The cast of Dickensian characters on the Senate Judiciary Committee have divided into two camps for the purposes of the Sotomayor confirmation hearings. The Democrats are hypocrites because they deny what they must know to be the facts. The Republicans are to my mind worse because they are ideologues who do not consider as relevant or even bring to mind facts that show them to be saying ridiculous things, were you to take them seriously.

The Democrats are hypocrites because they deny the clear and obvious meaning of Sotomayor’s “wise Latina” quotation. They say, as does she, who had been carefully schooled about what to say in these hearings, that all she meant to say was that you had to admit to prejudices so that you could suppress them when applying the law. That is quite a twist because it is to say that the minority point of view, or any other point of view, for that matter, is a vice rather than a virtue. She and the Democratic Senators took this tack because the definition of ethnic diversity that was available and much invoked in the Eighties is no longer popular. Now all that diversity is supposed to mean, and this is in accord with Fifties Liberalism, is that an ethnic background is a coincidental fact of personal life, and to be invoked only to show that all people (well, most peoples) have suffered in one way or another, as when Obama states that visiting the slave castle in Ghana reminded him that we must always be aware of all oppression. That way, people on the Supreme Court from a variety of backgrounds can take an interest in their backgrounds, be proud of their backgrounds, but not import anything learned from those backgrounds into their deliberations. There is no Jewish or Catholic or Protestant justice, only justice. Ethnic diversity means no more than that Colin Powell can like soul music.

That is not what the concept meant in the Eighties. Then, and especially in militant circles, diversity meant that people from different groups brought different understandings of the world to their duties, whether in an occupation or in politics, and that the views of some ethnic groups were indeed superior to the views of others, WASPS especially the group against which everyone could harbor prejudices because that had been the group, those dead white males, as the expression went, who had presided over the oppression of other groups. It wasn’t just that ethnic minorities also had talents that were productive; it was that their talents were superior. Blacks had a heightened sense of justice because they had been the objects of discrimination for so long and Latinas, apparently, had a common sense and folk wisdom that stiff backed Protestant types could not match. The lower placed understood life better than those who had been the lords and masters of the lowly. (I am not so sure about that. The slave understands the immediate conditions of his oppression perhaps better than his master, but he probably doesn’t understand the ebb and flow of the price of cotton as well as the master who has to find a market for his product. And so goes the long debate between Hegalian tainted thought and more non-relativist thinking.)

Well, it doesn’t take long for a usage once regarded as obvious, whether or not it is true, to become so displeasing that it cannot even be invoked, which remains a source of great puzzlement and wonder to someone like myself who had, at the time, railed against the idea that the poor were wise or that you can’t comment on someone else’s condition unless you have walked in their moccasins. Political correctness was run amok in the Eighties; now it is an embarrassment. Paul Krugman tried to rehabilitate the Eighties idea of ethnic pride when he said, half humorously on This Week just after the Sotomajor “flub” came to light, that he is sure he has said on one occasion or another over the years that smart Jewish kids from Long Island make good economists. The joke fell flat.

Moreover, it is not even clear that Sotomayor took it too seriously. It was just the kind of rhetorical flourish, a bit of humorous self-praise, that one invoked on feel good occasions, which is just what Sotomayor was doing at the time she made the remark: encouraging Hispanic graduates to do well. Everything in her record, as she and the Democratic senators have kept repeating, shows her to believe the law is an objective activity, every case different and to be decided by the application of the law. That is a much inferior theory of the law to that provided by Scalia or Roberts. First of all, if all cases were different, you could arrive at no decision; the point of a judicial opinion is to show how one case is like another or to differentiate it from another, which means that in most respects a case will be like a preceding case. Moreover, and more abstractly, there is a gap between a generalization and its application to a particular. The justice has to make that leap applying those facts about the case that make a principle germane or not. Obviously there is a selective reading of facts for their relevance, and to deny that, as all the Senators, Democratic and Republican did, is to fly in the face of what everyone knows about making any kind of judgment in everyday life. There are always exceptions, and saying there are no exceptions is no more than to say that an exception will have to reach a higher standard to violate what has now been considered a rule that has no exceptions. The Vatican makes no mistakes, except when it does.

