Many think President Obama and Judge Sotomayor did the right thing in retracting her now-controversial statement from her 2001 lecture, A Latina Judge’s Voice. Well, they may be right on one level – the level of political pragmatism – and they may be wrong on another level – the level of reality. The assessment that she should have retracted her statement was based primarily on her use of the word “better” in one sentence in that lecture. That assessment states simply that by using the word “better”, Sotomayor created a categorical distinction placing the decision of a Latina judge above that of a white male judge. After all, better means better. Of course, what is better is subjective and directly influenced by circumstance. In any case, she has apparently done as they suggest, certainly out of “political pragmatism”, and together with President Obama and others issued retraction/clarification of her statement. And, again, I don’t disagree with the assessment about the meaning of the word “better”. But I intend to show why that is a flawed criterion on which to base the need for retraction.
Full paragraph with the controversial statement from her speech:
“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” – (Emphasis added)
First, Sotomayor points out the simple truth that while we may not fully understand all the overriding causes, different individuals arrive at different judgments despite viewing the same evidence under guidance of the same laws when she questions the validity of the statement that "a wise old man and a wise old woman will reach the same conclusion”. She states the truism, “…there can never be a universal definition of wise.”
Is she wrong? Anyone who denies the reality of Sotomayor’s statement is ignoring the consistency with which we see ideologically split decisions in Supreme Court rulings.
Then she says that she hopes that “…a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”
What exactly does that statement express? It raises the concept of a broader breadth of experiences and expresses the idea that in some situations one set of experiences may be advantageous over another in providing a broader understanding of an issue and the statement expresses the hope that advantageous experience will not be wasted. Sotomayor does not definitively say that will happen or that it always happens, only that she hopes it will. Can anyone definitively say that is wrong? Should that hope be retracted?
In conjunction with the following statement --- “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar.” --- I think Sotomayor’s original qualifications of her statements were already adequate, as she has not made the definitive statements others have interpreted; she has stated her hope. In the preceding statement Sotomayor expresses that, just as there may be areas in which her unique set of experiences might be advantageous, there may also be areas with which she may be “unfamiliar”. So, in the above statement, she expresses the idea that the “richness” of a Latina judge’s experiences might give her a unique opportunity to expand into possible “unfamiliar” areas with unique insight. It’s important to note that she does not preclude the idea that others can do the same.
In the commonly held sense that exposure to more cultures gives a person a better-rounded worldview, Sotomayor expresses a sensible idea that someone reared with the strong influences of two different cultures, as opposed to a single culture, will hopefully, have a better-rounded approach to decision making. Is she wrong? I can’t say with certainty that she is, and she doesn’t say with certainty that she is correct; only that she hopes. She states:
“I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. […] However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care.”
She is clearly addressing the concept of a broader breadth of experience in this speech. While the meaning of the word “better” is specific, I do think the concepts involved with “breadth of experience” are not as clear-cut, and one might make an argument for her wider breadth of experience in that, as a minority (in this case a Latina) raised with strong influences from two different cultures, she may have keener insights in some situations than certain other individuals. In precisely what manner those insights might serve, nobody can say at this juncture, a point Sotomayor also makes, but we all gain from our experiences if we are wise enough to translate those experiences into gains, something which we all fail to do at times.
In other aspects of the speech she presents possibilities, musings, reflections, and contemplation about certain issues, which many have incorrectly conveyed as definitive statements that were not made. The media and the right-wing simply played this up into something that is was not. The argument for retraction, I think, proceeds from the perspective of the politically ‘pragmatic’ side of things, which seemingly would suggest retraction. I tend not to look at that as the highest value. I prefer the honesty and reality displayed in her statements.
The focus on one sentence, and more importantly on the meaning of one single word – better – is a simplistic interpretation of what was an intelligent, thoughtful, and philosophical speech about the law, the human psyche and societal conditions in America and, by extension, in the world. That single-minded focus presents an interesting contradiction; while insisting on the strict interpretation of the meaning of one word – better – it overlooks and disallows the specificity of the meanings of other important words within the same account, such as hope and wise, which when combined with the word “better” allow its presence to help convey a different contextual meaning. Consider this meaning of wise:
“having the power of discerning and judging properly as to what is true or right; possessing discernment, judgment, or discretion.”
