Right-Wing has Racial Freakout over Sotomayor Affirmative Action Dissent

There's something really really distasteful and dark going on here in the level of vitriolic response to Justice Sonia Sotomayor's pointed dissent to the recent Michigan Affirmative Action Case.  In fact, it's flat-out ugly.  http://talkingpointsmemo.com/...

From the National Review

"Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described 'wise Latina' on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law," wrote the editors of the influential magazine. "Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order."

On Fox News.

"This was a decision written by somebody who was writing about emotion," he said, as quoted by the Daily Caller. "It was President Obama's 'empathy standard' — that's what he was looking for when he nominated her, that's what I think he got."

And even from her fellow Justice Antonin Scalia.

"As Justice Harlan observed over a century ago, '[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.' The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way," Scalia wrote. In an accompanying footnote, he referenced Sotomayor's opinion and added, "And doubly shameful to equate 'the majority' behind [the Michigan ballot initiative] with 'the majority' responsible for Jim Crow."

So from this we have been schooled and now know that President Obama's "Wise Latina" is clearly a racial emotionalist who is a legally illiterate activist intent on doing violence to our Constitution, a Constitution which is and always has been "Racially Blind" except for those clauses about 3/5ths a person and the Returning of Fugitive Slaves that led to the Dred Scott decision which denied any and all persons of African Descent the rights of Citizenship, until that was overturned by the 13th, 14th, and 15th Amendments. [We were so Color-Blind we needed Three Separate Amendments to finally see again.]  And of course those Rights were duly and fully honored by the courts via decisions such as Plessy [Which codified "Separate and Unsqual"] and clearly we didn't need Brown or the Civil Rights Act or the Voting Rights Act or the Public Accommodations Act, or Presidential Executive Orders to implement Affirmative Action to correct and deter several centuries of wrongs.  

Did we?

Perhaps all these Conservatives are just upset that within her dissent Justice Sotomayor apparently called Justice Roberts Out - somewhat.

In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

This has been taken to be a rebuttal to a 2007 opinion by Roberts which include the line...

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Which as Sotomayor explains is essentially like saying applying a cure for a disease is the same as spreading the disease itself.  Roberts even issued his rebuttal to her rebuttal within the Michigan decision.

The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” ... But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.

It does "more harm than good" to question the candor of those on either side? Hm, seems to me that there are plenty of people doing far more than just "question" Justice Sotomayor's candor.  It's not exactly a foregone conclusion that the existence of a racial preference, automatically causes an unfair disadvantage for someone else, or causes a stigma of inability for the person being benefited primarily because the SCOTUS itself has made many previous decisions which are intended to prevent that very thing from happening. If it wasn't possible to implement a Constitutional and Fair AA program the SCOTUS would have, and should have, banned it long ago - but they haven't and they didn't in this case either.

My problem with all of this is that it doesn't get to what the case was actually about, or what Affirmative Action is truly about.  This case was one where the State of Michigan had previously had two lawsuits filed over the use of Race in Admission, Gratz v. Bollinger, 539 U. S. 244, 27 where they found for the plaintiff and struck down those preferences as being too broad and Grutter v. Bollinger, 539 U. S. 306, 343, where they upheld the less broad preferences in place at the University of Michigan's Law School.  Because Grutter had failed, Affirmative Action opponents placed a Statewide proposition on the ballot (Proposal 2) which would ban all preferences in State Education and Public Employment.

The Proposition Passed and this decision let that Measure stand, reversing the 6th Circuit Court of Appeals which had struck it down.

Now in fact, if you ignore the semi-pot-shot that Sotomayor took at Robert's old opinion the true core of her dissent was that the court was reversing itself with this case and defying Stare Decisis.
 

This Court has held that the Fourteenth Amendment does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”  Wash­ington v. Seattle School Dist. No. 1, 458 U. S. 457, 467 (1982) (internal quotation marks omitted).  Such restructuring, the Court explained, “is no more permissible than denying [the minority] the [right to] vote, on an equal basis with others.” Hunter v. Erickson, 393 U. S. 385, 391 (1969). In those cases—Hunter and Seattle—the Court recognized what is now known as the “political-process doctrine”: When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.

