By N.S. Palmer
President Barack Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court was predictable, as was the fuss that her nomination engendered.
Her critics’ main complaint against Judge Sotomayor is the claim that she’s biased in favor of her race, which is Hispanic. In her early career, she was on the National Council of La Raza, a Hispanic lobbying group whose name means “the race.” One can imagine the denunciations that would ensue if a white Supreme Court nominee had been on the board of an organization promoting the interests of the Caucasian race — as, in fact, one was.*
On the other hand, such denunciations are misguided, whether applied to Hispanics, Caucasians, or to members of the local Rotary Club. There’s nothing wrong with having warm feelings toward one’s own people and seeking to advance their interests, as long as our actions are legal and consistent with our moral and professional obligations. Quite the opposite: such feelings are perfectly natural and normal.
Judge Sotomayor’s court rulings are a different matter. In her work as a judge, she is obliged to treat all people impartially regardless of their race. If her work as a judge showed a bias in favor of Hispanics, that would be unacceptable. However, no one accuses her of such bias.
The Troubling Case of Ricci v. DeStefano
Judge Sotomayor has also been criticized for her ruling in the 2008 case of Ricci v. DeStefano. Eighteen firefighters (17 white, one Hispanic) in New Haven, Connecticut had passed a promotion exam that no black candidates passed. The city government threw out the test results, and the 17 white firefighters who passed the test sued the city for racial discrimination under Title VII of the Civil Rights Act of 1964. Judge Sotomayor was part of a three-judge panel that ruled against the firefighters.
I hope that in her confirmation hearings, Judge Sotomayor explains more completely why she ruled as she did in that case. In a survey of her major cases, The New York Times noted that Sotomayor normally explains her legal reasoning in detail, but the three-judge panel provided only an uninformative one-paragraph explanation of the decision. Certainly, it’s peculiar to have a panel of judges rule that a law against racial discrimination does in fact permit racial discrimination as long as it’s against whites. However, the problem might not be with Judge Sotomayor or the three-judge panel, but with previous court rulings about Title VII of the U.S. Civil Rights Act.
In particular, the panel relied, as it had to, on the “Bona Fide Occupational Qualifications” doctrine. That doctrine outlaws job requirements that have a “disparate negative impact” on some protected group (principally women and African-Americans) unless an employer can prove that the requirements are necessary and that no alternative would have less disparate impact.
In Ricci v. DeStefano, the disparate impact was clear: None of the African-American candidates passed the promotion test, while 17 whites and one Hispanic did pass the test. The New Haven city government most likely wanted to avoid being sued by the African-American test-takers for racial bias, so it ended up being sued by the white test-takers for racial bias. Sometimes, you just can’t win. Judge Sotomayor seems to have ruled accordingly, and the case doesn’t make a whole lot of sense. It might be a mistake to blame the mess on her, but she needs to explain it. (She also needs to explain her reasoning in the unrelated case of Didden v. Village of Port Chester, which dealt with property rights and eminent domain).
Applying the Law vs. Reading the Law
President Obama’s critics have also blasted him for nominating an ethnic woman to the court: a so-called “twofer,” because she fills two affirmative action quotas (non-white, non-male) at once. Instead, his critics argue, he should have sought “the best-qualified person,” presumably meaning a person with the most experience on the bench, who has made the largest number of important rulings, and who also would be approved by Republican radio talk-show host Rush Limbaugh.
They don’t consider the notion that, to paraphrase the Bible (Mark 2:27), “the law was made for people, not the other way around.” Applying the law requires more than just being able to read the law. Judges who know first-hand about the lives and problems of litigants can apply the law more intelligently and compassionately.
Supreme Court Justices Roberts, Scalia, and Alito are well-qualified by their life experience to understand the problems of bankers, oil company executives, and the idle rich. They are totally unqualified to understand the problems of minimum-wage workers at Wal-Mart or the victims of racial discrimination. To them, such people are a blank. To Judge Sotomayor, who has had different life experience, they are real people whose lives matter. Regardless of what the law says, a judge’s background makes a difference in how he or she interprets it. That’s why balancing the court with judges of various backgrounds is a good idea.