By focusing on the meaning of one word, and ignoring meanings of other words, the meanings of Sotomayor’s statements in their entirety are lost. As I have said, I think the concepts involved with “breadth of experience” are not as clear-cut as the issue of the meaning of the word “better”, and I think that in the end, we can only speculate on such matters as “breadth of experience” and their influences in decision making; if one reads Sotomayor’s statements carefully, this was precisely her point, and I, for one, appreciate that she made it. I see no need for Obama’s or Sotomayor’s retraction solely based on the presence in Sotomayor’s statement of the word “better”; instead, any such need is solely created by the simple-minded misinterpretation presented by Republicans and the media of Sotomayor’s statements.
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Bottom line on this for me has always been that I would not want to be held accountable for every utterance I ever made...because time and context get distorted by time and context.
But even those things I wish I had not said (or more frequently, had said using other words) are a part of me...and I more than likely would be willing to "stand by them."
Whatever Sotomayor was trying to say in that paragraph...is something she probably still wants said. But as you have noted, pragmatism sometimes has got to rule the day.
If the pubic hair on the can of coke could be put behind us...for certain this paragraph will be put behind us also.
My hopes right now is that after confirmation, Sotomayor serves with pride...and that the people of America (and the world) will be the better for her service.
It's equally possible that her experience as a Latina precluded her from exposure to other environments that informed others more than her.
The "better" thing was a stupid and arrogant thing to say, and she and the president were wise to retract it. She also said other similar things. I sincerely hope you're not going to over parse them as well.
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GordO,
You make a curious judgment; you say I “over parse”. I'm not even sure how one can do that; it seems like a logical impossibility. You, on the other hand, under parse; which is more damaging? Over parsing, if it can be done, is not a problem.
Under parsing fails to connect the dots, it fails to collect together the necessary aspects of a statement that render the actual meaning of the statement. Under parsing is a distortion of meaning. Under parsing results from and/or caters to an inability to derive logical conclusions from written or spoken language and it pleases the simple mind. Under parsing is the “specialty of the house” for conservatives.
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Mr. E,
You write, “…it all comes down to whom she is judging doesn't it?”
This is not what she states. However, if it were, the same would be true of ALL judges and would, therefore, not have much significance.
Her speech was not about judging people; it was about the influences and shortcomings with which all judges must contend. It was about utilizing awareness of those influences and shortcomings in a manner that allows for transcending them toward a better-rounded, inclusive manner in interpreting law. Society’s laws are living, growing entities that grow and change as society does. This is what she was addressing.
Focus on that one sentence and that one word within that sentence, misinterprets her message. It is this misinterpretation that necessitates a politically pragmatic, but otherwise unnecessary, retraction. This kind of intentional misinterpretation underscores many of the political societal problems we currently face.
Second, when Sotomayor says, "I would hope that a wise Latina..." it's plausible, even obvious, that she's speaking about herself, in aspirational terms. The federal judiciary in the U.S. is 3/4 white men, if I remember correctly--why shouldn't Sotomayor aspire to reach better conclusions than her peers, most of whom happen to be white males? This strikes me as a perfectly innocent interpretation of her statement, with no defense in principle needed. (I agree with your views about pragmatics, though.)
Your understanding of what they is mine, as well.
Rob,
"But what if it were reversed? Wouldn't we judge differently a white man who believed his conclusions were superior because of his experience?"
Yes, I’ve heard/seen this “argument”, as well, and, of course, that argument still rests on the misinterpretation of her speech and its intent. You are correct, I think, in stating, “Part of the problem has to do with historical context …”. I think that was exactly the reason Republicans jumped on it immediately and the media saw an opportunity for sensationalizing the issue instead of presenting clear and intelligent analysis of the speech, which would have downplayed the misinterpretation.
Interestingly, as I was reading her speech, it became clear to me that Sotomayor does, in fact, recognize that there may be, and probably will be, areas that are “unfamiliar” to her and it is in this making this point that especially refers to what you have; that to which she “aspires”. She is, as you say, speaking in “aspirational terms”, not just about herself, but about all judges.