 Today, disregarding stare decisis, a majority of the Court effectively discards those precedents. The plurality does so, it tells us, because the freedom actually secured by the Constitution is the freedom of self-government— because the majority of Michigan citizens “exercised their privilege to enact laws as a basic exercise of their democratic power.” Ante, at 15.  It would be “demeaning to the democratic process,” the plurality concludes, to disturb that decision in any way.  Ante, at 17.  This logic embraces majority rule without an important constitutional limit.

The point being that the court, many times, has recognized that Majority Rule is not always the last or best voice to be heard in a debate.  There are times when the will of the majority can be implemented in such a ways as to trample the rights of those not members of that majority.  She gave examples.

The Fifteenth Amendment, ratified after the Civil War, promised to racial minorities the right to vote.  But many States ignored this promise. In addition to outright tactics of fraud, intimidation, and violence, there are countless examples of States categorically denying to racial minorities access to the political process. Consider Texas; there, a 1923 statute prevented racial minorities from participating in primary elections.  After this Court declared that statute unconstitutional, Nixon v. Herndon, 273 U. S. 536, 540–541 (1927), Texas responded by changing the rules. It enacted a new statute that gave political parties themselves the right to determine who could participate in their primaries. Predictably, the Democratic Party specified that only white Democrats could participate in its primaries. Nixon v. Condon, 286 U. S. 73, 81–82 (1932). The Court invalidated that scheme, too.  Id., at 89; see also Smith v. Allwright, 321 U. S. 649 (1944); Terry v. Adams, 345 U. S. 461 (1953).

She notes how this case matches the prior precedent of Seattle.

In Seattle, a case that mirrors the one before us, the Court applied Hunter to invalidate a statute, enacted by a majority of Washington State’s citizens, that prohibited racially integrative busing in the wake of Brown.
...

 Brown charged school boards with a duty to integrate schools that were segregated because of de jure racial discrimination, but there had been no finding that the de facto segregation in Seattle’s schools was the product of de jure discrimination. 458 U. S., at 472, n. 15. Several residents who opposed the desegregation efforts formed a committee and sued to enjoin implementation of the plan.  Id., at 461.  When these efforts failed, the committee sought to change the  rules of the political process. It drafted a statewide initiative “designed to terminate the use of mandatory busing for purposes of racial integration.” Id., at 462. A majority of the State’s citizens approved the initiative.  Id., at
463–464.

So, her argument is that Michigan is like Seattle in that in both cases the States goals were to undo previously existing segregation in effect by taking positive steps to change that situation. This is her view of the precedent.

The Court invalidated the initiative under the Equal Protection Clause. It began by observing that equal protection of the laws “guarantees racial minorities the right to full participation in the political life of the community.”  Id., at 467.  “It is beyond dispute,” the Court explained, “that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner.”  Ibid.  But the Equal Protection Clause reaches further, the Court stated, reaffirming the principle espoused in Hunter—that while “laws structuring political institutions or allocating political power according to neutral principles” do not violate the Constitution, “a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decision making process.”  458 U. S., at 470. That kind of state action, it observed, “places special burdens on racial minorities within the governmental process,” by making it “more difficult for certain racial and religious minorities” than for other members of the community“ to achieve legislation . . . in their interest.”  Ibid.

So rather than being "Legally Illiterate" her view was the same as what the Court had previously held in prior cases.  Upholding the Appeals Court ruling would be been staying with the existing precedent. The SCOTUS has never held that Affirmative Action is Unconstitutional, rather it has held the it can be implemented under limited circumstances and over the years have further narrowed the window where it can be allowed. In the 1978 Bakke decision the court found that Quota and Quota Systems CAN NOT be used to achieve Affirmative Action goals, which essentially means that you can't implement a program that gives an advantage to one group at the expense of another.  As a result most of Affirmative Action Plans have for the last 30 plus years, focused on outreach and recruitment to expand the pool of disenfranchiced - yet equally qualified - applicants.  They don't change the test or requirements to admission, they just take a few steps outside of their local/majority pool to find people who are not such an "easy catch".  In subsequent cases they found that they could only be implemented to achieve a "compelling purpose" - the chief of which has been to broaden the diversity of the Class, Faculty or Worker pool.

