Barbara O'Brien

Barbara O'Brien
New York, USA
October 01
Barbara O'Brien is the author of Rethinking Religion: Finding a Place for Religion in a Modern, Tolerant, Progressive, Peaceful and Science-affirming World, available at Amazon. She is the resident expert on Buddhism at and also blogs at The Mahablog.

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Editor’s Pick
JULY 15, 2009 9:40AM

Senate Republicans, Sonia Sotomayor, and the Default Norm

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I’ve used the phrase “default norm” a number of times, so it was nice to see Michael Tomasky (or at least, the headline writer at Comment Is Free) pick it up. Tomasky’s headline is “Because ‘white male’ equal default human ‘normal,’ see?” 

Conservative white men consider white maledom to be the default norm, and in their view “bias” is deviation from the default norm.  Thus, because Sonia Sotomayor's perceptions are shaped by her gender and ethnicity, she is biased. But the perceptions shaped by being white and male are not biases, because white maleness is the default norm.

Put another way, Senate Republicans made thorough asses of themselves yesterday  and might as well have grilled Sotomayor wearing Klan hoods.

You get another view of the "default norm" standard when conservatives whine about “judicial activism,” which they define as judicial rulings based on the judge’s ideology instead of precedent and statutory law. However, one soon understands by paying attention to to the Right that the real definition of “judicial activism” is “any judicial opinion that doesn’t align with right-wing ideology.” If a judge narrowly applies statutory law and comes to a decision they don’t like, it’s “judicial activism.” However, if an opinion breaks all precedent and sits in an entirely different ball park from statutory law, it isn’t “judicial activism” if the Right agrees with it.

Thus, as Dahlia Lithwick writes,

But even when Sotomayor is being questioned about her judicial record, the focus isn’t on her legal approach or process but on the outcomes. So when she talks about her Ricci decision, Jeff Sessions asks her why she didn’t apply affirmative action precedents that had no bearing in a case that was not an affirmative action case. When she speaks about Didden, her eminent domain case, Republican Chuck Grassley asks why she didn’t analyze the Kelo precedent in a case about timely filing. Nobody wants to hear how she got to a result. They want to know why she didn’t get to their result. Time and again she is hectored for deciding the narrow issues before her. It’s like a judicial-activism pep rally in here.

There’s another interesting dynamic going on here. The Los Angeles Times convened a panel of legal scholars to comment on the hearings. Erwin Chemerinsky, Dean of the UC Irvine School of Law, spoke for the rest of the panel when he said,

She repeated the slogan that “judges apply, not make the law.” Although I understand why this is said, I find it frustrating that nominees find it necessary to say something so clearly incorrect and that gives the public such a misleading picture of what the Supreme Court does. Every first-year law student knows that judges make law. In a common law system, like the United States, most of tort, contract, and property law is judge-made law. Everything the Supreme Court does makes law. To pick an example from a recent Supreme Court case, the Court would have made law whether it allowed or prohibited strip searching of a student suspected of having prescription strength ibuprofen. Whether the Court found a constitutional right to abortion in Roe v. Wade, or rejected such a right, it would have made law.

But, you know, after weeks of hysterical shrieking from the Right about an off-the-cuff comment from Sotomayor on making law, she has to say she won’t make law. Everyone still has to tiptoe around the tender sensibilities of the Right, no matter how ridiculous they are.

Mike Madden writes that Sotomayor said, “I want to state upfront, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging.”

Nevertheless, barely 10 minutes later, Sessions was asking her this: “Do you think there’s any circumstance in which a judge should allow their prejudices to impact their decision-making?” Sotomayor — who didn’t get to the point where she was virtually assured a seat on the Supreme Court by being born yesterday — knew how to answer that one. “Never their prejudices,” she told Sessions. But he kept at it. “Aren’t you saying there that you expect your background and — and heritage to influence your decision-making?” he asked. “That’s troubling me. That is not impartiality.”

This is rich:

The obvious point — that the background and heritage of old white guys influences their decision-making all the time, too — would not have been the politically sound one to make. So Sotomayor played it cool. “My record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case,” she said, and would wind up saying again and again, in more or less the same words, throughout the day. “In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.” A few hours later, Sessions flat-out told reporters he didn’t care what she’d said. “I don’t know — this is the confirmation process, so we got a statement from a day of the confirmation process that contradicts a decade or more of speeches.”

In other words, to Sessions, his biases against Sotomayor speak louder than what she actually said in the hearings. Madden continues,

That was more or less how the whole day went; Republicans hurled increasingly pointed questions at Sotomayor, the nominee calmly parried them, and the Republicans mostly ignored her.

