Issues of racial, cultural, and gender bias have been raised by the nomination of Judge Sonia Sotomayor to serve on the U.S. Supreme Court, because of things she said to an ethnic advocacy group and a controversial decision she made in an affirmative action case. This essay has three parts: (1) What did Sotomayor say, and what did she mean? (2) Is bias endemic to the human condition and is objectivity therefore impossible? (3) Sotomayor on stilts in Hawaii: A discussion of racial politics in Hawaii. Blatant public assertions of racial entitlement based on plain-spoken claims of racial superiority have become commonplace and widely accepted, and now are used to support demands for establishment of a race-based sovereign government and the partitioning of the state.
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(1) What did Sotomayor say, and what did she mean?
By now we're all familiar with the firestorm of controversy raised by comments made by Judge Sonia Sotomayor, who was nominated by President Obama to a seat on the Supreme Court. The sentence causing the greatest uproar is "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." The most damning interpretation is that Sotomayor believes that Latina women have richer experiences and superior reasoning abilities compared with white men. Ouch! Isn't that racist and sexist? The most benign interpretation is that Sotomayor believes that women and Hispanics bring to the judiciary unique and valuable ways of comprehending issues because of their life experiences. But doesn't that imply that women and Hispanics are necessary in the judiciary because men and Caucasians are incapable of understanding life situations or reasoning empathetically? Ouch! Still racist and sexist.
Sotomayor's sentence immediately before the controversial one has not gotten much attention, but is also disputable and deserves close scrutiny: "[T]here can never be a universal definition of wise." In context: "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 also not so sure that I agree with the statement ... [because] there can never be a universal definition of wise." There are at least two interpretations of this.
Does she mean that there is no such thing as wisdom, or Absolute Truth? Every major religion would deny that. Our Declaration of Independence asserts as absolute truth that all men [people] are created equal and are endowed by their Creator with certain unalienable rights.
Or perhaps Sotomayor merely means that there can never be universal agreement describing wisdom or truth? That seems more benign; but acquiescing to such a belief would mean giving up the most cherished hope for true justice, symbolized by a blindfolded lady holding a balance scale.
In the context of her whole commentary, Sotomayor seems to be saying that there is no such thing as truth or wisdom, and that each demographic group needs a partisan warrior to represent its particular wishes. Not only must lawyers be zealous advocates for their clients, but judges must also be zealous advocates for their demographic groups. Lady Justice is never blind or even-handed; she is only a skillful negotiator. Perhaps she even peeks out from behind her blindfold, puts her thumb on the scale, and uses that sword in her hand to smite the folks for whom she has no empathy.
Sotomayor's final sentence at the end of the same commentary also deserves attention: "I am delighted to have been here tonight and extend once again my deepest gratitude to all of you for listening and letting me share my reflections on being a Latina voice on the bench." She clearly identifies herself as a racial partisan -- "A Latina voice on the bench."
To be fair, she was speaking to a Hispanic racial activist group (La Raza) about the struggles and accomplishments of minority groups in general; and women and Hispanics in particular. She wanted to express pride in her own ethnic heritage and to encourage her listeners to do likewise. But there's a thin line between pride in one's own heritage, and prejudice against others. The firestorm of controversy in this case arises partly because thoughtful people worry that Sotomayor has crossed that line. For a general discussion see "Pride and Prejudice -- What It Means To Be Proud of a Person, Group, Nation, or Race; Racial Profiling, Racial Prejudice, and Racial Supremacy" at
http://tinyurl.com/36fwj
Sotomayor's speech was given as the Judge Mario G. Olmos Memorial Lecture at the University of California, Berkeley, School of Law and was published in Berkeley La Raza Law Journal, Vol. 87, Spring 2002, pp. 87 - 93. It can be downloaded in pdf format at:
http://tinyurl.com/rdlx4j
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(2) Is bias endemic to the human condition? Is objectivity therefore impossible?
At a minimum Sotomayor was saying that women and ethnic minorities have experiences different from white men, and therefore (allegedly) have greater understanding (dare we say empathy?) for their difficulties; and hence will make more well-informed rulings in lawsuits. Perhaps most Americans go along with that view, regarding it as a matter of common sense.