The Majority Decision in Michigan determined that this case was not like Hunter or Seattle - well - just because...

Constitution permits, but does not require, the use of the kind of
race-conscious programs now barred by the Michigan Constitution. It foresees the ballot box, not the courts, as the normal instrument for resolving debates about the merits of these programs.  Third, Hunter v. Erickson, 393 U. S. 385, and Washington v. Seattle School Dist. No. 1, 458 U. S. 457, which reflect the important principle that an individual’s ability to participate meaningfully in the political process should be independent of his race, do not apply here.  Those cases involved a restructuring of the political process that changed the political level at which policies were enacted, while this case involves an amendment that took decision making authority away from unelected actors and placed it in the hands of the voters.  Hence, this case does not involve a diminution of the minority’s ability to participate in the political process.

Actually i would argue that the "ballot box" is not the place the Constitution sees as the place for resolving these debates because Direct Referendums Such as this are NOT IN THE CONSTITUTION.  The Constitution foresees Elected Officials making these decisions and the ballot box being used to change those Officials not completely bypass and override them. It also under Marbury v Madison sees the Court as the final arbiter of Constitutionality and protector of the individual and minority rights that the majority may unwittingly - or deliberately - trample.

Sotomayor also says this, arguing that those who opposed the result of Grutter could have lobbied to change the make up of the Governing Board who established the Admission Policies, and that by using their Majority Position to change the State Constitution they place the ability to re-instate AA policies beyond the electoral reach of the Minority. Just imagine if the court had decided this way on Proposition 8 in California?  The Majority gets to decide that you don't get Rights, you can be left out of participation because you're different - and you'll probably never have the numbers to reverse that vote and be included again. Ever.

The Majority also argued that even if this AA ban would have a racially disparate impact - the fact that it was done "without racial malice" (or at least no one has specifically admitted to such malice) makes it ok.  So even if they knew that minorities were probably going to get the shaft by this, too bad. So sad.

The interesting thing about all of this is that Conservatives often deride the idea that having a diverse pool of participants can be in-and-of-itself a worthwhile goal, until they consider whether they themselves should be included in that pool as Conservatives

Think about it. It is the default position of Conservatives that nearly all Mainstream Outlets are biased against them. They feel that they should have more representation and see more of their perspective in Hollywood. (And they have created organizations to implement this via people such as Gary Senise). They feel that local and Network News as well as Online and Offline Media organizations should have a healthy representation of the Conservative Viewpoint.  They feel this way about how School Boards should be run and nearly all public functions. They are in a constant state of self-observed Oppression, where whenever they aren't in the Majority, they take umbrage and curl into a angry fetal position of set-upon-ness, ready to lash out.

They complain that Conservatives were Targeted and Discriminated against by the IRS and because of that we are headed toward Nazism even when they weren't. They claim that they are underrepresented among the Academic Intelligentsia.

“This is a statistically impossible lack of diversity," Dr. Haidt concluded.... "Anywhere in the world that social psychologists see women or minorities underrepresented by a factor of two or three, our minds jump to discrimination as the explanation,” said Dr. Haidt, who called himself a longtime liberal turned centrist. “But when we find out that conservatives are underrepresented among us by a factor of more than 100, suddenly everyone finds it quite easy to generate alternate explanations.”

That their being Discriminated Against by FireFox.

We, the undersigned, pledge to uninstall or cease usage of Mozilla Firefox in protest over Mozilla’s decision to fire Eich for his position on traditional marriage, which is held by tens of millions of religious and conservative Americans. Mozilla’s intolerance and discrimination against those with different political and religious viewpoints stands in stark contrast to its supposed mission to enshrine “equality and freedom of speech,” and must not be tolerated.

