July 12, 2009

The debate over Sonia Sotomayor‘s nomination to the Supreme Court has generated millions of words but nearly all of it comes down to two opposing positions. On one side are defenders of legal neutrality”€”it’s the law, not whose ox gets gored, and Sotomayor’s open embrace of group identity politics is incompatible with the rule of law. On the other side are her defenders who insist that this charge is just craven politics. Those who openly acknowledge her ideological leanings say all law is inherently ideologically biased, all judges are captives of their race, gender, social class or whatever, and to insist that law can be politically neutral is disingenuous selective outrage. From this perspective, her empathy with the oppressed, especially people of color and women, is a politically necessary balance to all the affluent white males who currently rule while hiding behind the black robe of legal objectivity.

This debate neglects whether the Sotomayor agenda, everything from naked group preferences (as in the Ricci case) to subtly tilting the scales to the economically disadvantaged, is indeed, as a matter of empirical fact, a boon to the intended beneficiaries. This is hardly self-evident; the political landscape abounds with ruinous disappointments (the classic textbook example is Progressive era economic regulation to help consumers that was instead twisted to sustain monopolies). There is certainly no ironclad guarantee that newly promoted black New Haven firefighters would materially gain beyond their bigger paycheck. This is, literally, only Sotomayor’s personal opinion. Conceivably, these beneficiaries might kill themselves and co-workers if they are unable to understand complicated equipment manuals, try to fight fires with the wrong chemicals, or fail to communicate precisely. Imagine instead if these beneficiaries were “€œpilots”€ unable to pass “€œunfair”€ FAA standards. Who would want to live in a town where this Keystone Cop fire department threatened life and limb?  

Consumer protection legislation is the place to begin. These laws openly acknowledge that the very same people Sotomayor wishes to help, cannot be trusted to choose wisely. Absent government intervention, it is assumed that they will screw up: buy unsafe household products, agree to usurious loans, and rely on medical quackery. And, of the utmost importance, all these laws and untold bureaucratic enforcement has had mixed results. The current sub-prime mortgage crisis and bankruptcy-inducing crushing levels of credit card debt perfectly illustrate these judgmental deficiencies.

Life in the political marketplace can, however, be far more treacherous. The First Amendment expressly forbids banning “€œunsafe”€ political views, and proponents of the most crackpot, wacky nostrums can feely troll for adherents. Nor are advocacy groups responsible for insuring that their “€œcalls for action”€ will necessarily benefit supporters. There is no “€œtruth in advertising”€ in politics let alone contractual obligations to deliver as promised. The NAACP has for decades demanded racial integration of public schools as the panacea for black academic insufficiency and it continues to soldier on despite copious hard empirical evidence of failure. No political FDA will announce, “€œMandatory school busing recalled as injurious to learning.”€  Compare a drug company trying to market a cure for athlete’s foot versus what a political advocacy group might hawk. The pharmaceutical company must spend millions demonstrating drug effectiveness and will be legally liable if anything goes awry. By contrast, any top-of-the-head idea, especially one that generates publicity and funds, can energize an advocacy group and even repeated disaster may fail to put it out of business. That advocacy groups (e.g., NAACP, the Urban League, CORE, etc) often compete with each other for the same clientele may well push their agendas toward market-driven slogans, less carefully developed technically sound solutions. A lack of realism may even be an advantage when seeking fresh recruits”€”what wonkish civil rights group wants to compete with a demagogue like Al Sharpton when mobilizing the naïve?  Gresham’s Law undoubtedly applies here”€”pie-in-the-sky will always drive out modest realism and, no doubt, the less educated a constituency, the greater the Law’s applicability.     

Further add the inability of Sotomayor’s “€œconstituency”€ to calculate accurately costs and benefits (typically a defining trait among the economically disadvantaged). This might be called the lottery problem”€” wildly exaggerating benefits (a pay-off of millions) while minimizing costs, especially opportunity costs. Calculating lottery odds, however, is a snap compared to assessing far more complicated policies such as affirmative action or standing to sue. Consider Sotomayor penchant for using race/ethnicity, not merit, in hiring. Initially, at least for those certified victims, everything appears all gain, no pain”€”being black or Hispanic wins the job. In an instant, all the liabilities of inadequate talent, bad work habits, poor interviewing skills and other supposed ruses to hinder the disadvantaged are mitigated by judicial decree. Judicial rescues, provided one has an empathetic judge, can even apply over an entire lifetime”€”if “€œunfairly”€ suspended from school, go to court; if denied a HS diploma, go to court; if denied a job, go to court; if one is failed to be promoted, go to court, can”€™t make one’s car payments, go to court, and on and on. Who could resist a lifetime of benefits simply by being born with the right traits?

