Do you think Shelby Steele believes what he writes?

Mom sent me a link to a Wall Street Journal Op-Ed piece by Shelby Steele, a black intellectual who is a fellow at the Hoover Institute. She sent it to me (I presume) because she sees it as bolstering the anti-Sotomayor rhetoric of the right. Or perhaps she wanted to open my eyes to some sort of “truth.” She also begged me for a balanced response, as she has been quite offended by my “squeal little piggies” attitude of late.

Fair enough. We don’t want to upset mother.

I think all the Steele op-ed shows is that the Hoover Institution is still a bastion of conservative ideology. The only truth I can find in it is the truth that conservative intellectuals, even black ones, are still willing to promote racism in the guise of a merit system, but one which is biased in favor of whites. But I don’t want to sound guilt ridden over the actions of my ancestors, nor do I want to sound like some politically correct drone, so I’ll just look at Steele’s words for a moment.

First, he seems to suppose, as do many, that Obama is supposed to be a “post-racialist” president. First of all he is using the term “post-racialist” incorrectly. Racialism means the assigning of characteristics or traits to a group of people based upon their ancestry. Steele is using it to refer to the use of race as a basis for identity politics. By the actual definition of the word, the Obama presidency absolutely is post-racialist. In mainstream American media and politics it was argued and believed, right through the 1970s and even, in some quarters, to this very day, that Blacks lack the intellectual capabilities to lead. African American leaders from Frederick Douglas onward have struggled against this racial identification. Obama’s presidency proves that a majority of Americans do not agree. In that sense he is a “post-racialist” president.

What Steele is trying to say is that Obama’s mixed race background, removed from the identity struggles of the civil rights movement and the counter-culture revolution, was supposed to move us beyond race based identity politics. Indeed, he is correct insofar as Mr. Obama declared himself to represent a generation after the baby boom and therefore ready to move beyond the so-called struggles of the sixties (Obama and I are both technically baby-boomers, but so late that we are more akin to Generation X). But the idea that his campaign was not on some level about race ignores the fact that a majority of whites voted against him. It also ignores the celebrations that occurred after his election, both among African Americans and among liberal whites who saw this as a step to that post-racialist world Steele seems to think Obama represents. Those celebrations in Chicago and Atlanta on election night, the number of African Americans on the mall at his inauguration, the almost tearful editorials about how impossible it would have been to believe, just two years ago, that America would have a black president, in fact show the opposite: they show that the Obama candidacy was all about race. My African American students up in Harlem never had any illusions about that: they supported Obama because he was black. End of statement. And, I guarantee, some white people voted for Obama, if not because of his race, then gleeful that he might somehow give them absolution for the oppression of blacks, the benefits of which they have reaped (my own vote for him was certainly racially tinged: I would have voted for any of the democrats over McCain, but with Obama was the added satisfaction that it would piss off David Duke and Rush Limbaugh). Far from indicating that we have some how moved into a “post-racialist” society, the Obama presidency has proved that race still matters.

Steele shows that race, or at least racial struggle, also matters, because apparently, in Steele’s world, anybody who recognizes, admits, or struggles to amend the injustices of the past is playing identity politics and therefore should be dismissed. Fine. He’s made his career out of being one of the few black voices who agrees with the right, kind of like Clarence Thomas or Clyde on Doonesbury. Of the nomination of Judge Sotomayor he says “The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit.” First of all, he is an idiot if he doesn’t think that politics play a part in Supreme Court nominations. If they didn’t we would not have five Catholics on the bench, and the 2000 election would not have been decided by the 5-4 majority of conservative vs. liberal justices (as Dershowitz noted speaking of Bush v. Gore “[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.”) But this isn’t an “everyone does it” defense.

That Obama nominated someone who will help with the Latino vote is true, but he also nominated someone who is unassailable by anyone who wants to attract the Latino vote. Knowing that the Republicans were primed to play politics with the nomination and try to block it no matter whom he nominated, Obama trumped them by nominating someone they could not oppose, a moderate jurist with seventeen years of experience who is also Latina, meaning any attack on her would alienate what is being touted as the most important voting block in the next several election cycles. In a way Steele doesn’t want to admit, the idea behind Sotomayor’s nomination has far less to do with identity politics than it does with politics.

And Politics obviously plays a part in Steele’s opinion too. Like all of the righty talking heads he was going to oppose whomever Obama nominated.

Steele implies two things throughout his article in addition to the direct statement that Obama is somehow expected to be “post-racialist”. The first is that Sotomayor is unfit for the bench because she plays racial politics with her decisions. The second is the implication that her promotion has nothing to do with merit. Both of these are incorrect, and since it is obvious that they are incorrect to those who have studied her career, the only conclusion I can come to is that Steele is deliberately obfuscating the truth.

