Dear Walter and Linda:
At the heart of Linda's great post about Judge Sotomayor and the dust-up over her membership in an all-women's club called the Belizean Grove lies the problem of perceived symmetry. Is there a difference between a group of all-male power brokers who exclude women and a group of all-female power brokers who exclude men? Does it matter that the women formed their own group because they were locked out by the men? My former boss Mike Kinsley says there needn't be symmetry; that "we tolerate discrimination in favor of traditionally oppressed groups more than we tolerate discrimination against them." Our colleague Stuart Taylor contends that "some of the other racial and gender double standards that Kinsley endorses—which served long ago as remedies for discrimination—have come to operate as engines of discrimination that do serious harm to real people."
And that's the nut of the Ricci case: Is tossing the results of a promotion exam because it disadvantages African-American firefighters the same as discriminating against white ones?
Now, Linda says that with respect to all-male clubs, there's no symmetry and there shouldn't be because the Belizean Grove is mainly a lark and a joke. Kinsley says there's no symmetry and that's fine (then he excoriates women who join exclusive women's groups for discriminating against ordinary women). I want to bring John Payton into the discussion because his thoughts on symmetry and perceived symmetry are illuminating. Payton is the head of the NAACP's Legal Defense Fund, and he spoke at an event in New York last week about what qualities we need in our judges. I moderated. Here is Stanley Fish's thoughtful account.
Payton invoked the illusion of symmetry, quoting a stunning passage from professor Herbert Wechsler's famous 1959 Holmes Lecture at Harvard Law School, "Toward Neutral Principles of Constitutional Law," in which Wechsler argued that Washington, D.C., restaurants that denied access to black patrons caused as much harm to him (as a white man) as they did to blacks. Wechsler wrote: "In the days when I was joined with Charles Houston in a litigation in the Supreme Court before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess."
The brilliant Wechsler—in his search for the kind of neutral legal principles that allow one to call balls and strikes—truly believed that he suffered as much for being forced to dine at Union Station with a black man as the black man denied access to Washington restaurants.
Nobody disputes that Frank Ricci, a white fireman, suffered as a result of the city of New Haven's decision to throw out a promotions test he worked so hard to pass. Just as nobody disputes that Barbara Grutter, a white Michigan resident, suffered for being denied access to the University of Michigan law school because of its affirmative action policies. As a subjective matter, so-called "reverse discrimination" is experienced as no less painful a denial than discrimination. And the only thing more unfair than being treated unfairly is being told that your suffering is less compelling or urgent than the next guy's.
But Wechsler's subjective belief that he was as hard hit by forced racial segregation as Charles Houston suggests that our sense of what's "fair" is inevitably constrained by the limits of our own experience and imagination. Instead of railing about Sotomayor's alleged sexism and racism, it's worth trying to imagine what she knows that we do not yet understand. The only other alternative is to become a nation of bitter, atomized victims, struggling to be the most aggrieved. In his talk at the Brennan Center, John Payton hailed the deep truth in Sandra Day O'Connor's vision from Grutter, the Michigan affirmative action case: "Nothing less than the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples."
Walter, Linda, the court is poised to hand down the Ricci decision, and it may well set the terms for the rest of the Sotomayor debate. What do you think of Wechsler's strange hierarchy of suffering? And is this whole conversation around race and Ricci doomed to collapse in a heap of public misunderstanding, umbrage, and resentment?