The Atlantic - Latest Comments in Judicial Malpractice

Re: Judicial Malpractice

DaveinHackensack — Tue, 05 May 2009 17:12:05 -0000

Socgrad,

Again, I'm not interested in making an argument for or against affirmative action here, although I've mentioned I'm against it. I've explained why I think many people are skeptical of the abilities of recent affirmative action recipients: because they score worse, on average, on the relevant application tests than groups that aren't current beneficiaries of AA. You can argue that their worse scores on these tests are a result of past disadvantages (although certain facts, such as the children of poor whites outperforming the children of affluent blacks on SATs don't support this), but it's moot to my point.

"In America this segregation has always gone hand in hand with the neglect, disinvestment, and devaluing of communities and institutions that serve predominately non-white citizens. (You must have noticed this first hand if you went to a school with a predominately black student population.)"

Actually, no. Although my town was about half black, some of the schools, such as the elementary school I went to, were almost all black, with a smattering of Latinos. In order to encourage some white parents to bus their kids to this school from other, more racially diverse parts of town, the school tried to entice them with some 'enrichment' program stuff. E.g., occasional trips to museums in NYC, etc. My parents went for it, and had me bused there instead of going to the elementary school within walking distance (which was also majority black, but less so). As time went on, there were fewer and fewer white kids in the town's public schools, but that didn't lead to any lack of investment, because the white parents still paid property taxes in the town, even if they sent their kids to private schools. And the schools did things to gear the curriculum and activities to the majority of the students, for example, we read books such as "Native Son" and "Things Fall Apart" in English; the high school had, in addition to a marching band, a jazz band and a steel drum band, etc. Incidentally, and somewhat ironically, one of my best friends growing up in that town, the son of a professional African American couple, went to mostly white private schools. When it was time for college though, he went to a historically black college.

"As long as America operates within a racial system that values whiteness above all, the most direct way for non-white citizens to ensure that they receive equal treatment is to *be* in the same communities and institutions as their fellow white citizens."

Setting aside for a moment that we have a black man in the Oval Office, which suggests that America doesn't "value whiteness above all", as practical matter, the most direct way of injecting poor minorities into majority white neighborhoods they wouldn't be able to afford otherwise has been Section 8 housing vouchers. From what I've read (including a disturbing article here in the Atlantic some time ago), this has been largely a failure.

Incidentally, where do Asian Americans fit into your thinking?

Re: Judicial Malpractice

socgrad — Tue, 05 May 2009 16:19:12 -0000

You're right, I was being snarky by asking personal questions about your upbringing in relation to white privilege. But, the larger point, that if you are a white person born before the late 1970s and were raised in the U.S., you (and your family) received advantages in terms of housing, education, employment, healthcare, etc. that were systematically denied to most black people in this country, that point still stands. That's why it's called white privilege.

Which brings me to the next point, when you say: "The issue isn't that white people and other non-Asian minorities never received any advantages", this obscures the point. "Other non-Asian minorities" didn't receive these privileges, white people did. Again, it's called *white privilege*.

What I'm talking about (white-advantaged AA) isn't just a case of "we all get our breaks, and we all take our lumps", it's about a social, economic, and political system *designed* to advantage white people at the expense of non-white people that has been maintained until very recently in America.

As to the value of diversity, I think the moral value of citizens of a racially diverse country actually living integrated lives is (hopefully) pretty obvious. But to answer the subtext of your question: if white neighborhoods are so good that they would be considered an advantage of white-advantaged AA, then what's the value of diverse neighborhoods? Again, this is an area where understanding historical context comes in handy.

It's not simply the segregation of white and black people in different neighborhoods, jobs, schools, etc. that is the problem. In America this segregation has always gone hand in hand with the neglect, disinvestment, and devaluing of communities and institutions that serve predominately non-white citizens. (You must have noticed this first hand if you went to a school with a predominately black student population.) As long as America operates within a racial system that values whiteness above all, the most direct way for non-white citizens to ensure that they receive equal treatment is to *be* in the same communities and institutions as their fellow white citizens.

