Liberal feminists Ruth Marcus and Hanna Rosin have suggested that it’s hypocritical for conservatives to defend Bob McDonnell on the grounds that he should be judged by his political record, not his 1989 thesis. Didn’t these same conservatives pounce on Sonia Sotomayor’s “wise Latina” remark and ignore her judicial record?
There are at least four problems with this line of attack. First. McDonnell’s thesis is 20 years old; Sotomayor invoked the “wise Latina” theory of judging as recently as 2003. Second, Sotomayor was a judge throughout the period when she proclaimed the superiority of the “wise Latina” judge. The inference was thus strong, if not inescapable, that it influenced her judging. By contrast, McDonnell did not enter politics until several years after he wrote his thesis.
Third, no one I read claimed that Sotomayor’s “wise Latina” remark trumped her judicial record. I certainly didn’t. My argument was that the remark informed her record, helping to explain, for example, how Sotomayor ran roughshod over the rights of the non-black New Haven firefighters in the Ricci case. It seemed to me that the extreme racial identity politics embodied in the “wise Latina” remark helped explain (1) how Sotomayor embraced a district court opinion the reasoning of which no Supreme Court Justice adopted and (2) her bizarre, perfunctory procedural handling of the case that drew criticism even from her mentor, Judge Cabranes.
It’s fair, by the same token, to ask whether McDonnell’s thesis informs his political record. The answer, I think, is no, at least not in the sense that Marcus and Rosin would like to suggest. The social conservatism of that record is of the standard issue variety. To my knowledge, McDonnell has not tried to curb “fornication” or premarital cohabitation. Nor has he supported discrimination against women in the workplace.
Fourth, as with most arguments from “hypocrisy,” the logic runs both ways. How is it more hypocritical for conservatives to want to talk about Sotomayor’s “wise Latina” remark but not McDonnell’s thesis than for liberals to excuse Sotomayor’s statement while trumpeting McDonnell’s graduate school writings?
And it seems particularly hypocritical of Marcus to accuse McDonnell of insulting the intelligence of Virginia voters when he cites the fact that he wrote his offensive statements as a graduate student. Did Marcus find it insulting when Sotomayor tried to explain away her “wise Latina” remark in terms so implausible that they caused Mike Seidman, an honest liberal, to denounce her as unfit to serve on the Supreme Court?
The answer is no.
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