Fair enough on both sides. President Obama is a liberal. He wants a Supreme Court judge who agrees with him on most issues. Rush Limbaugh is what currently passes for a conservative. He wants a Supreme Court judge who agrees with him. As it happens (thank goodness), only one of them is president.
Historical Perspective: The Case of Trucksylvania
But let’s step back for a moment to view the situation more objectively. Arguments about current issues are often clouded by passions on both sides. We need to bypass those clouds.
It’s said that people who are ignorant of history are doomed to repeat it. Many of the problems raised by Judge Sotomayor’s nomination were confronted and solved — well or poorly — long ago by Trucksylvania, a tiny but independent Central European duchy established in the year 996 by the Holy Roman Empire under Emperor Otto III.
Trucksylvania was founded as a homeland for truck drivers, which seems remarkably prescient when one considers that trucks wouldn’t be invented until 900 years later.
Though they had nothing to drive, no truck stops at which to eat, and no CB radios on which to say things like “breaker one-nine good buddy,” or “I’ve got a bear in the air,” truck drivers immigrated into Trucksylvania from all over Europe. Meanwhile, the previous inhabitants of Trucksylvania found themselves outnumbered and unwelcome, so many of them emigrated to other countries.
Over the centuries, the culture and institutions of Trucksylvania evolved more and more to reflect the abilities, aspirations, and ideals of truck drivers. People who easily adapted to the requirements of a truck-driving culture were successful and had lots of children for whom they provided the best nutrition and education. People who couldn’t adapt had trouble finding steady jobs. If they had any children at all, they had only a few badly-nourished, ill-educated offspring. If they could move elsewhere, they did.
Culture and heredity mutually reinforced each other, so that the physical and intellectual qualities of Trucksylvanians became ever more closely aligned with the requirements of their truck-driving culture. The children of truck drivers, just like the generations of peas in Gregor Mendel‘s laboratory, tended to inherit the traits of their parents. A social and economic hierarchy emerged, all based on truck-driving ability.
The most reliable though controversial measure of truck-driving aptitude was each person’s Peristaltic Quotient (PQ), which essentially measured the length of time that the person could drive without stopping to go to the loo.
A person’s PQ was defined as average food consumption in grams per day divided by average number of bowel movements per week. Thus, a person who consumed 700 grams of food per day and had seven bowel movements per week had a PQ of 100, which was about average for a Trucksylvanian. A person with an average PQ could drive a truck for a day without stopping; someone with a PQ over 140 could drive as long as two days without stopping.
Apart from the lack of any real trucks to drive, all was well as long as Trucksylvania remained a country “of, by, and for truck drivers.” But that was fated to change.
War with France
In the year 1250, Trucksylvania made a costly mistake when it went to war with France. Though the hardy truck drivers easily won the conflict, the French slaves they brought back to Trucksylvania were more of a burden than an asset. The average French PQ was shockingly low by Trucksylvanian standards — a mere 85, compared with the Trucksylvanian average of 100.
A few of the French had enough truck-driving aptitude to function well in society, and a very small number of them even had PQs far above the Trucksylvanian average. Most of them, however, found it hard to adapt to a society and economic system based on truck driving. They knew how to bake soufflés; they excelled in creating perfumes and writing love poetry; they were good at mathematics; they even played a fair game of football. But their low average PQ meant that as a population, the French would never be able to compete on equal terms in a truck-driving society. They simply had to go to the bathroom too often.
In their own kind of society, the French would have done fine and it would have been the Trucksylvanians who had problems. But they weren’t in their own kind of society. They were in Trucksylvania. Soufflés were nothing. Truck driving was everything.
The Problem Becomes Acute
When Trucksylvania abolished slavery in 1275 and freed all of its French slaves, the problem became acute. The French population had grown too large to be sent back to its country of origin, so Trucksylvania could not use the approach that U.S. President Abraham Lincoln would support almost 600 years later of deporting former slaves. Somehow, Trucksylvania’s French residents had to be integrated into truck-driving society in spite of their low average PQ and their preoccupation with cooking.
Trucksylvanians of good conscience sympathized with the French but disagreed about what to do. Some pointed out that PQ, though important for truck driving, was only one of many important human qualities. They argued that all people, even the French, had the same human rights regardless of PQ. A few well-meaning people went so far as to argue that the whole idea of PQ was a myth because people’s PQ scores could often be raised somewhat by training and proper diet.