Now that's my personal argument for the value of diversity. It's not the same as the mainstream argument, which I don't agree with.

Re: Judicial Malpractice

DaveinHackensack — Tue, 05 May 2009 15:23:08 -0000

Socgrad,

I happen to be opposed affirmative action, but I haven't attempted to make a comprehensive argument against it above, "ahistorical" or otherwise. I simply explained why I think many people are skeptical about the abilities of recent affirmative action recipients. The issue isn't that white people and other non-Asian minorities never received any advantages; as Ta-Nehisi wrote, and I acknowledged, we all get our breaks, and we all take our lumps. A key reason why people are skeptical of the abilities of recent affirmative action recipients is the average differences in application test scores that I mentioned in the third paragraph of my post above.

"Think about that for a second. It is highly likely that you (and most certainly your parents) grew up with the advantages of white-advantaged AA in housing (how many black people lived in your neighborhood?)"

Not that it's relevant to what I've written above, but you have no idea about my background. There were plenty of black people in my neighborhood, and there were so few white kids in my school that when we put on a play about Civil Rights they made me play the role of the bus driver who called the cop on Rosa Parks for not moving to the back of the bus (one of the two or three other white kids in our grade had to play the cop). As for my parents' background, I don't feel like getting into it here in detail, but, suffice it to say, if you knew about it, you wouldn't have taken this tack.

More generally, your comment about the supposed advantages of growing up in a white neighborhood raises another question: what, in your opinion, is the value of diversity? Since diversity (in student populations, organizations, etc.) is one of the arguments used in support of affirmative action, the conventional wisdom seems to be that diversity is a good thing. So why wouldn't someone be better off growing up in a racially diverse neighborhood (as I did) than growing up in a white neighborhood?

Re: Judicial Malpractice

socgrad — Tue, 05 May 2009 13:05:31 -0000

It is amazing the extent to which you insist on making a completely ahistorical argument against AA even when you are made aware of the *very long* history of affirmative action for white people in this country. TNC laid out a very detailed description of the extent of white-advantaged AA in America and you have yet to adress it.

The point is very easy to grasp. If you argue that it's reasonable to question the qualifications of recipients of current AA policies, because you believe that current AA helps minority candidates gain positions they otherwise wouldn't be able to obtain based on their merit alone, then logically you must question the inherent abilities of recipients of white-advantaged AA.

As TNC explained, these white-advantaged AA policies in housing, education, employment, healthcare access, etc. enabled white people to compete for resources (be they college admissions or employment) against a drastically smaller group of competitors. This means, very directly, that some white people (of lower intellectual caliber, drive, or *work ethic*) were able to gain advantages in education, employment, housing, etc. that they otherwise wouldn't have been able to obtain if they had to compete amongst a wider pool of competitors.

Mind you, this isn't an argument in favor of AA. I'm simply trying to point out to you (again) how questioning the abilities of current AA recipients while refusing to question the abilities of white-advantaged AA reciepients is untenable and intellectually dishonest.

Also, I cosign TNC's description of white-advantaged AA, although I think he lets the North and the contemporary period off the hook by focusing on the discrimination of the South and the past. Employment, housing, education, and healthcare access segregation was endemic throughout the North and the Midwest as well as the South. Furthermore, it wasn't until the mid-1960s and well into the 1970s, that the federal government started *prohibiting* discrimination in housing and employment instead of *endorsing* (and in the case of housing, mandating) discrimination.

Think about that for a second. It is highly likely that you (and most certainly your parents) grew up with the advantages of white-advantaged AA in housing (how many black people lived in your neighborhood?) or education (when was your school desegregated?) or employment (did your father have a black supervisor or black colleague when you were growing up?). Should we start questioning your (or your parents') abilities and whether you actually deserve to be in whatever employment you're in now?

Re: Judicial Malpractice

CitizenE — Tue, 05 May 2009 12:41:57 -0000

Let's say Ms. Sotomayor was admitted to Princeton because of Affirmative Action. Let's presuppose it. She wound up Summa Cum Laude. Let's say despite the highest possible honors at Princeton, she got into Yale Law school as an Affirmative Action candidate, not becase of her record at Princeton. Let's presuppose it. She wound up editor of the Law Review.

