ESSAY: Something that we think still confuses a lot of conservatives is their presumption that leftwing arguments are supposed to be applied evenhandedly. Thus their befuddlement over Trump’s comment about the judge.
When Sonia Sotomayor said that being a “wise Latina” influences her decisions for the better, that—we were told—was not merely nothing to worry about but a sign of her judicial temperament and fitness for the High Court. When Trump says being a Latino will influence this judge’s hearing of his case, he’s Hitler.
There may seem at first glance to be an inconsistency here. But there is a common thread. The left mostly takes for granted, first, that people from certain ethnicities in positions of power will be liberal Democrats and, second, that they will use that power in the interests of their party and co-ethnics. This is a core reason for shouts of “treason!” “Uncle Tom” (or Tomas) and the like. People like Clarence Thomas are offending the left’s whole conception of the moral order. How dare he!
The implicit assumption underlying Sotomayor’s comment and Thomas’ refusal to play to type is that there is a type—an expectation. By virtue of her being a liberal, a Democrat, a woman, and a Latina (wise or otherwise), Sotomayor’s voting pattern on the Court ought to be predictable. As, indeed, it is. So should Thomas’, but he declines to play his assigned role.
The slightly deeper assumption is that this identity-based predictability is necessary, because the institutions and laws as designed will not reliably produce the “correct” outcome. That’s the logic of diversity in a nutshell. If everybody in power strictly followed law and procedure, the good guys—the poor, minorities, women, etc.—would lose a great deal of the time and that would be bad. We need people who will look past the niceties of the rule of law and toward the outcome—the end. The best way to ensure that is “diversity,” i.e., people more loyal to their own party and tribe than to abstractions like the rule of law.
Trump simply took this very same logic and restated it from his own point-of-view—that is, from the point-of-view of a rich, Republican, ostentatiously hyper-American defendant in a lawsuit being litigated in a highly-charged political environment. He knows full well that at least 50% of the country will howl like crazy if he wins this suit. He knows that the judge knows that, too. He further knows that judge knows what his own “side” expects him to do. It would take an act of extraordinary courage to act against interest and expectation in this instance. And our present system is not calibrated to produce such acts of courage but rather to produce the expected outcome.
That’s what diversity is for. That is, beyond the fairness issue, viz., that in a multiethnic country, it’s unwise and arguably unjust for high offices to be monopolized by one group. But that’s an argument for something like quotas—or, if you want to be high-minded about it, “distributive justice”—and the quota rationale for diversity is passé. The current rationale is that diversity provides “perspectives.” Perspectives to aid in getting around the law and procedure. Otherwise, who cares about diversity? Just apply the law. Simple.
Trump is taking for granted—because he is not blind—that ethnic Democratic judges will rule in the interests of their party and of their ethnic bloc. That’s what they’re supposed to do. The MSM and the overall narrative say this is just fine. It’s only bad when someone like Trump points it out in a negative way. If a properly sanctified liberal had said “This man is a good judge because his background gives him the perspective to see past narrow, technical legalities and grasp the larger justice,” not only would no one have complained, that comment would have been widely praised. In fact, comments just like it are celebrated all the time. That is precisely what Justice Sotomayor’s “wise Latina” phrase was meant to convey.
Plus, Trump has whacked the hornets’ nest by his criticism of Mexican immigration, which he feels this judge is bound to take personally. And why shouldn’t he conclude that? The left (and the domesticated right) tell us incessantly that any criticism—however fair or factual—that touches on a specific group will inevitably arouse the ire of that group. Don’t say anything negative about immigration or the Hispanics will never vote for you! Don’t say anything critical of Islamic terror or more Muslims will hate us! But when Trump uses that same logic—I’ve criticized Mexican immigration so it’s likely this judge won’t like me—he’s a villain.
To look for logical consistency in any of this is to miss the point. Trump is bad, and he is using these leftist arguments for bad (that is, not their intended) ends. Therefore he is both bad and wrong, even though others who say logically identical things are good and right.