But such a view should not go unchallenged, because it lays a presumption that no judge can possibly be fair and even-handed when plaintiff, defendant, and/or judge have different backgrounds. This view elevates and celebrates identity politics, according to which every person must be classified by race, gender, religion, economic status, etc.; and those classifications are given far greater importance than individual ability and effort. This view leads people to despair of ever being treated fairly. It implies that justice can be achieved only when each group is represented in the executive, legislative, and judicial branches of government in proportion to its percentage of population. This view implies that the judiciary should be representational in the same way as the legislature, because judges will be making law based on personal views rather than interpreting how laws made by others must be applied to facts by way of logical deduction. Should a judge merely call the balls and strikes, or should a judge shrink the strike zone whenever the batter is someone for whom she feels empathy?
Each of us feels better when we see someone who looks like us participating in making decisions for us. But individuals are unique. What they LOOK like is not necessarily what they ARE like.
Just because someone is black does not mean his views usually coincide with the views of a majority of black people (or at least the views of the loudest activist leaders). For example, black activists have been known to say that the politically conservative Justice Clarence Thomas is not really black (despite his outward appearance and life experiences). His views don't correspond with the views leftists ascribe to blacks as a group, so the activists say he's "not really black" and they reject him as the representative for the "black seat" on the Court.
Before the coming of Barack Obama, President Clinton was often called America's first black President because his views corresponded to the black political agenda (after his term ended he even opened an office in Harlem so he could hang with the peeps in the hood). During the early stages of the Democrat Presidential primaries in 2008, some activists spread the word that Barack Obama is "not black enough" both because he is genetically 50% Caucasian and because he is not descended from American slaves (his only black heritage comes from a father who was not an American).
In Hawaii Sandra Puanani Burgess was publicly called non-Hawaiian by "Frenchy" DeSoto (commonly called "the mother of OHA") because Ms. Burgess opposes race-based government handouts and political sovereignty for ethnic Hawaiians. Mrs. Burgess has 25% native blood quantum, which is probably higher than the average blood quantum of ethnic Hawaiians, for whom one drop of native blood is sufficient to qualify for membership in a future tribe under the Akaka bill. Nevertheless, DeSoto claims to speak on behalf of "the lahui" (la raza) while Burgess gets excommunicated for defending equality under the law.
It is silly to insist there must be an African-American on the Supreme Court, and at least one woman (there really should be 5 women Justices for proportional representation), and a Hispanic, etc. But advocates for "social justice" somehow feel comforted to imagine a Congress or Supreme Court that "looks like America." What they really want is partisans for race, gender or social class who will fight for the vested interests of groups. This concept of the Court is alien to the traditional expectation of impartiality as the guarantor of equal justice under the law. The traditional view acknowledges that every judge does have personal bias acquired from life experiences, but such biases are handicaps to be addressed and overcome in a quest for impartial justice. The view gaining ground with Sotomayor's nomination acknowledges that every judge does have personal bias acquired from life experiences, and therefore we must embrace these biases as doorways to empathy.
For several decades it has become popular in academic circles to deny the possibility of being fair or objective. This claim is made in all fields of study including law, journalism, economics, history, biography, and even science and mathematics (put "ethnomath" into Google and be amazed).
Consider journalism as an example. Because of the (alleged) fact that objectivity is impossible, students are taught to freely embrace their biases and engage in advocacy journalism -- choose to report on stories that will illustrate their views while ignoring conflicting stories; present one side enthusiastically while giving only token or straw-man acknowledgment of the opposite side. According to such a policy, the way to be fair or "objective" is not to ask an individual reporter to be objective (impossible), or to conceal his biases (dishonest). Instead, hire reporters with different views so that overall reporting will be balanced and thereby the newspaper can achieve some degree of fairness. The trouble is that most newspapers and other media lean heavily toward the political left, so it's hard to find opposing views on the staff. Most editors themselves feel no desire to seek balance, especially on issues where the publisher, on behalf of the owner, has editorialized strongly and repeatedly on one side of an issue.