I guess Affirmative Action worked.

Re: Judicial Malpractice

DaveinHackensack — Tue, 05 May 2009 11:51:38 -0000

OK, thanks for fleshing out your position on redlining, and for linking to your post on the New Haven Ricci case.

I agree with your position on Ricci, by the way, and after reading Rosen's TNR article (which I hadn't yet read when I wrote the comments above), I see there is a connection to the Sotomayor in that she was on the panel that rejected Ricci's appeal. It's also worth noting that the city of New Haven spent a lot of money and time deliberately constructing the promotion test (both the written part and the oral parts) in order to scrupulously avoid even the appearance of bias.

I understand your point about how the deck was stacked against blacks and in favor of whites in the segregated South, but I think you are missing a key reason for the skepticism about the abilities of today's affirmative action recipients. You are focusing on the fairness/advantage aspects. We both agree about the evils of the racism and segregation in the South. We also agree that, even absent those sorts of gross, institutional injustices, life is rarely fair. Like you said, we all get our breaks, and we all take our lumps. The case of the Senators you mentioned muddies the waters a bit though because -- whatever their talents or lack thereof -- they are elected officials. The qualification for that is getting elected, and, while it would be great if all of our elected officials were brilliant, that's not a requirement for the job.

The key reason for the skepticism about the abilities of today's AA recipients, I think, is the large differences in the average test scores of the AA recipients versus the non-recipients. If you look up LSAT scores by ethnicity, for example, you'll find that Ms. Sotomayor's ethnic group (Puerto Ricans) scores the lowest, on average, on the test. Of course, that doesn't tell you what she or any particular individual scored -- she could have aced the test, for all I know. But you see similar patterns when you look at other admissions tests, whether it's the SAT, the MCAT, etc. Granted, there are other forms of affirmative action at the undergrad level (e.g., for athletes, legacies/children of large donors) and there is skepticism about the abilities of these unofficial AA recipients for similar reasons. If their test scores were broken out, and showed similar differences, on average, with other groups, that skepticism would probably deepen.

Re: Judicial Malpractice

eric — Tue, 05 May 2009 11:36:50 -0000

Actually Scalia is quite frequently called a bully. You know, because he is.

Re: Judicial Malpractice

eric — Tue, 05 May 2009 11:13:45 -0000

It works better if you just directly link to William Saletan's Slate column, rather than pretending the ideas are your own.

Re: Judicial Malpractice

Neil — Mon, 04 May 2009 21:21:22 -0000

I find it interesting to see all the different responses to this article. It's not too surprising that some of the most passionate and alarmed responses come in reaction to the issues of race and gender, but I don't find that the most egregious issue here.

Nor do I think the most egregious issue is how poorly sourced the article is.

Both aspects are horrendous, don't get me wrong. The fact that this man is considered a professional (combined with some of the most serious questioning our former secretary of state faced coming from a 4th grader) is why many people plan to dance on the ashes of the newspaper industry (perhaps journalism in general).

But to me, the most horrendous aspect of this article is the fact that it was even written. What is the purpose of this article? It exists to cut down a woman who a large number of media professionals have put on their shortlists to fill the open supreme court position. She is NOT Barack Obama's nominee to fill the open SCOTUS spot. She is NOT even on Barack Obama's short list as we have no idea what his shortlist entails. This is just a woman whose name has been bandied about by people who have no idea what's going on with the people actually making the decisions. This is greatly troubling. What if she isn't the nominee? What is after the fact we find out she wasn't even in consideration? What was this article about? It just comes off as a mean-spirited attack against some lady at that point. When did it become okay to attack some woman because some people are speculating she might be on a list that might have the nominee selected from it. Speculators haven't just ruined the financial industry, they've ruined journalism as well.

Re: Judicial Malpractice

PhoenixRising — Mon, 04 May 2009 20:53:15 -0000

Shorter Jeff Rosen: I'm not saying anyone is right when they suggest that this judge expresses the exact stereotypes most often raised against folks of her gender and race, but if so many anonymous sources suggest that in this case the stereotypes might run true. But I'm not saying it, I'm just repeating it.