So what the Democrats did was to cater to the idea of objectivity even though on other occasions it had been useful for both Democrats and Republicans to claim that jurists have to have a heart and that they are not robots. No one was interested in a real discussion of these issues. That would be philosophical. What was of concern was just moving around words as flags of approval or disdain. That is all most Senators are good for—although it is to Arlen Specter’s credit, now that he has been demoted so that he outranks only Al Franken, that he tried to ask real questions about whether or not the Supreme Court has an obligation to take cases where there are contrary findings in Federal Courts of Appeal. Sotomayor would only say it is an issue. That was all right because Specter did not expect an answer, just a platform to raise the issue and, by the way, remind his colleagues and the world that he was still sharp enough to run for reelection in 2010.

The Republicans have a different rhetorical agenda than do the Democrats, and that is as good a way as any to define the differences between the parties. The Republicans do not wish to take an argument too far. They frame their generalizations around preferred examples and so their principles come out as no more than clichés because they cannot face up to tough cases. Moreover, someone citing apposite examples would simply be rude, which I can afford to do since I am not a Senator.  So when Senator Sessions from Alabama gets all hot and bothered at the suggestion Judge Sotomayor made in speeches that Courts set policy and that judges bring their experiences to bear, Sessions insisting instead that judges should simply be objective, I thought that Sotomayor should have said she was simply describing the way courts and judges act, not what they should do, and that to refuse to notice the fact that judges exhibit consistent biases was to fly in the face of what was obviously true. I might further have asked Senator Sessions whether he thought that the judges in all of those Alabama cases that involved black defendants throughout the Jim Crow era, including the notorious Scottsboro Boys case, were not systematically biased against black defendants. Sessions might say that was lamentable, but he could hardly deny that was the case—or would he perhaps argue that it is not a bias to reflect the popular view, just a sign of a time that is past. Well, the Eighties are also past, and so Sotomayor’s “Latina” rhetoric was a sign of that time.

Sessions is also part of the present. He is much more concerned about reverse discrimination that his Alabama predecessors were about direct discrimination. That is the way current rhetoric deals with minorities. Its function is to alienate minorities from the mainstream, and that is true even though there is a good deal of merit in the idea that a color blind society has to be color blind. Sandra Day O’Conner got it right when she treated giving weight in law school admissions to minority status not as rhetoric but as a concept whose time will pass within a generation, which, I might note, is what happens with all concepts that do not aspire to be universal but merely suitable to a situation. Free speech may be universal, even in wartime, but affirmative action, like invading people’s privacy by inspecting their airline baggage, is just an exception necessitated by the circumstances of a time. O’Conner got right that a historical time sets up one meaning of a universal concept as more relevant than another. And so “equality under the laws” came to mean “preference for members of one group rather than another”, at least for a while. This is clearly beyond Sessions’ ability to understand.

Senator Graham of South Carolina, for his part, made a more general case than did Sessions. He finds the root of much evil in the Fourteenth Amendment’s equal protection clause which he believes has imported concepts not present in the Constitution, such as abortion and privacy and other matters, into that document. He can argue this, I suppose, with a clear conscience because he may have in mind the history of the interpretation of the Fourteenth Amendment, which has indeed been used for many purposes, including the protection of corporations. I am inclined to remind him, however, of what he knows but chooses not to reference, which is that this Reconstruction Amendment was indeed radical in that it cast a very broad net on limiting the ability of states to intrude in the lives of citizens, with those who had previously been slaves most importantly in mind. The Reconstruction Amendments were occasioned by the Civil War, after all, which had been started in South Carolina. Is it too rude to remind Senator Graham of that? I think he might call “foul”. There are certain topics that cannot be raised, such as the War Between the Union and Some States in Succession. Ideologues depend on your good manners, your desire not to give offense, to allow them to get away with saying the things they say without the challenge of a counter-example. Has anyone asked one of these Republicans to explain what they mean by free enterprise if it includes subsidies for farmers and the oil industry? They are left to languish in their self-righteous puffery. Democrats depend on the ballot box to remove their opponents rather than try to outargue opponents who think themselves entitled to their clichés. To my mind, a wise Latina everyday over an only partially reconstructed white Southerner.