I wish i had a megaphone wired directly into their heads, where i could drown out the simple-minded reactionary know-nothingism and replace it with thinking. like this. Then again, nothing seems to work with the True Believers.
case in point: the pointlessness of gordonO. He is a colossal waste of time.
BUT,
you'll never get that into a 10-second sound bite to compete with the "Sotomayor's a racist" meme, which is after all a simple declarative sentence that everyone can understand without having to engage their brains
Experience means nothing if we don't learn from it.
Sotomayor obviously has, and she has just learned another lesson about DC politics. Anything you say can and will be used against you.
No thinking person should be offended by her remark. It does, however, taken out of context contain a presumption that is offensive, and is in fact quite illogical: Do I have to be a murderer to judge another murderer?
BO and SS are taking the politically expedient path out of this tempest in a teapot, and for that, they are to be praised. Certainly, the fool who would be king and darth cheney are yet to admit to error of any kind -- other than giving credence to the evidence for going to war in Iraq they forced the CIA to vomit up.
On other matters, OB is not so praiseworthy. Were I on the Senate Judiciary Committee, I wouldn't waste my time with trivialities like her statement. I'd be asking SS if torture was torture and if ex-presidents and vice-presidents are above the law.
I'd also ask her what business a sitting president (Obama) has saying torturers won't be prosecuted. NOT his job. By interfering with the DoJ and the AG in their duty to enforce the law regardless of political considerations, Obama has behaved no better than his predecessor.
Your point about “true believers” is acknowledged.
________________
Don,
Yep, a little chill-out time …
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Roy,
We are definitely suffering in the era of the “10-second sound bite”. I had foolishly sort of hoped that the Bush regime would have taught us something about that.
________________
Tom,
You make the point that the misinterpretation is “… in fact quite illogical”. What’s interesting about this point is that her speech contains the necessary qualifiers to show that it is illogical. It’s baffling that this gained the traction it did.
You also make a great point about what SHOULD BE a focal point: “Were I on the Senate Judiciary Committee, I wouldn't waste my time with trivialities like her statement. I'd be asking SS if torture was torture and if ex-presidents and vice-presidents are above the law.”
Your point is so glaringly obvious so as to reveal the façade currently taking place on a larger scale.
This is where her statement breaks down. The statements of those who are criticizing her aren't worth criticizing.
As for which of the esteemed senators of either party will be asking her opinion on torture and the prosecution of the executive. I'm betting NONE.
The irony is that it's generally the Republicans who are telling us that we're not all equal and that this pressure for equal opportunity for all is a bunch of hogwash. The fact that they are preferring now to push on this equality thing represents some weird shift in their strategy that would be almost heartening if I thought they would apply it uniformly and not selectively. I suspect they are doing it in a superficial tactical way, and that you are right to call them out on it, even if only symbolically.
I myself continue to be more troubled by that issue of respect for authority in the case that Paul Levinson raised. That's at least a matter of substance, and I wish the media would spend as much attention on that. The question of whether people can speak out publicly about their employers in situations she claims are going to be found by the employer is a big issue. And it becomes doubly big if government spending increases in the near-term because speaking out against one's employer might mean the government. Of course, that case was about the school, but the school is in my opinion an extension of the government. So that's why I want to hear more on that.
Overall her record looks mostly good, although I am nervous as ever when people are not outspoken on the abortion rights thing. My sense has been that both parties are seemingly championing her on that, seemingly for opposite reasons, and one will have been wrong.
But it's a sad day when someone is not allowed to merely speak. To see an effect coupled with speech is another matter. But this didn't seem to be of that kind.
It really is too bad that Sotomayor was "persuaded" to dial back her statement, not just because of the word "hope" being ignored, but because she was simply telling the truth about her own experience, i.e., that she is not a white, WASP, and otherwise privileged male. That alone should make her a breath of fresh air on court. Are only the interests of the specialized group to be represented there? Are only white, privileged (I probably should have said Catholic, rather than WASP) males the only ones capable of seeing the whole truth? Apparently, that's what those who idolize authoritarianism believe. Let them believe... and force them to allow others to believe as they do. How presumptuous to force one's own insights (I'm being generous here) upon another person who has an entirel different history of personal experience upon which to draw.