Jesus, why not just write: Hey guys, the melanin and testosterone are all out of proportion on this one. She may have benefited from affirmative action 30 years ago to get into a position to write the opinions by which we might objectively assess her intellect and temperament, so look out.

That would take even less effort and have the added advantage of openly displaying the biases of the writer instead of playing hide and seek.

Re: Judicial Malpractice

Vermando — Mon, 04 May 2009 20:12:50 -0000

There should have been a question mark at the end of that sentence, by the way. Apologies for the double post - feel free to erase / fix.

Re: Judicial Malpractice

Vermando — Mon, 04 May 2009 20:12:02 -0000

Sort of like how most baseball historians today acknowledge that we have to take the records / accomplishments of the major leaguers of the first half of the 20th century with a grain of salt because they weren't playing against African-Americans.

Re: Judicial Malpractice

Ta-Nehisi Coates — Mon, 04 May 2009 19:27:20 -0000

Redlining, in concert with racial covenants, advantaged whites the way all discrimination advantages those who aren't discriminated against--it means less competition for wealth. In the long term, I'd argue that it DIDN'T advantage whites, but in the short-term it's allowed a whole generation to accrue wealth in ways that blacks weren't allowed to. This was not some hoodoo, or an unexpected outcome--it was government policy. See Kenneth Jackson's Crabgrass Frontier for more.

This is off-topic, but since you asked, I've written about New Haven and the fire department:

http://ta-nehisicoates.theatlantic.com/archives/2009/04/maybe_you_should_study_harder.php

I think you're missing my point on Affirmative Action and Jim Crow. I make no brief for AA's equalizing effects. My point is that if you're going to be suspicios of minorities because they may have benefited from Affirmative Action, then you need to suspicious of a lot of white people who've been advantaged, not simply by government-sanctioned discrimination, but by government mandated discrimination.

It's always interesting to see people complain about the "unfairness" of AA in higher ed, as though historiclly higher ed has been fair. Up until the 1960s, there were state run universities throughout the South, which blacks paid taxes in order to maintain, but could not attend. Many whites accessed that education and went on to accumulate wealth in neighborhoods that discriminated, and work in jobs that also discriminated, firmly assured that they'd never have to compete against an entire race.

This point can't be emphasized enough--the University of Mississippi did not simply favor whites, as one can say AA does for blacks, it worked to create a racially supreme class of whites by assuring that they never have to compete against African-Americans. In point of fact, the most aggressive Affirmative Action program ever practiced was implemented on behalf of whites--and its effects lay not in the distant past, but in the makeup of the United States Senate, in the boardrooms of corporate America etc.

Again, I'm not arguing for the sacredness of race-based AA. But I think people who get it in their heads that people who've benefited from race-based AA aren't smart, or aren't desrving, exhibit a very selective skepticism. They don't blink twice at, say, Jeff Sessions who came of age in Alabama at a time when the state government was effectively practicing aparthied and following a policy meant to advantage blacks and disadvantage whites. They don't think about a Lindsay Graham who was the product of a public school system which had a long history of doing the same.

I think we all get our breaks, and we all take our lumps. I'd never say Lindsay Graham doesn't deserve his Senate seat. I just want AA critics to grapple with history.

Re: Judicial Malpractice

Eccentric Hat — Mon, 04 May 2009 19:24:42 -0000

Here is Ta-Nehisi's post on the New Haven case.

Re: Judicial Malpractice

DaveinHackensack — Mon, 04 May 2009 18:51:22 -0000

Green,

"So what is the nuance I missed?"

The phrase "to what extent" in this sentence,

If you know that law schools, for example, give preferential treatment to Latina applicants, it's hard not to wonder to what extent a particular Latina attorney's career might have benefited, and been facilitated by, such preferences.

That's different from wondering whether, as you wrote, someone's accomplishments were due "only" to AA.