For two examples of outrageous bias in "news reporting" in Hawaii, see:
"Forced assimilation may hurt Hawaiians" -- A typical combination of junk history and junk science fueling the Hawaiian grievance industry
http://tinyurl.com/8fz9q
and
"The Goebbels Award For Outstanding Use of Media for Propaganda Disguised As Fact -- Honolulu Star-Bulletin Wednesday April 23 2008, page 2 (The newspaper falsely stated that President Grover Cleveland signed a proclamation in 1894 that set April 30th as a day of prayer and remembrance for Queen Liliuokalani and the overthrown monarchy of Hawaii; and the newspaper refused to publish a correction despite being given proof of falsehood)."
http://tinyurl.com/44ls4j
Because humans are imperfect and total objectivity is impossible in actual practice, it can be expected that a judge will sometimes rule the wrong way. But that's why there are appeals courts. That's why every U.S. circuit court of appeals uses panels of three judges. If a case is especially difficult or controversial, the decision by a three-judge panel can then be reconsidered by an "en banc" panel consisting of all the judges in that court who choose to participate (a recent Hawaii Kamehameha Schools desegregation case was decided by a 15-judge panel of the 9th Circuit Court of Appeals, who made a ruling by an 8-7 majority). In rare cases a circuit court decision is reconsidered by the Supreme Court, where all 9 Justices hear every case unless a Justice admits to being biased or having a prior interest in the outcome and therefore recuses himself.
Does Absolute Truth exist? Plato thought so. Every major religion says so. But most people today deny it in theory and especially in everyday life. Moral relativism is rampant. It seems now to be generally accepted that even if there is such a thing as objective truth, that makes no practical difference in everyday life. Either the truth is too remote to be knowable by mere humans, or if known it cannot be expressed accurately through words.
But wait! Absolute Truth does exist, and can be known by people who are wise. Although they cannot express it through words, they can nevertheless make decisions objectively, and those decisions rise above ethnic and gender differences precisely because they are based on something unchanging and accessible to all. Epistemological analysis by Immanuel Kant and the existentialists concludes that although Absolute Truth cannot be spoken or written, it can be expressed accurately through the arts and through moral choices made in everyday life. Therefore wise judges can hand down righteous decisions in a changing world, backed by unchanging principles. See Kenneth R. Conklin, "Knowledge, Proof, and Ineffability in Teaching," Educational Theory, XXIV, 1 (Winter, 1974), pp. 61-67 at
http://tinyurl.com/4k7vyh
The traditional belief that judges should weigh the facts and interpret the laws impartially is consistent with Plato's belief that philosopher-kings would know the Absolute Truth and would feel compelled to apply it to practical situations without distortion. The role of the Constitution in American jurisprudence has traditionally been comparable to the role of the World of the Forms in Plato's metaphysics -- it is something which is given from on high and must be respected. Philosopher-kings would never dare to twist it. They would not want to try to twist it, because the unity of Goodness, Truth, and Beauty causes someone who understands Truth to see its Beauty and thereby to undergo a spiritual conversion from which moral righteousness flows as a spontaneous outpouring spurred by feelings of awe and reverence.
Is the Constitution a "living document"? Conservatives or "originalists" say it lives in the sense that its provisions come alive through every decision in a changing world, so that property rights described in a document written 222 years ago can be applied to new technologies. The Constitution also lives because it can be changed, not by individual judges making law from the bench but only through a specified process of amendment. By contrast, today's relativism, or conventionalism, is a belief that truth is whatever people say it is. Truth is created from moment to moment as we move through life, and the Constitution is living because it means whatever currently living judges choose to say it means. But under this conventionalist theory the Constitution really has no objective meaning. Thus it's important for the judiciary to be representative -- to "look like America" just as the legislature should look like America.
The confirmation hearings for Sonia Sotomayor will test whether the Senate now still accepts the traditional concept that the Constitution and precedent decisions must be viewed as master with judges as its servants; or whether the Senate now authorizes judges to treat the Constitution as subordinate to their own biased wishes and feelings of empathy. Must we then use identity politics to balkanize the Supreme Court so that the demographics of the Justices match the demographics of the nation?