Alas, fans of this seemingly simple low-cost rescue strategy seldom recognize that each of these government-commanded benefits arrives with tangible (though obscured) costs that frequently outweigh benefits. In a nutshell, one’s price is raised without necessarily making one a more productive worker. Why should an employer move to an areas teeming with poorly educated African Americans inclined to sue if they fail the test for entry level jobs? Better to locate amidst fewer protected minorities, outsource the job overseas, automate the positions or even hire independent contractors exempted from employment discrimination laws. Actually, the most cost-effective solution may be to substitute illegal Mexicans for blacks since they are unlikely to sue or otherwise take advantage of “€œempathetic”€ judges. Does a legally imposed right to a high school diploma guarantee the knowledge and traits traditionally associated with the degree? Hardly. Under-the-gun, school administrators will merely dumb down tests, ignore chronic absences and cheating, and award empty calorie sheepskins rather than battle judges who sympathize with struggling students. Meanwhile, potential employers will quickly see through the charade and perhaps substitute a 15 minute literacy test leaving these new “€œgraduates”€ unemployed. (And recall the possibility of self-immolation mentioned above.)

To appreciate this “€œkilling with kindness”€ strategy, imagine that instead of a wise Latina judge prone to putting a thumb on the scales of justice, Obama appoints only dour males favoring old-fashioned Puritan-style “€œwhite”€ virtues. When African Americans file suit that their children are being disproportionally suspended from school, his response is that the plain-to-see rules are the same for all students, and the best way to avoid suspension is to behave. If confronted with an NAACP lawyer demanding diplomas for those who flunk the high school exit exam, his predictable response is “€œstudy, don”€™t demonstrate.”€ If the plaintiff repeatedly fails the firefighter exam, the response is, “€œHave you considered a more suitable line of work?”€ Needless to say, this sound advice would be politically outrageous, perhaps precipitating a riot, yet such tough love is sound advice. Sonia Sotomayor and similar compassion champions are the top executives of the Good Intentions Paving Company.

This hardly ends the perniciousness of this “€œempathy”€ approach when meting out justice. Far more dangerous, but seldom ever realized, is the fate awaiting minorities when the judicial system becomes a mini-legislature where appointees become legitimate advocates from group-based interests. So, instead of federal courts where judges are sworn to uphold the law, however imperfectly due to alleged personal biases, courts evolve into medieval-like corporatist estates general where group representatives carve up the pie. Is this what minorities want? Do they really prefer legal arrangements where, for example, nine white male Supreme Court judges unanimously uphold state-imposed racial segregation since “€œas whites”€ they intuitively grasp the social awkwardness of whites legally coerced to associate with blacks in the same classroom? Surely Sotomayor and her allies realize that the “€œdon”€™t forget your own people”€ argument cuts both ways, and since judicial decisions ultimately depend on majorities, this help-your-own approach insures permanent defeat. Escaping this bind requires that at least some majority group members (whites) behave as group traitors, that is, middle-class white judges suspend their “€œnatural”€ empathy to help the less fortunate. One can only imagine how this might be established in a Senate confirmation.

These “€œempathetic”€ rescues are sure-fire recipes for dependency on big government. In a phrase: judicial bailouts. Envision a society where securing the right judicial outcome, even by a one vote majority, is akin to hitting a million dollar lottery? (And a reversal may mean losing it all).  Why should a “€œdisadvantaged minority”€ struggle with organic chemistry if, hopefully, some forthcoming slender judicial majority might decide that MD degrees should be demographically proportional? Career lawbreakers might even be liberated when two of three Appellate judges who grew up among criminals or served some time decide that certain crimes are culturally defined, just the dominate hierarchy imposing its values on a persecuted minority. To be blunt, help via empathetic judges easily deepens the political dependency that already plagues blacks and Hispanics.

For those uncomfortable with Sotomayor, the public debate requires shifting. The critical point is that her “€œcompassionate”€ agenda may, on balance, hurt intended beneficiaries. The distinction is between what is claimed to help versus what shall, as a matter of demonstrable fact, help. What should be stressed is that all benefits have costs, even if ignored, and they may be a bad deal despite their allure. Tough love may be a superior strategy. Clarence Thomas is the real friend of the downtrodden. Sotomayor’s Ricci opinion sends a terrible message”€”be happy, don”€™t study, just litigate”€”to those seeking better jobs. Perhaps somebody should compile accounts of what happens to inept firefighters in over their head. Ironically, this counsel”€”be careful for what you wish for”€”is hardly speculative. Recall the damage done to the economically disadvantaged by such “€œhelpful”€ court-imposed policies as expanded welfare eligibility, softer law enforcement standards and expanded rights for students. In each instance, recipients of this “€œgenerosity”€ paid a heavy price, many now have buyer’s remorse, so to invoke an old but still relevant cliché, with friends like Sonia Sotomayor, who needs enemies?                       


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