Ta-Nehisi,

If you've explicated your theory on how redlining advantaged whites at the expense of blacks, please link to it so I can read it. I'd also be interested in reading more on your agnosticism about AA. What, for example, is your opinion about the current Supreme Court case related to the New Haven fire department? There have been similar issues, incidentally, in New York, though with the FDNY I think the test in question was for applicants to the department, whereas in New Haven the issue is with a test for officer promotions.

Regarding the racist policies against blacks in the Jim Crow South, we (and, I would think, all reasonable people) agree that they were evil and unfair. I'm not sure how much either has to do with the current debates about affirmative action though. If you want to argue that AA is meant to compensate for what Tillman and others did a hundred years ago, that raises a number of other questions. For example, why should recent African or Caribbean immigrants or their children (not to mention non-blacks) benefit from AA?

Re: Judicial Malpractice

Sorn — Mon, 04 May 2009 18:32:18 -0000

To re-phrase Samuel Johnson Anonymity is the last refuge of a scoundrel.

Re: Judicial Malpractice

bread & roses — Mon, 04 May 2009 18:19:05 -0000

If you're suspicious of legacies as well as minorities and women, as well as scholarship athletes and beautiful people and people who grew up in a privileged environment, I think that's perfectly fair. My point was that many people benefit from hidden advantages that don't spring as easily to (some people's) mind as affirmative action.

Re: Judicial Malpractice

NYC_Charles — Mon, 04 May 2009 18:12:10 -0000

One thing I don't hear raised nearly enough is that elite colleges and law schools and such are basically able to select students with qualifications far in excess of what is necessary to do well at that school. The level of intelligence needed to do well at Harvard isn't really that much higher than what is needed to do well at a very good state school, but Harvard has a much stronger ability to cherry pick its student body (it has a better name, it has a smaller student body, it doesn't have an obligation to educate as many people as it can, etc.). So, someone with an undergrad GPA from a good school of 3.5 and an LSAT of 165 is probably smart enough to get through Harvard Law. But Harvard can be way more selective than that - it can insist you have a 3.8 and a 175 (or whatever). This is the dirty secret of higher education - students don't have to be the smartest in the world to do well, they just have be smarter than a certain floor. (There have actually been serious proposals that universities pick applicants above the floor out of a hat instead of make arbitrary decisions based on GPA, test scores, etc., but no school will do that in our current rankings-obsessed world).

In this light, affirmative action is basically saying "we are going to accept some students who are above the floor, but not at the level of the rest of the people we are accepting." Once there, they get the same education as their peers and once in the workforce, they do the same jobs. So maybe they weren't as "competitive" based on high school or undergrad GPA or test scores or whatever, but I can't imagine how that is relevant once you've graduated and gotten a job...

Re: Judicial Malpractice

Byrk — Mon, 04 May 2009 18:02:20 -0000

As for the idea of unnamed sources, if you have a high degree of trust in them, I don't see much problem under the circumstances.

I think it's more that the press has completely abused the idea of anonymous sources over the last few years, I place little trust in them. It's like when they would quote "Senior Administration Officials" who'd say something like "George Bush's policies are working great" Why the hell does it need to be anonymous, if it's approval of your boss' policies?

I agree that unnamed sources are appropriate, but since I have lost so much faith in the media I can't trust them to verify the source properly.

Re: Judicial Malpractice

Green — Mon, 04 May 2009 17:41:07 -0000

There's a difference between making judgements/assumptions about some college kid who's never done anything in life except get into college, and a seasoned professional for whom that acceptance letter is but a distant memory.

I honestly don't have much of a problem with people who make assumptions about people based on limited information. Sometimes it's necessary. Whether it's assuming that the football players aren't as bright as the rest of your classmates, or it's crossing to the other side of the street when you see someone that fits your visual image of "shady", I get that, and don't necessarily think there's much wrong with it

.

The key phrase in your post was until proven otherwise. The thing is, you can build up a data set pretty quickly to prove disprove your preconceptions. Even while still in school you could prove disprove your preconceptions about, say George Bush. Check his G.P.A.- C student- you were probably right.