I honestly don't know even whether I would welcome Sotomayor's decisions on the court or not. (I haven't been happy with a number of Obama's most important decisions.) Besides, rising to such a position can easily have an effect on a person's vision of the world. She might become more conservative or more liberal. We really can't know.
As for the GOP penchant for making everything black and white and forcing apologies where none is needed, I predict that this will eventually come back to bite them you know where. I just hope I live long enough to see and relish it.
One of the best professors I ever had defined education as being all about learning to make fine distinctions. That most certainly is not the Black&WhiteGOP POV. The simpler, the blacker, the whiter... the better they like it. And it usually ends up being the meaner POV in almost any situation I can think of... It wasn't always like that.
How interesting that the present-day GOP is not content merely to purge their own ranks of those who do not kowtow to the likes of Rush or Newt, but must also waste everyone's time trying to manage the ranks of the Democratic Party, even going so far as to introduce a congressionalresolution to rename it! Good Grief! Their time would be better spent reflecting on exactly what it means that their own party is now the party of mostly white, mostly men, and mostly southern. Almost no one wants to join their ranks or be identified with them, and yet the College Republicans are so damned sure that all they need to do is tweak the newest technologies, like Twitter, and they'll be back up to their old numbers again.
If the GOP (the adult version) had any real brains at all, they would hire Stellaa as a political consultant, do everything she says (like the obedient authoritarians they are), and then we might finally have something resembling a liberal party again. Who cares if it's called Republican?
Finally, Pragmatism? It's just another word for utilitarian, the very kind of argument I hate most, because it's all about ensuring or guaranteeing outcomes (usually at the expense of a seemingly dispensable group), and is completely devoid of any trust in the true democratic process.
Sorry for the rant... I can't say exactly where all of that came from. Perhaps, it was from some "other" source.
Rated
"I think that was exactly the reason Republicans jumped on it immediately and the media saw an opportunity for sensationalizing the issue instead of presenting clear and intelligent analysis of the speech, which would have downplayed the misinterpretation."
I strongly believe that the misinterpretation is intentional. They cannot attack her on her record, or her education, or her ability as a judge, so they are reduced to playing off of easy soundbites that speak to the fears of their ever narrowing base. I have to wonder how much money they've raised with the constant repetition of this one quote so thoroughly taken out of context? Rated.
Thanks for this post... something meaty to chew over in the comments is always welcome.
Unfortunately it is a tempest in a tea pot and while I would rather that she stick with the statement as written, can you imagine her before the committee trying to explain in much shorter language than yours precisely the logic that got you to your conclusion here?
The fact is that the facts would confuse the hell out of the Repubs and would have them arguing that she was trying to obfuscate.
The larger irony to me is that a review of her entire judicial history and even her prior legal history, shows a woman who has hewed to a very centrist position. The Republicans would do well to give her a pass. The next one could be far more left of center and the Administration has the power to push any reasonable nominee through.
Monte
I too was miffed at how the media breathe life into this obvious attack that was clearly politically based and was planned well before Sotomayor was even nominated. You’re rebuttal to Mr. E (“It is this misinterpretation that necessitates a politically pragmatic, but otherwise unnecessary, retraction.”) clearly outlines the power that perceptions have over facts. Similar to a magician’s sleight of hand, many were sucked in by a few key words repeatedly offered up with no contextual foundation. I don’t agree with the move Obama made, but I understand why it needed to be done.
Thanks for reading and commenting.
Tom,
Perhaps I have misinterpreted YOU. Regarding the controversial Sotomayor statement, I agree with your original statement that, “taken out of context …” it is quite illogical, and I contend that within its original context, it is not an illogical statement. While I agree that one does not have to be a murderer to judge murder, I also recognize that there are other areas of the law in which a judge might be called to make a judgment in which a broader understanding of the human condition might render a wiser or, dare I say it?, “better” decision than might be rendered by one who does not posses the same breadth of experience. As you say, if our experiences hold any value, we learn from them.
Thanks for the input. I started a response to your comment, but it became so long that I decided it might serve better as a separate post on its own merits; I’ll have it up soon.