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(3) Sotomayor on stilts in Hawaii, where assertions of racial entitlement and superiority have become so widely accepted that politicians and media push for Congress to pass the Akaka bill to create a race-based sovereign government and to partition the state
Racial separatism runs rampant in Hawaii. Since 1978 Hawaii has established two branches of state government using tax dollars and income from government lands for the exclusive benefit of ethnic Hawaiians: Office of Hawaiian Affairs (OHA) and Department of Hawaiian Homelands (DHHL). A private trust, the Bishop Estate, was created in 1884 on the death of Princess Bernice Pauahi Bishop, to establish a school system, Kamehameha Schools, now worth between $9-15 Billion. By decision of its trustees, not required by any trust document, it serves only ethnic Hawaiians. See
http://tinyurl.com/e3mlm
According to OHA and the Akaka bill there are over 160 federally funded programs racially exclusionary for ethnic Hawaiians. By agreement of the state legislature and the U.S. Navy, one of Hawaii's eight major islands (Kaho'olawe) has been set aside to be transferred to the ethnic Hawaiian "tribe" as soon as the Akaka bill passes.
Hawaiian racial separatism is supported by a religious theory which describes anyone with Hawaiian native blood as a child of the gods and a brother to the islands in a way that makes anyone lacking a drop of the magic blood forever an outsider. According to this theory, the gods mated and gave birth to the Hawaiian islands as living beings immersed in the amniotic fluid of the salty sea. Thus all parts of every island, and the oceans surrounding them, are sacred -- running 1200 miles long from the underwater volcano Lo'ihi east of Hawaii Island all the way to Kure Atoll. The gods mated again, giving birth to a stillborn infant whose body was buried, which yielded the taro plant (which is sacred). The gods mated again, giving birth to a perfect baby boy named Haloa, who is the primordial ancestor from whom all ethnic Hawaiians are descended. Thus there is a genealogical family relationship among the gods, the islands, and all humans who have at least one drop of Hawaiian native blood.
Ethnic Hawaiians are connected to the gods through the fontanel (head); connected to their ancestors through the navel (remnant of the umbilical cord); connected to their descendants through their genitals; and connected to their elder brothers the islands through their feet. Thus each person has the gods above him, his ancestors behind him, his descendants in front of him, and his elder brothers the taro and the islands under him, at every moment; providing support and imposing responsibilities. Ethnic Hawaiian activists use this commonly-held religious metaphor to assert they have a duty to care for the land and a corresponding privilege to exercise political control over who lives on it and how it is used.
However beautiful this religious theory may be as a metaphor, it can be dangerous in the practical world. Politically it can best be described as Hawaiian religious fascism, because it provides a basis for claiming that ethnic Hawaiians are biologically and spiritually entitled to exercise racial supremacy over land-use policy and over the political decision-making process for governing Hawaii. For further discussion of Hawaiian religious fascism, and the zealotry it generates, see
http://tinyurl.com/2n4hy
This religious theory was repeatedly beamed into living rooms throughout Hawaii in numerous TV commercials asking ethnic Hawaiians to sign up on a racial registry that now has over 105,000 names and is likely to be used as an initial membership roll for a phony Indian tribe if the Akaka bill passes.
Here's what Lilikala Kame'eleihiwa said (former chair and still professor of Hawaiian Studies): ""WE who descend from Haloa. WE who have lived here for one hundred generations. We are at a critical moment in our history. We need to form a new Hawaiian government. We need to kau inoa. We need to sign our names and to declare ourselves willing citizens. The time is now. I ask you PLEASE -- kau inoa NOW. For the sake of our grandchildren and the next one hundred generations. O wau no o Lilikala Kame'eleihiwa, a ua KAU ko'u inoa." [the closing sentence translates as: I am indeed Lilikala Kame'eleihiwa, and I have PLACED my name.] The first sentence calls upon ethnic Hawaiians as a group by addressing them as "we who descend from Haloa." Descent from Haloa is the one and only thing that all ethnic Hawaiians share in common, regardless of how little native blood they have or how little of the culture they know and practice. It is the one and only thing that separates everyone else from ethnic Hawaiians, and keeps them forever identified as outsiders, strangers, settlers, mere guests in the Hawaiian ancestral homeland regardless of how many generations they have lived here.