And by Comcast.

Sen. Mike Lee is worried that Comcast, which owns NBC-Universal, could discriminate against conservative media outlets.

"Considering the well-known political leanings of NBC, I've heard concern that Comcast might have the incentive and the ability to discriminate against certain political content, including for example conservative content," Lee, a Utah Republican, said Wednesday during a Senate Judiciary Committee hearing on Comcast's planned purchase of Time Warner Cable.

They charge that everyone is biased against them - but let a minority person even suggest that sometimes, once-in-a-while, somebody just might have an unfair opinion or take a unfair position against them and BAM - that's person is called a Raging Racialist, overwhelmed by their Emotion and Grievance.  Their said to be "Playing the Race Card" as if this were some game of one-ups-manship.

Yet Conservatives play the Victim Card for themselves - Constantly.

Would Conservatives accept the notion that they aren't the dominant force in Hollywood or the Mainstream Media simply because - They are LESS Qualified?   That they simply aren't talented enough?  Probably not.  Do they feel the need to actually prove that they've been victimized before they start crying about it?  Nope. Yet they seem to feel that they have a Right to equal - or sometimes far more than equal on the Sunday Shows - representation and participation everywhere.  All. The. Time. Let a minority dare to ask for equal or proportional representation and they're treated like a Vicious Crazed Outlaw who hates America and American values.

"Don't you believe in Merit???"

But Affirmative Action doesn't presume to overcome a failure or weakness by a persons in a minority faction at the expense of someone in the majority. That's not the goal.  it is not a response  to ongoing racial discrimination or bias (although it can be implemented as a deliberate Correction for such bias when it is found and prosecuted via Consent Decree). Usually, it's a very limited counterbalance to the power of Majority Inertia which can - without any deliberate malice - create a chilling effect for all those outside that particular majority.  That inertia can - in effect - foster Self-Segregation where people can clearly sense they are Outnumbered, Uncomfortable and Unwelcome because they themselves are not within the majority faction.  Affirmative Action, done properly, is a Welcome Mat for those who may feel Unwelcomed.  People may make the honest free choice to segregate and separate, we all have freedom to associate - but there can be benefits to choosing to come together in common purpose.

That's one side of it, but another side is that in an educational setting, not all the "learning" comes from the text books and the teachers.  An additional benefit of having a diverse student body or staff is that students from different walks of life can Learn From Each Other.  They can discover things from someone from an entirely different perspective or part of the world that they might never have considered.  In this way, the spreading of a wider minority pool actually helps the Majority by expanding their field of experience and available perspective.

As a Black Man, how many times have I heard other Black men say "You won't find a  Black Guy Doing That..."  Thousands of times I would guess. It might be certain extreme sports, like Para-Sailing, Hang-gliding, Bungee Jumping, Parachuting but sometimes it's something pretty common like Skate-boarding (although that's gradually changing), Skiing, Surfing, Ice Skating, Competitive Swimming, Diving, Rollerblades, Motocross, Gymnastics [also changing, slowly] or Hockey. To which most should wonder - Why exactly Not?  Why wouldn't a Black Guy do that?

Well, because IMO they'd be massively outnumbered that's why not.  It's not that White People are out there saying "You can't!", it's literally that many Black people will say "We Won't!"  It's not Our Thang, it's Yours. We are already a minority, but in those environments we automatically become a Super-Minority.  A Minority of One.  That's intimidating. It just is.  And it doesn't require anyone else to have any specific animus against you, it's simply dealing with the risk of being completely, totally, alone socially and culturally - yet still pushing through.  That takes guts.  If you're in the majority and everything - and everyone - is already geared toward what you already expect, this probably doesn't even occur in your thought process.  You would be "Out of Touch" as Sotomayor would say with the "Reality of everyone elses experience".  It's common to be "blind" to someone elses perspective, at least until you have a chance to walk a mile in their shoes, but enforcing that blindness as a matter of jurisprudence is a dangerous game.