With regards to the case that Levinson raises, the decision of the 3-judge panel on which Sotomayor served was not based in the facets Levinson claims it was or, stated another way, the 3-judge decision in that particular case did not represent what Levinson and others see it as representing. Levinson claims that the 3-judge decision:
“failed to uphold Avery Doninger's claim that her First Amendment rights had been violated…”
A cursory reading of that 3-judge decision, in fact, does not fully support that conclusion. And the primary issues on which the 3-judge panel was ruling hinged more on other aspects of that case than on the First Amendment claims in the case.
I’m not sure what you are referring to regarding the “workplace”. Doninger had nothing to do with the workplace.
I did not mean to imply that you had not read the decision. But there are checks within the written decision that would seem to dispel your concerns about adults in the workplace.
I don't think the issue to which you refer exists, or if it does, it isn't because of this ruling. The ruling we're discussing was specific to students in schools, and specified that the same issues would not apply to adults in other settings.
“We begin with some basic principles. It is axiomatic that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). It is equally the case that the constitutional rights of students in public school “are not automatically coextensive with the rights of adults in other settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), but must instead be applied in a manner consistent with the “special characteristics of the school environment,” Tinker, 393 U.S. at 506.”
Even the issue of "citizenship" was specific to how it applied to her role in student government. From the original court's ruling we read that Avery was not “barred from running [for office] simply because she disagreed with school administrators and that is made clear by the fact that the other three students who sent the mass Jamfest email were permitted to run for student office."
Nothing was especially new or unique in this particular case aside from the fact that the form of speech used involved the Internet. The idea that this particular ruling established some kind of special new precedent is not accurate. And the idea that the ruling is somehow "anti-First Amendment" is also inaccurate for reasons of legalistic specifics.
With regard to the issue of the Internet, the court's ruling makes mention of the fact that this is, as yet, an uncertain area in the law as relates to students and schools. I would have to say that is most likely an opening for flexibility in future rulings. All of the concerns being expressed about this one case seem especially overblown to me. I haven't seen anything that supports the outlandish exaggerations I've read about it.
Obviously, they are miscontruing what she said, as many already have stated, AND a Latina woman couldn't ever possibly do ANYTHING better than a white man could... now could she?
My understanding is that precedent is not so black and white as this. While there are sometimes cases where the case specifically says it establishes no precedent, I assume most cases establish some precedent and that the question is whether and how that precedent will be used. It is not practice as I understand it to claim that the set of precedents that are set are enumerable. Besides, it is the Supreme Court. Whatever they say becomes the interpretation of precedent. And I'm less concerned with literal precedent and more concerned with how she thinks, as in, what will this bode for her in the future. If she thinks speech should impact eligibility for office, even in school, I'm a bit concerned about that. I just want her to make some statements elaborating on this. I am not comfortable with the over-reading of the stupid thing everyone is asking about “better” but I am comfortable with their asking her to expand on it just to hear how she thinks. Saying “nyah, nyah, you used a bad word or a word in a politically incorrect way and therefore you are forever a racist” seems juvenile and manipulative. But saying, “that's not something I'd have expected you to say. What is your position on these related questions...?” seems very in order. (Even though on that matter I think the “better” remark doesn't call for that, I can accept that others want to chatter a bit about it.) But I want the same for the first amendment thing. I'm not trying to trap her by her words. A lot was not said. But I want people to ask a lot more questions about how she thinks students, government, speech, jobs, etc. interplay. There may be some situations where students give up their rights, but I think that should not be casual and I see no reason in this case that they should. I'd like to see that explored well beyond what this case does. And it frustrates me that it is taking a back seat to this whole race thing. Geez, even if she were an out-and-out racist bent on the destruction of all other races (including mine), I daresay the Court has enough people capable of compensating that she would be no risk whatsoever to the public on that matter. But on matters of free speech, where we're hanging by a thread, I just don't see leaving it to chance because the number of votes is much more middle of the road. People tell me flag burning is special, too, just like you're telling me that schools/students are. Reasons to exempt people from protection of the basic amendments. But I don't see it. And you know what else? I don't understand why the Strict Constructionists aren't all over it either. The discussion is so selective. People have picked out who they want to win or lose and are looking for things to harp on that will support the outcome—people on both sides, as far as I can tell. I just want the serious matters that are likely to matter explored enough that I can have an informed opinion period.