Here's what "native practitioner" Butch Helemano said in his TV commercial: "Well basically, you know, being Hawaiian allows me to look at the world with a different perspective than others that aren't. In other words we can look at the sea and look at it as a place of sacredness and look at the sky as a place that we hear and look for messages so don't forget who we are and your culture cuz that's the most important thing here as a Native Hawaiian. Kau Inoa is a way for Native Hawaiians to come together as one. To be recognized in the community and in the world as the nation who is rising like the steam rises in the volcano. E aloha mai. O wau Helemano and I placed my name with Kau Inoa." Helemano is saying that a wise ethnic Hawaiian will always be able to see and understand spiritual messages in the environment, which a wise non-Hawaiian cannot see even though he was born and raised in that environment and earns his living from it daily through fishing or farming.
For more transcripts and analyses of similar commercials, see
http://tinyurl.com/22ekaa
What Judge Sotomayor said about Latina women having superior abilities to white men pales in comparison with what Kame'eleihiwa, Helemano, and other Hawaiian activists have said. Trisha Kehaulani Watson, Ph.D. and J.D., is a featured blogger on the website of the Honolulu Advertiser, Hawaii's largest-circulation daily newspaper. Toward the end of May 2009 she published a series of essays on racial identity and political entitlement. She said "I see the world as being binary: Hawai`i (Hawaiians or Native Hawaiians) and haole (non-Hawaiians)" She described a hierarchy of political and economic entitlement where individuals have rights in proportion to their percentage of native blood quantum.
Hawaiian religious fascism is openly taught at all levels of education. The state-centralized public school system mandates a curriculum component of Hawaiian studies at all grade levels K-12, for children of all races. In addition there is a system of more than a dozen "Hawaiian-focus" public charter schools where more than 90% of the children are ethnic Hawaiians and the others have parents sympathetic to the cause. The Hawaiian-focus charter schools openly function like madrassas, teaching a version of history portraying Hawaiians as the victims of American colonial oppression, and providing skills to help them achieve liberation. In effect the state government is like a hapless caterpillar hosting a parasitic wasp, who eats the caterpillar from inside until it is ready to hatch and fly free. There is an additional separate system from preschool through 12th grade for children in the Hawaiian language immersion program whose purpose is to rejuvenate Hawaiian language by raising up a generation who speak Hawaiian as fluently as they speak English; thus using Hawaiian language as a vehicle for ethnic nation-building at public expense. The University of Hawaii and its satellite community colleges have Hawaiian Studies departments serving as propaganda factories not only for students majoring in that field but also providing electives for students of political science, history, anthropology, law, etc. See
http://tinyurl.com/2h6uo
and
http://tinyurl.com/3rlyk
There is an amazing breadth and depth of academic writing providing scholarly justifications for Hawaiian religious fascism, racial separatism, and ethnic nationalism. What Sonia Sotomayor said in her controversial commentary for La Raza is very mild by comparison to the blatant racism in these published writings. Anyone who feels uneasy about putting Sotomayor on the Supreme Court must surely make strenuous objection to the Akaka bill. The present essay now concludes with a brief exposee of some of these academic writings.
"Polynesian voyaging" is a wonderful cultural skill, and we are blessed that it has been revived. However, the sovereignty zealots have turned it into an example of racism with claims of racial memory justifying the concept that all the leaders must be people who have a drop of the magic blood. Are the Polynesian voyaging canoes, and their journeys, truly Polynesian? Is there such a thing as "deep culture" or "racial memory" which allows long forgotten skills and ceremonies to be revived with authenticity? Is the Polynesian Voyaging Society primarily a cultural organization focused on reviving an ancient skill, or is it primarily a political organization focused on ethnic pride, ethnic nation-building, and related public relations campaigns to solicit popular support for Hawaiian sovereignty? How important is it for PVS and the voyages it sponsors to be dominated by ethnic Hawaiians? What struggles were there over the role of people with no Hawaiian native ancestry in the founding of PVS and the voyaging trips of its canoes? Surprising as it may seem, these questions were author Ben Finney's primary focus in a "popular book" intended for a general audience. Finney provides considerable depth about cultural authenticity and racial memory, including numerous footnotes to valuable resources on that topic. See: ""Polynesian" Voyaging -- Political Agenda, Ethnic Dominance, Cultural Authenticity, and Blood Nationalism. An extended book review of Ben Finney, "Sailing in the Wake of the Ancestors: Reviving Polynesian Voyaging"
http://tinyurl.com/5hjah
Hawaiian Epistemology and Education -- Review of a Ph.D. dissertation and book claiming that anyone with a drop of Hawaiian native blood has genetically and culturally encoded unique ways of knowing and learning; and therefore ethnic Hawaiian children (and other ethnic minorities to a lesser degree) have special needs for uniquely tailored curriculum and instructional methods.