On the other side, some conservatives objected to the notion of trying to integrate the French into Trucksylvanian society. They pointed to the advice of English writer Walter Bagehot (1826-1877), a copy of whose book Physics and Politics had fallen through a temporal rift and landed in 13th-century Trucksylvania:
“A nation means a like body of men, because of that likeness capable of acting together, and because of that likeness inclined to obey similar rules.”
The idea of giving the French equal status in Trucksylvanian society was even worse, they said, quoting Bagehot once again:
“The mixture of persons of different race in the same commonwealth, unless one race had a complete ascendancy, tended to confuse all the relations of life, and all men’s notions of right and wrong; or by compelling men to tolerate in so near a relation as that of fellow-citizens differences upon the main points of human life, led to a general carelessness and scepticism, and encouraged the notion that right and wrong had no real existence, but are mere creatures of human opinion.”
A Compassionate Solution
Conservative objections notwithstanding, Trucksylvania had to give its French residents “a place at the table.” Their lack of truck-driving aptitude meant that their dinner would have to be subsidized by Trucksylvanians. But how to do it? Simply giving money as charity to the French would deprive them of self-respect and make them resent their Trucksylvanian benefactors. Oddly enough, the rulers of Trucksylvania were familiar with the Babylonian Talmud, which advised:
“Whoever shames his neighbor in public, it is as if he shed his blood.”
To help its French residents without shaming them, the Trucksylvanian government decided to give them extra points — the equivalent of a golf handicap — to compensate for their lack of truck-driving ability. The extra points would help them to get good jobs and enjoy social status even if in the aggregate, they never learned to drive as well as Trucksylvanians. In addition to the extra points, Trucksylvania would pour resources into better nutrition and education for the French, enabling them to make the most of whatever truck-driving potential they had.
Of course, to discriminate in favor of one group is equivalent to discriminating against any group not so favored. Ordinary Trucksylvanians, who failed to see the big picture, were angry that their government was treating them unfairly. The French weren’t too happy either, because they had escaped the stigma of being “charity cases” only to be tarred with the new stigma of being “handicap hires.”
But the rulers of Trucksylvania were creative. They needed to think of a reason why it was important for companies to have French employees. It had to be something that didn’t depend on truck-driving ability, which the French lacked. Yes, the reason would be completely bogus. However, the Trucksylvanians expected that if it were even slightly plausible, and if everyone pretended to believe it, then it just might work.
They found their reason: “diversity.” It was vitally important, they said, to have diversity in the workplace, in classrooms, and in every aspect of life. They warned that if you didn’t have diversity, then you couldn’t … uh, you couldn’t … Well, it wasn’t too clear what you couldn’t do, especially if “diversity” just meant that you had to have some French people on the payroll.
For the most part, however, Trucksylvanians accepted the government’s argument. They had little choice, inasmuch as it had been made “a firing offence” to question the value of diversity or to question the abilities of the French.
Tallying Up: “The Perfect is the Enemy of the Good”
So let’s tally up the achievement of Trucksylvania. It started with an unfair situation: French people brought against their will into a society where they didn’t quite fit and couldn’t quite compete. Not their fault. Nothing wrong with them except that they were French, with French attitudes and abilities, trying to live in a society tailored to the attitudes and abilities of Trucksylvanians.
The rulers of Trucksylvania added just a little more unfairness to counterbalance their original sin of having owned French slaves. They mixed in a dash of propaganda and a pinch of hypocrisy, then stirred well. The result was a society in which the majority of good people, regardless of their truck-driving ability, could have a place at the table: the dignity of being citizens and full participants in Trucksylvanian society.
As Voltaire said, “The perfect is the enemy of the good.” Trucksylvania’s solution wasn’t perfect. But it was good.
*U.S. Supreme Court Justice Hugo Black (1886-1971) started his career as a member of the Ku Klux Klan, but kept it a secret until after he was already serving on the Supreme Court. Ironically, Black became one of the court’s most energetic supporters of civil rights for African-Americans.
Copyright 2009 by N.S. Palmer. May be reproduced as long as byline, copyright notice, and URL (http://www.ashesblog.com) are included.