You write, “If she thinks speech should impact eligibility for office, even in school, I'm a bit concerned about that.”
I get that and I agree. “If she thinks …”, then I would be concerned about it, too. What have you seen that indicates to you that she thinks “speech should impact eligibility for office”? This assertion was not an aspect of the Doninger decision and there is nothing in that decision that suggests such; that's all I'm saying.
My point is that there is no First Amendment issue, specific to Sotomayor, represented in the Doninger decision. There is also no racial issue represented in the speech. I agree fully with your overriding perspective, and I think the issues you are seeing in the Doninger decision with respect to the First Amendment are just as baseless as the racial issue in her lecture. Consider this from the original court record:
“Ms. Doninger's counsel conceded at oral argument on the summary judgment motions, that if, as the Court previously held, Fraser applied to off-campus speech, Ms. Doninger's First Amendment rights were not violated.”
I would be open to any argument reasonably supported by excerpts from the Doninger ruling that reveals genuine First Amendment concerns. I haven’t found any. Regarding First Amendment concerns, perhaps a great question for Sotomayor would be to ask her view on FISA, warrantless surveillance, and retroactive immunity for lawbreaking telecoms.
Oh, yeah, Obama voted for all of those things. I guess they won’t come up during the hearings.
;~)
You write, “The discussion is so selective. […] I just want the serious matters that are likely to matter explored enough that I can have an informed opinion period.”
Yes, I could not agree with you more. I think Tom Cordle made the same point above, but focusing on other issues, which I agree with him are more pressing than the non-issues supposedly raised in her lecture or in the Doninger decision.
Tom writes, “I’d be asking SS if torture was torture and if ex-presidents and vice-presidents are above the law. I'd also ask her what business a sitting president (Obama) has saying torturers won't be prosecuted. NOT his job. By interfering with the DoJ and the AG in their duty to enforce the law regardless of political considerations, Obama has behaved no better than his predecessor.”
Like you, I see a high level of frivolity in the racial issue, which was one of the underlying motivations for this essay, but also in these other complaints about Sotomayor based on Doninger, especially in light of what is currently occurring right out in the open with no effort to even disguise it. “We the People” are watching our elected representatives flip us off as they tell us they no longer must follow the same laws they expect others to follow. And in the face of this, we instead focus on fabrications about Sotomayor that have no support in the written record.
I have to agree with Tom that the things I would like addressed are her views concerning the crimes of the previous administration and, perhaps now, the present administration, as well. Do you think those issues will be addressed? Can you picture members of congress asking her questions about the First Amendment issues in FISA mentioned above, or whether torture is torture, or whether presidents are above the law, whether habeas corpus is important and whether detainees are entitled to it, or whether it is acceptable to violate international treaties to which the United States is a signatory? I don’t see that happening. Instead we’ll be seeing a dog-and-pony show of ridiculous questions about non-issues. Count on it.
“Avery’s language, had it occurred in the classroom, would have fallen within Fraser and its recognition that nothing in the First Amendment prohibits school authorities from discouraging inappropriate language in the school environment.”
It is this ability to take something from one venue and apply it to another that is very troubling to me. Many people, and all of us with Open Salon accounts, have blogs. Many of those (sadly fewer than should be, from what I read) have jobs. A condition of those jobs is certain on-the-job behavior. Gradually, though, I'm worried that the world outside work and the world inside work will merge. Right now some workplaces have restrictions on certain kinds of blogging. In the future, there may be other kinds of restrictions. Suppose this had not been school but rather a government job, and suppose that the person had called their boss (who happens to be a government official) the same name. Would that have been protected free speech or would it have been a violation of workplace standards? As I see it, there's only the tiniest of leaps from school decorum to workplace decorum, and only the tiniest of differences between going to a public school and working for the government—both are state-run places with arbitrary sets of rules created for the vague and subjective purpose of public harmony. I like the idea of dress code and language code, but I also like the idea of strong limitations on things that are allowable punishments. The notion that simply because one has total power with the school means one can apply any sanction there is troublesome to me. In particular, I would suggest the line where I am not comfortable is any line that potentially holds someone back. It is simply not true that grades are the only output of schools. So are clubs, and student offices. For someone aspiring to be a politician, telling them they cannot run for office is the equivalent of telling a drama student he cannot perform or a singer they cannot be in the chorus or someone who plays an instrument they cannot be in the band. This isn't just a punishment, it is a ruining of their future career. It is qualitatively different than telling them to stay after school or to stand in the corner or making them write an "I'm sorry" 100 times.