Or for someone questioning Sotomayor- suma cum, editor of the Yale Law review, succesful litigator- you were probably wrong. I think when "human nature" moves towards bigotry is when one holds onto their "suspicions and doubts" or preconceived notions in spite of substantial evidence to the contrary.

Re: Judicial Malpractice

janinedm — Mon, 04 May 2009 17:17:32 -0000

Let me get this straight, people write poorly sourced articles because of Affirmative Action? His article was the equivalent of sending out a bowl of batter rather than a slice of cake, I don't care whose prejudices it jibes with.

Nuance: a pseudo-Socratic method by which one tries to convince people to agree with played-in-1992-AA-ideas by insisting that they view "questions" in a certain way. Related: "black belts" who can only kick butt when you come at them from a specific angle in a specific pose.

Re: Judicial Malpractice

SteveN — Mon, 04 May 2009 17:00:55 -0000

Rosen really did himself no favors by making such a flimsy case. I wish he had admitted at the beginning of the article that he hadn't studied her writing so I would have known not to bother reading the rest of it.

David Brooks' critique of Harriet Miers is a much more fair way to object to a potential Supreme Court nominee:

http://select.nytimes.com/2005/10/13/opinion/13brooks.html?_r=1

Re: Judicial Malpractice

DougEMI — Mon, 04 May 2009 16:46:59 -0000

I read this piece this morning and thought it wasn't very useful, though he did provide a lot of examples to support either side. I just really wonder how many here who object to unnamed sources would be raising a similar stink if they were saying the same things about a Bush appointee like Harriet Miers or complaints that John Bolton was a bully. While many did think Miers proved herself to be incompetent, she was recommended for the post by a Democrat, and republicans, even if they could cram her down the Senate's throat, didn't want her because they prefered a better conservative.

Maybe some of these unnamed sources feel the same about this Judge, and they want a towering figure on their side that Ginsburg and Breyer aren't.

As for the idea of unnamed sources, if you have a high degree of trust in them, I don't see much problem under the circumstances. I have seen that even on the local level, people tend to kiss the asses of judges something fierce. Especially by attorneys that may practice in front of that judge.

Also, this journalist has to write profiles of all those in consideration, so he isn't going to be able to delve into all the opinions of all the candidates, then interview different scholars to get their opinions on her opinions. It just struck me as the usual fare you get from journalists, a lot of "on this hand" stuff.

I got out of it is that she is qualified, she just might not be the best Justice ever. Then again, even after a long process of thoughtful examination, people on the left and right thought Souter would be a conservative justice.

Re: Judicial Malpractice

Lee — Mon, 04 May 2009 16:40:49 -0000

I don't have a strong general opinion on AA- I think when it's done right, in the right place, it's good, and when it's done wrong, in the wrong place, it's bad. That said, AA of the variety that "lowers the bar" for members of certain groups absolutely does have the side effect of making people question the "actual" abilities of members of those groups, and I don't think that that always results from racial or gender-based prejudice. To wit: I went to a college that had a strong "affirmative action" policy in favor of legacies. When I met someone who mentioned that their dad had gone to my college, I generally assumed that person was not as smart as the average non-legacy student, until proven otherwise. This wasn't racial prejudice- these were some of the WASP-iest people I have ever met. While some could have gotten in without being legacies and some were as smart as anybody on campus, the simple fact was that on average, most legacies WEREN'T as smart as the average non-legacy student, so it was a fair assumption. (Yale was not my alma mater, but I'd be inclined to take George W. Bush as an example of this).

This isn't to say that affirmative action of the "bar lowering" variety for members of certain groups can't have positive features that outweigh the side effect mentioned above; just that I wouldn't dismiss the side effect as a pure product of bigotry.

Re: Judicial Malpractice

Joshua Lyle — Mon, 04 May 2009 16:24:01 -0000

(replying to jenawesome @3:46 here as comments only nest finitely)

...which is a perfect justification for traveling backwards through time to correct that injustice, or, for want of an opportunity to implement that option, to compensate them for it. However, this is not exactly what conventional AA programs do.