Later, steel writes “Throughout her career Judge Sotomayor has demonstrated a Hispanic chauvinism so extreme that it sometimes crosses into outright claims of racial supremacy, as in 2001 when she said in a lecture at the University of California, Berkeley, ‘a wise Latina woman . . . would more often than not reach a better conclusion [as a judge] than a white male.’” This is a carefully constructed sentence on Steele’s part, one that shows an Orwellian mastery of doublespeak. The “wise Latina woman” statement has been hashed and parsed again and again. I don’t find it particularly racist, and taken in context it doesn’t’ offend this old white guy in the least. It was simply a statement of pride in herself. We hypocritically call America tells people that they should be proud of their heritage, and then when they express pride in their heritage we condemn them as racists. But that can sound racist to many people, especially people already suspicious of ethnic pride and see it as a form of identity politics, so Steele uses it to bolster the first part of his statement: “Throughout her career Judge Sotomayor has demonstrated a Hispanic chauvinism so extreme…” Remove the word “so” from here, and say instead that ‘throuhout her career Judge Sotomayor has demonstrated extreme Hispanic chauvinism.” This is what Steele is saying, and this is a bald-faced lie. There is nothing in her career, at least not as a judge (I haven’t studied her career as a prosecutor) which indicates any form of chauvinism, so Steele uses the now infamous Berkeley quote, taken out of context, to imply that there is. But the quote has little if anything to do with her career.

It was from a speech she made to a symposium in Berkeley called “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.” Steele leaves off the last part of the sentence, “who hasn’t lived that life.” She was actually commenting on a statement often attributed to Sandra Day O’Connor. Here is the whole quote: “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.” It is worth pointing out that O’Connor often broke with her conservative colleagues on gender issues, even voting to uphold Roe v. Wade, even though she was otherwise reliably conservative. This tends to be true of most women on the bench.

The speech obviously provides a lot of ammo for the conservatives who think there is no such thing as ethnic experience in this country (something only the majority can believe). Sotomayor was treading dangerous ground from the beginning, when she said “I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.” Since conservatives believe that that personal identity should have no influence on judicial decisions (our greatest jurist, Thurgood Marshal argued exactly the opposite) I’m surprised this statement hasn’t made the rounds of the nattering class. Sotomayor’s point is that everybody brings their experiences to the table, and that diversity is a good thing. Even Scalia noted this in an oblique way when he acknowledged the power with which Marshal spoke of race, and how heavily his words were weighed, when cases involving discrimination came before the court.

Sotomayor even addressed the tension between personal identity and politics in the speech, discussing the conflict between the “melting pot vs the salad bowl”: “America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud.” There is so much fodder for the right’s argument against Sotomayor that I’m surprised more from the speech hasn’t been published outside the rabid tabloids and the reactionary blogs, because she says outright that her experiences do affect her decisions. Perhaps it’s because what the Berkeley speech amounts to is not only a compelling argument as to why that should be so, but also demonstrates concrete examples as to how white male often let their own politics, identity, gender and experiences, color their decisions. Or it might be that they’d have to acknowledge that Sotomayor said this:

“Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”

In other words, we must be thoughtful jurists. This is the rhetorical petard on which they hope to hoist judge Sotomayor.

Now, perhaps I don’t find this bothersome because I believe that every judge brings his or her own experiences and biases to the table, and that’s why we have nine of them instead of just one. But maybe I’m too cynical. But I think that the tempest over this quote is in a very small teapot. Steele probably doesn’t like it because it was made at Berkeley and he works at Stanford.

Steels is a liar. As the New York Times noted in a graph on Saturday’s Op-Ed page, in 96 cases pertaining to race, Judge Sotomayor rejected the claims of discrimination 78 times, agreed with it only ten times (eight cases involved other types of claims). Furthermore, of the ten decisions that found discrimination, nine of them were unanimous according to the Daily Dish. In other words, Sotomayor’s record does not indicate that she decides cases based on identity politics or upon her own racial experience. In the Ricci case, which is the one that the republicans are hanging their hat on (it is before the Supreme Court right now, and will probably be overturned), she was part of a unanimous summary judgment. She didn’t even write an opinion. The full court upheld her. Where is the radical racial politics she is supposed to be foisting upon us? I will tell you: nowhere. This whole op-ed is a pile of lies designed to slander a well qualified jurist.

In Shelby Steele’s world a person who has 17 years on the bench (more than any of the current justices had when they were appointed) who is rarely overturned on appeal, who has no record of trying to impose racial politics on her decisions, and who often votes in agreement with republican appointees, is radical, racist, and unqualified.

Maybe the opposition from Steele exists because he knows that she is right—that every judge decides cases based on their own experiences to some extent, and that she represents a threat to the white hegemonic power structure. Maybe its because, unlike her record on race, she’s got a very strong pro-environment record. Often the objections on social issues are used to mask an economic argument.

Whatever the case why don’t we call this what it is: an attempt by a black conservative intellectual to torpedo the nomination of a supremely qualified Latina jurist, by any means necessary.



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