Wednesday, June 03, 2009

The rights of the bigoted

Ah. To all ye charming, reactionary persons who find delight in hurling accusations of "racism" and "affirmative action pick" at Sonia Sotomayor, let it be known that this lady is on record as supporting your right to make any racially insulting, bigoted remark you choose, and in pointing up the dangers of enforcing politically correct attitudes at the expense of both privacy and the First Amendment in order to maintain one's Public Face.

The facts of Pappas are simple. The plaintiff was a white employee of the New York City Police Department -- working in a clerical position in information management -- when he was fired for having sent blatantly racist and anti-Semitic replies in response to charity requests he received in the mail. Pappas admitted doing it, and said he did it to protest the charity requests. The NYPD fired him for having sent the replies on the ground that it did not want racist employees. He sued the NYPD, alleging that his First Amendment rights were violated by the firing, because he was clearly fired due to the content of the political views he expressed.

The district court judge dismissed Pappas' case, finding that the NYPD had a legitimate need to exclude racists from its employ, a need which outweighed Pappas' First Amendment rights. On appeal, two of the three judges on the Second Circuit panel agreed with that ruling and dismissed Pappas' case. But not Sotomayor. She wrote a dissent emphasizing the strong First Amendment interests of Pappas' that were being violated -- however contemptible it was, it was pure political expression -- and she argued that it he was entitled to a jury trial to decide if the NYPD, under Supeme Court precedent, had any right to fire him for it.
As unpleasant as it may be to acknowledge, the fact is that persons who have been used to think of themselves as the Majority--Caucasian, Anglo-Saxon, Middle-Class Protestants, for example--are fast becoming a decided Minority in this country, and indeed, in this world. Insofar as this is a fact, and one likely to become more true as time goes by, it is in this Minority's best interests to hope that leaders of the New Majority make decisions from an empathic point of view: one that deeply considers your perspective, holding your rights as sacred as that of the majority.

In other words, you had better hope that they do not do unto you, what you have far too often done unto them.


george said...


“the Majority--Caucasian, Anglo-Saxon, Middle-Class Protestants, for example--are fast becoming a decided Minority”

As they, especially the male branch, are all being exiled to the outlands of civilized society, there isn’t likely to be anyone on the court who’ll empathize with them in the future. Who will empathize with the future Riccis who come before the court? Unless we expand the court (Supreme Court) to a thousand justices, or so, representing all national, racial, language, sexual, et al contingents. And then add one more seat for the odd Trobriander who happens into the country. I’d much rather we stuck with the cold law and left the empathy to novelists and the Times op-ed pages.

Pretty Lady said...

George, did you actually read the specifics of anything I wrote, or just go off on a pre-recorded tirade which is playing inside your own head?

george said...


I'd hardly call what I wrote a tirade. There was nothing long, angry, or abusive to it.

Now let me see if I've read you right:

Bigots who opposed Sotomayor should think again as Sotomayor has supported the right to be a bigot.

Bigots come largely from the Caucasian, Anglo-Saxon, Middle-Class Protestants pool of citizens and will one day be a minority. When that time comes it would be in their own interest if the new majority were empathetic (as Sotomayor has already proven herself to be) to their now minority point of view.

That about right? Then I commented that empathy was essentially buncombe if applied to decision making at the level of the Supreme Court. To rely on anyone's understanding or attempt to understand "A" may be fine for a night court judge but has no place for a Justice of the SCOTUS.

Pretty Lady said...

To rely on anyone's understanding or attempt to understand "A" may be fine for a night court judge but has no place for a Justice of the SCOTUS.

Hello? Did you just tell me that 'understanding' has no place on the SCOTUS?

Let me pause, to take in the implications of that.

Let me now try to make myself clearer.

The law, George--the 'cold law,' as you put it--postulates that people--ALL people--have certain rights. It is the task of a judge--ANY judge--to protect and uphold these rights, according to the law.

When certain people are seen as less than human, for whatever reason--say, that they are members of some Despised Group, whether this group be Suspected Terrorists or Bigoted White Males--the natural tendency of other humans is to abrogate those people's rights. (abrogate: to abolish by authoritative action: ANNUL; to treat as nonexistent)

It is my contention that the tendency to abrogate the rights of other human beings is not a desirable characteristic in a Supreme Court Justice. It is my further contention that those Justices who have the ability to acknowledge this common human tendency, and to consciously combat it in their thinking, are less likely to do so than those who have never considered the matter at all.

It is my final contention that this process--of endeavoring to view those persons whom one despises as nevertheless human, and defending their rights as though they were one's own--is not only a pretty fair definition of empathy, or the consequence of empathy, but that it is in no way contradictory to adjudicating the law in a fair and consistent manner. In fact, it may be a necessary element of such.

george said...


Yes I said “understanding”, i.e. empathy, has no place on the SCOTUS.

Your samples suggest a different “understanding” than what I had in mind. A judge who understands the human tendencies to filter, apportion, or even abrogate rights based on defendants’ social undesirability is of course to be desired, provided he has shown he can overcome such tendencies. My contention has to do with Ms. Sotomayor’s statement to the effect that she, a Latina, would be better able to come to legal decisions than white males, based on her life experiences. This is the understanding/empathy that I find better left at the entrance to the Court building.

Case in point, the Ricci decision. The cold hard law should be the only matter at hand, even if the judgment to be made lets stand a social injustice. Social injustices are to be dealt with by the legislature, not the courts. How is Sotomayor (or anyone else making a case for empathicalism as recourse to making judgments) to deal with this case. On the one hand, she is an intelligent woman who has made her way through Yale Law and on up to Appellate Court Judge (I believe she is an Appellate judge, yes?), all on merit so far as I can make out. On the other hand she is part of a minority. So, if empathy is to play any part in her decision making, which part of her life experience does she give free rein and which does she rein in? Does she decide for the white firemen based on their having been denied their promotions, which they’ve merited (promotion through merit being a part of her life experience), or does she decide against them in furtherance of minority representation in society’s institutions (a member of a minority being another part of her life experience)?

That’s all I meant by empathy being better left to op-ed pages and novels and out of SCOTUS.

Pretty Lady said...

You didn't read the Ricci case history very thoroughly, George. She DID decide according to the law. There was a very clear law in place which declared that a test which delivers an extremely racially unbalanced set of results is suspect, and must therefore be thrown out.

In fact, it leaves nothing to complain about--the legislature did its job in upholding social justice, the judge did her job in upholding the law. The only people upset are those that believe their emotions should trump the law--i.e. the ones who are upset that Ricci didn't get his promotion.

You seem to think that I am arguing for empathy as a means of introducing bias, when in fact I am pointing out that empathy can be a means of transcending bias, when appropriately applied. As I said in the post below, a truly sound decision must satisfy both the head and the heart. If one or the other isn't satisfied, something important has gone unconsidered.

And actually, your argument about 'a Latina would reach a better decision' is based on an incomplete understanding of the context in which she said it as well. I am not going to go into it because it has been thrashed to death in the blogosphere. If you were actually interested in the facts you'd already know them.

george said...


"She DID decide according to the law"

Which law? Civil Rights Act of 1964? Which prohibits racial discrimination. The test Ricci and the others took was a new test and was the product of a firm hired by the city to devise a balanced test. It seems that under no circumstances will minorities be allowed to fail - ever! And it's hardly fair to call Ricci and the other firemen's attitudes emotional. Having passed a test specifically designed to be balanced and being denied positions which they've merited, a court action seems the epitome of reasoned response.

I'll leave it at that - I sense a circle forming.