I'm also concerned about the selective exercise of the power in question. This is a very strong power and I'd like to know what the limitations are for using it. If powerful parents wanted to manipulate whether their kid was able to win an election, I could imagine trumped up reasons for kids to be kept from school elections on a case-by-case basis. (Very analagous to the question of why we aren't prosecuting torture, though of course the magnitude of the issue is quite a bit smaller.) If every student who uses a bad name for their teacher outside of school is able to be punished by the school, that's already bad. The web is now the public street, and I think the Court has not caught up with the significance of that yet. But what of the kids who are not prosecuted?
You should know that I have a friend who was outraged by some administration policy (probably the amount of the tuition, but I don't 100% recall) at his college and wrote "f*ckers" in the memo field of his check. (With the extra vowel there.) I can't remember what happened to him, but I'm pretty sure it was severe, like being put on suspension or something. Frankly, I don't see it. I'm sorry someone was offended, but college is expensive and sometimes harsh language just happens. I believe he was made to apologize to whatever sensitive person saw the remark and took it personally (who I'm sure was not the person—if there even was a specific person—to whom the remark was intended). I think it was just someone who saw it go by and couldn't bear to see a word like that written down. I'm sorry someone was offended by that, but whatever outrage they had was not worth putting the student's education in jeopardy. (I'm sure they would say it shouldn't have been worth him putting it in jeopardy himself, but who would have known they would or could do something in response to a simple remark.) I would like to know with confidence that our schools are not that powerful. I have seen some pretty darned poor judgment exercised by some teachers and administrators in my time, and I just don't think the schools should have the power alleged. I don't think they should have the power to reach to outside-the-school speech unless it incites imminent lawless action, which I don't think the vague term involved in this case did. I don't think even if they can reach outside, it should have the power to injure a student's future as I have argued it has. And I don't think it's healthy for us to be blurring the line between within-institution and extra-instituational speech because I see that on a collision course in the future, and I fear that the end result will be chilling on all speech by all work.
And even worse happens if the public speech is chilled by an employing organization that is a multi-national organization, perhaps exerting political control in this way. These things happen incrementally, a step at a time. You can say it's not there yet. But I'm not wanting to create the building blocks.
You assure me this is not a building block. I don't see the mechanism whereby I can enforce my rights to assert "Rick told me it would be ok." I am therefore worried.
I do not discount your concerns about protecting First Amendment rights, only the idea that the Doninger ruling creates some special concern that points us towards losing our First Amendment rights or, even more specifically, that it reveals Sotomayor harbors an "anti-First-Amendment" perspective as has been claimed. Even Doninger's own counsel recognized this. And there are certainly other things going on right now in this country that more definitively threaten us and/or our rights.
I am not telling you to rest your concerns just on my word; I have shown that the distinctions between the Doninger case and the sorts of things you are imagining --- distinctions which would lean towards preventing your imaginings --- have been made in the written decisions. There’s no need to take my word for it; they are found in the various decisions and memos relating to the case. You are drawing parallels between the high school environment and the workplace, which the Doninger ruling specifically denotes as different environments with different characteristics and therefore the need to be dealt with differently.
In the end, the First Amendment guarantees you can say what you want, but we all know there are circumstances in which saying what you want will carry a cost. Sotomayor and Obama were forced to retract something Sotomayor said years ago that had no bearing on anything significant, and everyone seems fine with that retraction. Why? Because there are certain expectations one must meet to hold public office, which, unfortunately in my opinion, percludes one from total freedom of speech. This is a lesson Avery Doninger learned the hard way. To use a currently very popular word for it, it is “pragmatism”.
Doninger’s behavior enveloped more than just what she said, too. There were specific actions Doninger took that others, who also participated in the off-campus speech, did not take; Doninger was barred from running for office, and the others were not, which shows the situation related to more than only speech. Since you are a parent, I know I don’t need to point out that kids are not little adults, but rather quite different in important ways; that is surely another issue in the entire matter of the Doninger case, not just the ruling, but the entire set of circumstances that led the lawsuit, as well as the legal distinctions that separate the high school environment from the adult workplace environment.