I was a Gymnast, despite it not being what "Black guys do". I used to Ski, and Ice Skate, was a Diver and played Tennis.  I Skate-boarded long before it was "cool". I'm a ROCK Musician, knowing full well - most Rock bands would look askance as soon as someone like me shows up for the rehearsal.  I don't do just what I'm "expected" to do - like Play Basketball (I mean, I do that too, but not just that) AA - when properly implemented recognizes this reality and with a welcoming hand, attempts to smooth the waters and help people get over that hump of fear and trepidation.  It doesn't require giving bonus points to minorities, in fact - the SCOTUS outlawed that in Bakke.

The Majority/Minority Faction issue is one that cuts across race, across gender, across economic class, across physical ability, across many sets of perspectives. It's not always White Vs Black, it could be Male and Female or the reverse depending on who happens to be in the majority in that particular venue. [This is why AA is usually implemented not just for Race, but also Gender, Religion and National Origin] This is the text of Proposal 2 as now fully enacted by the SCOTUS.

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Some would argue that this only presents a "level playing field", but that assumes everyone is already starting from the same place - and we all know they aren't.  Those with an advantage [like say the benefit of being a Legacy Admission], keep it, those at a disadvantage - stay there.  Nothing can be done to fix anything in the public sector. This would not just block attempts to correct participation imbalances on the basis of race - it would also Prevent taking positive steps - even if they don't harm anyone else - to eliminate gender and glass ceiling gaps for women in the public sector. The presumption is that if there is an imbalance it's not because of Social Inertia of the current majority faction - it's because minorities and women just aren't as good and that's the reason they "need help".  Therefore you shouldn't do it, because - if they need it they shouldn't get it. They should just grab their own bootstraps and learn to levitate - like Criss Angel:Mindfreak. Or something like that.

The Majority/Minority Fracture is a key item for Sotomayor as well as she explains in response to Justice Scalia.

JUSTICE SCALIA is troubled that the political-process doctrine has not been applied to trigger strict scrutiny for political restructurings that burden the majority.  But the doctrine is inapplicable to the majority.  The minority cannot achieve such restructurings against the majority, for the majority is, well, the majority. As the Seattle Court explained, “‘[t]he majority needs no protection against discriminat[ory restructurings], and if it did, a referendum, [for instance], might be bothersome but no more than that.’”  458 U. S., at 468.  Stated differently, the doctrine protects only the minority because it implicates a problem that affects only the minority.

Now the Conservative view is that - for everyone else - there are no social and cultural barriers like this that naturally occur. That the way to "Fix Racism" is to pretend Race doesn't exist.  There - problem solved.  POOF.  Those within a Majority faction don't get the benefit of commonality of viewpoint and perspective simply by being in that particular social group.  Just try to pretend that the idea of "White" and "Male" and "Christian-ish" as Default Human doesn't happen in America.  It's all Just in Your Head that you're on the outside looking in.  And if you are on the "outside" stop being different and act like everyone in the majority - who cares about that pesky "freedom of opinion/association" stuff anyway, that's there for show. Just pretend that certain people don't get the benefit of Network Effects that occur within Social Monopolies where all the social sockets and gears and ratchets and couplers are geared to be from their perspective, specifications and needs and just don't fit for anyone else. Why make any effort to allow for anyone else to "Fit" just as well too?  Clearly that's too much work and too much of a burden.  Why bother? It's not like members of the majority are always presumed smart and presumed Honest and Trust-worthy while all the swarthy people aren't. Pfft! And if those non-existent "different","Minority" people ["who must clearly be Un-Americans anyway"] are affected by any of this and can't find a way to "conform" and "assimilate" to hide their "different-ness" - well that's just too damn bad

Unless of course, the person who feels like the uncomfortable "fish out of water" by dint of most everyone else seeing things in a completely different way happens to be - a Conservative.  Because that's different.  Let's see them consider the idea that the way to fix partisan bias - is to pretend no one is a Liberal, and no one - is a Conservative.

"The way to stop discrimination on the basis of partisanship is to stop discriminating on the basis of partisanship."

Anybody think that would work?  I don't.

Vyan