This is old, familiar behavior to me, although not something I’ve had to deal with personally for several years. But I can remember in the 1960s and 1970s, when I was a much younger woman and second-wave feminism was still new, I very often found that men projected opinions and qualities on to me that I did not possess. And it didn’t matter what I said about my opinions or myself. They knew what I thought and who I was because I was female, and those females are all alike. I could say, “I sincerely understand grass is green,” and they’d flash me a condescending smile and continue to lecture me why grass was green and not blue. Their biases overruled what I said. Happened all the time.

Craig Crawford asks, “Does the Republican senator [Lindsey Graham, in this case] think it is amusing that he and his party’s condescending tone toward the Hispanic woman was costing them ethnic votes with each passing hour of Tuesday’s Judiciary Committee hearing?”

As I wrote in an earlier post, we all have biases. Generally being “fair” is not losing one’s biases, but perceiving one’s biases as biases. If you recognize your biases as biases, you are in a position to overrule them as the facts dictate. But if you are so unconscious of yourself that you don’t recognize your biases as biases, then your “thinking” generally amounts to casting around for support for your biases. Then you put the biases and the cobbled-together “support” together and call it “reason” or "common sense."

The unconscious crew of Senate Republicans who grilled Sotomayor yesterday brought up her “wise Latina” remark several times. It must have struck a nerve. Several of them at various times have said that had they said something like that, it would have been the end of their careers.

However, we can see plainly from the hearings yesterday that they can put on public displays of flaming racism and still hang on to their jobs. And, anyway, they don't have to explicitly proclaim their superior virtues as white men, because it is implicitly assumed.  As Mo Dowd said, “After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.”

Meanwhile, a right-wing group called Committee for Justice has created an ad that ties Sotomayor to Bill Ayers and the support of terrorism. The group is trying to raise money to put the ad on television. If I had any money I’d send it to them. Let the world see the absurdity, I say.

Update: Rush Limbaugh said of Judge Sotomayor, “She doesn’t have any intellectual depth. She’s got a — she’s an angry woman, she’s a bigot. She’s a racist.” That’s got to be an all-time high-water mark of psychological projection.

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sotomayor, politics, feminism

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Oh yeah, men still project opinions and qualities on to me that I don't possess. Bizare.
More name calling and personal attacks on the right. Nothing new here. Move on.
Blackflon -- yeah, I guess the truth hurts, huh?
Judge Sotomayor has been compelled to state her views on impartiality and the judicial process within the context of the "default norm". She is a wise Latina woman.
We ALL view and perceive our world within the framework of our experience and background. I think I would trust Judge Sotomayor's ability to do that because of the richness and diversity of her background more than I would of the "white guy" "default norm". Making decisions within the context of our unique blend of experiences and sometimes having to surmount the predilictions of those experiences make for better decisions as far as I'm concerned. So give me the "wise Latina woman". Any old white guy (like me I guess) who doesn't understand this distinction is a dinosaur perpetuating a status quo which has led to the quagmire we are currently experiencing.
In reading opinions by people like Thurgood Marshall I can see his wisdom and pain and also his concurrence with preserving and protecting the system we have (even with its flaws).
Great post, Barbara. The "default norm" is something which would be fun to seriously research not for the shock value of an expose but to more fully understand how decisions have been made and to hopefully chart a better course.
In defense of strict constructionism and original intent, it can be thought of as a useful and actually vital fiction.
Of course no Constitution can lay out everything in advance because of the limits of language.
In order for a Constitution to impart stability,however, is important that it is part of an ongoing and recognizable discussion.
Take Bush v Gore, please.

The left in that case all of a sudden found virtues in states' rights, while the right all of a sudden found virtues in the 14th amendment equal protection clause, both positions being inconsistent with their past rulings.
Harlan would have told them to stay out of it on original intent grounds, even though he was a conservative fundamentally, and whoever won would have had less of a legitimacy problem than turned out to be the case.
Original intent and strict constructionism are valid modes of interpretation when applied consistently, and do not constitute racism etc. facially, especially again if the point is to maintain stability in the law, and let the democratic process, badly flawed as it is, come to its own conclusions, rather than roaming the Constitution to impose rules that one likes at the moment, but which may well be found to be mistaken a la Lochner.
Walter, Judge Sotomayor is saying what she needs to say in order to get appointed to the USSC. They all do it that way. Some change along the way( Kennedy) and some don't (Scalia).

Barbara, thanks for at least admitting what you do.