You want Congress to vet Sotomayor thoroughly regarding the First Amendment; that's fine. Supreme Court judges’ perspectives on the First Amendment are an important component of how they might shape the future. I'd like to see the same zealousness applied to Obama and some of his actions, not to mention members of Congress, which, frankly speaking, are far more threatening than the Doninger ruling, if for no other reason than the sad fact that Obama's actions and those of Congress are not speculation about future events that may or may not occur, but rather are actually occurring in the present tense and have already occurred in the past, they have already reduced some of our protections.
I’ll end by saying that I agree fully with you in the need to protect our First Amendment rights, and that there is no evidence in Doninger to support the charges that Sotomayor holds “anti-First Amendment” sentiments as has been charged, which doesn’t mean she should not be vetted thoroughly on the issue. Obama’s actions have been far more threatening to those rights; with that in mind, perhaps the fact that Obama nominated her is more of a reason to worry about her First Amendment views than anything in Doninger.
Take care.
At its heart, my problem is I simply don't believe the rule about rights in school is well-articulated, nor do I like what has been articulated thus far. I therefore expect it to change. And I therefore expect it not to offer good cover.
And it also pushes on another hot button of mine: I don't want my elected officials to be elected only from the set of people who are deemed good citizens by a person, court, or committee. Let criminals run if they want (the public can sort it out), and let them vote (I'm not worried they'll get a voting majority unless the entire society is corrupt; when more than half of your voters are criminals, you're talking political crimes.) Within the school, let the penalty be to tell the students what was said and let them vote. That was a terrible lesson in civics those students got. Whoever controls the questions asked in a poll controls most or all of the outcome.
But fine, there's not a lot of new here. It's ok if we wind this down.
Thanks for the comment and your perspective.
I have to agree that it is difficult to, as you say, “imagine her before the committee trying to explain in much shorter language than yours precisely the logic”.
I do not see that logic works particularly well with right-wingers.
I also agree with your assessment of Sotomayor’s perspective being somewhat centrist.
I believe that there are biological, as well as environmental factors, which affect our psyches. I think the Supreme Court could benefit from more female input.
It is a sad fact that our repressed culture requires a certain level of dishonesty from its elected officials, even though that dishonesty is then ridiculed.
You mention your unhappiness with some of Obama’s recent decisions as a reason for your own uncertainty about Sotomayor; I’m surprised more people have not made this reference.
I also define “education as being all about learning to make fine distinctions, critical thinking, which is something too many conservatives prefer not to deal with. Of course, failing to instill that in people serves the simplistic, backward conservative agenda.
I’m not sure I would equate “pragmatism”, as it is currently used, with “utilitarianism”. Pragmatism in its current usage seems to be simply a justification for not doing anything bold or inventive because, as I’ve stated elsewhere, Americans fear change. Utilitarianism is a necessary concept, I think, when it comes to a democracy because “you can’t please all the people all the time.” Pragmatism has come to mean simply doing what you can get away with while still offending the least number of people, regardless of any real utilitarian principles about “the most good for the most people”. Current usage of “pragmatism” doesn’t seem to incorporate the idea of maximum good, but rather minimum loss of popularity.
K o B,
Thank you for the comment. I would have expected no different from you. The idea that some people still wish to deny that our life experiences combine with our inherent tendencies to affect our perceptions just shows how far we still have to go to face the realities of our existence.
Shivaun,
Thanks for your contribution. The GOP response to this was merely predictable. But it seems that the majority of the media outlets are still not calling bullshit when they see it, and instead go along for the ride in sensationalizing this stuff. Meanwhile, real issues are not even addressed …
Spin Doc,
“… the power that perceptions have over facts” Yeah, we all suffer from this at times. Of course, it helps if we actually look at the facts to begin with. Take one sentence out of a long speech, focus on one word while ignoring other equally important words --- there aren’t any facts being considered.
La Captiana13,
Welcome, and thank you for reading and commenting. Sometimes those who cry “racism” first are actually the real racists.