http://tinyurl.com/5lu9r
Part of a claim to be indigenous includes a claim that the group has greater rights than the individual. The theory is that all persons sharing the same ancestry as members of an indigenous group have certain tribal rights and responsibilities carried through their veins in their blood. Those rights and responsibilibilities are both political and spiritual. They include carrying the weight as well as the wisdom of all previous and future generations. When an indigenous person speaks about sacred matters, his ancestors from thousands of generations are listening, providing guidance, and passing judgment; and his words have an effect on thousands of future generations.
Along with the concept of group rights and responsibilities is the concept of a "deep culture." It is believed that the accumulated tribal knowledge and wisdom of all previous generations is carried through the blood, so that even if someone has only a small percentage of blood quantum from a particular tribe, he nevertheless has a full measure of the tribal heritage. Part of that heritage is a set of values for living, and a set of ways of learning and knowing. Part of that heritage is a set of cultural symbols, stories, and myths.
See "Indigenous Intellectual Property Rights -- The General Theory, and Why It Does Not Apply in Hawaii"
http://tinyurl.com/2b77k
See also "Political claims to collective cultural 'Intellectual property' rights (especially regarding spiritual symbols, ways of knowing, and the spiritual/cultural interpretation of political leadership"
http://tinyurl.com/3y5t9
In the 2007 Hawaii Legislature there was a bill to place a moratorium on bioprospecting and to establish a commission to license and regulate it. Ethnic Hawaiians were to be given control of the commission by way of a racial set-aside of a majority of commissioners, on the theory that ethnic Hawaiians are brothers to the land and the land is sacred to them. It was envisioned that regulations would apply to all public and private lands in Hawaii, giving ethnic Hawaiians veto authority over proposed projects and also giving ethnic Hawaiians the revenues generated by licensing. This was based on the theory that both the biota and the ancient knowledge of how to use the biota are the intellectual property of indigenous ethnic Hawaiians. See
http://tinyurl.com/yud9gw
A new book published by the University of Hawaii Press (subsidized by taxpayers) is deeply insulting to Hawaii's people of Asian ancestry. The first insult comes by telling them that they are guilty of collaborating with Caucasians to oppress ethnic Hawaiians. The next insult comes by telling them that even if their families have lived in Hawaii for several generations, they are merely "settlers" in someone else's homeland and they have a duty to abandon their hard-won equal rights in order to accept a position of subservience to ethnic Hawaiians. Perhaps the deepest insult of all is the book's attempt to undermine the patriotism of Asian Americans by telling them they have a moral duty to help Hawaiian sovereignty activists liberate Hawaii from American colonialism and rip the 50th star off the flag. See a major book review of "Asian Settler Colonialism: From Local Governance to the Habits of Everyday Life in Hawai'i" at
http://tinyurl.com/8mkdmj
History of the Hawaiian Government Reorganization bill in the 111th Congress (January 2009 through December 2010). Three matched pairs (companion bills with identical content) of the Akaka bill are active in the 111th Congress. Their dates of introduction and bill numbers are: February 4, 2009, S.381 and H.R.862; March 25, 2009: S.708 and H.R.1711; May 7, 2009: S.1011 and H.R.2314.
http://tinyurl.com/adentr
Why all America should oppose the Akaka bill
http://tinyurl.com/yhhz7o
Major Articles Opposing the Hawaiian Government Reorganization bill (Akaka bill), 2000 to present -- INDEX (hundreds of articles by major commentators in national media)
http://tinyurl.com/5eflp
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