth elementals discrimination against miners!

(Sorry, my nerd just slipped out there)

[hairshirthedonist]

What we need is a good algorithm.

[cleek]

what about Q ?

he'd be free from all bias not related to our dealings with the Q Continuum.

Vote Q For TX Supreme Court!

[Catsy]

what about Q?

His jurisprudence in Encounter at Farpoint calls into question his ability to rule without bias in any case involving humans.

[Ugh]

After reading this post, somehow I knew we'd end up talking about specific episodes of Star Trek TNG.

[hairshirthedonist]

What we need are judges who don't care one way or the other about humans. Oh, wait. That would make Scalia perfect.

[bobbyp]

Many prominent conservatives are making this argument? This is just further demonstration that they argue in bad faith....just about always.

[scyllacat]

I'm going to try not to have sarcasm leak all over my post, which obscures my meaning.

It's apparent to me (looking at the Presidential election onward) that the conservative argument style has been officially changed to "Argue as if you believed in what you think liberals believe in." Liberals believe in being fair, so if you can tell them that being a gay judge makes you unfair, that will make the liberals at least have to stop and figure out what's wrong with your argument.

Currently, Mad Science is working on a Bullshit Detector to fix this problem. We just can't figure out how to get them to stand still long enough for the anvil to reach them.

[vanmojo]

This is all just conservative speech-meat flapping; nothing they can't put on a bumper sticker.

The fact is that this is just further reaction from those who want to destroy a pluralistic America.

Conservatives: they love America, but hate Americans...

mojo sends

[Marty]

I am thinking the ultimate solution is Daneel.

[Mike Schilling]

Ever read the Second Foundation Trilogy (by Benford, Brin, and Bear), Marty? Daneel definitely had an agenda.

[Mike Schilling]

The solution is for all judges to be straight white male Christian conservatives. You know, real Americans.

(Also old enough not to have any radical ideas, but young enough to serve fifty or sixty years.)

[Nate]

Friend Computer will judge us all!

[Eric Martin]

The solution is for all judges to be straight white male Christian conservatives. You know, real Americans.

AKA, the Jews of liberal fascism.

[Hogan]

Friend Computer will judge us all!

I'm sorry, Dave. I'm afraid I can't do that.

[Marty]

"Ever read the Second Foundation Trilogy (by Benford, Brin, and Bear), Marty? Daneel definitely had an agenda."

I haven't but will now.

"I'm sorry, Dave. I'm afraid I can't do that."

Dave, what are you doing Dave?

[wj]

"Dave's not here...."

[Eric Martin]

Hogan, that's twice you've won the thread. Kind of showing off at this point.

[Hogan]

. . . I'll be good.

[Allienne Goddard]

No, I'm Dave, man.

[Roger Moore]

Friend Computer will judge us all!

Only a commie mutant traitor scum could possibly object.

[ajay]

The grounds for recusing any straight, married judge due to his having a vested interest in the outcome of the case follows immediately from the Prop 8 proponent's stand that gay marriage harms heterosexual marriages.

Not just married judges, but any judges with relations who are married. If the case was about something that, it was argued, would weaken IBM, would you be confident in the impartiality of a judge whose three sisters all worked at IBM?

[Mike Schilling]

Not just married judges, but any judges with relations who are married.

Or whose parents were married.

[Hogan]

But if you just went duck hunting with people who are married, that's OK.

[Marty]

"But if you just went duck hunting with people who are married, that's OK."

Unless you shot one of the married duck hunters by "accident".

[Hogan]

Yes, in that case the guy you shot owes you an apology.

[Eric Martin]

Oh jeez Jay, you're just as reactionary and non-sensical in Spanish.

White judges have a vested, self-interest in cases involving black slaves. If they didn't recuse themselves then, there is no precedent for Walker doing so now.

A California resident, if his ruling is left to stand, and he marries another homosexual man, he will have personally profited from whatever benefits accrue to married people, previously unavailable to him.

Which kind of proves the equal protection claim in the first place. Roundabout.

[JanieM]

Is JJ back? It's about that level of obliviousness.

[JanieM]

Sorry, cross-posted with Eric.

If a ban is a ban, why is the comment still there?

[Hogan]

Why, it's almost like you didn't read the rest of the comments in this thread before posting your silliness. You might want to give that a try--actually listening to the conversation before joining in.

[Catsy]

DNFTT.

[Eric Martin]

Alright, I'm deleting.

[McKinneyTexas]

Anybody wondering about the end game? If the High Nine reverse the trial court, doesn't that put a knife in the equal protection arguments, for once and for all?

[Hogan]

McKinney: That discussion is over in the "America Getting Back to Being America" thread.

[McKinneyTexas]

Hogan: thanks. Just commented.

[Marnie]

Your point that the majority may know less about a minority than the other way around - I agree 100%. And yes it will continue to confound the majoirty as minorities become more visible and more vocal.

[Katara]

Interesting stuff, thank you Eric.