In his Washington Post column today, Michael Kinsley skewers Sonia Sotomayor for her response to the question of whether her membership in the all-female Belizean Grove violates the Judicial Code of Conduct:
If Obama had nominated a man who was a member of the Bohemian Grove, that would be a big issue and probably a fatal one. So how is it different if Sotomayor is a member of a club set up specifically to be the female equivalent? Rather than try to answer this question honestly, Sotomayor chose to make the preposterous argument that the Belizean Grove isn't a women's club. It's just that no men have ever applied for membership, you see. White clubs used to explain the absence of black members the same way. It's a laughable argument—a brazen whopper—and an insult to the citizenry and the Senate that must confirm her.
Kinsley surely is right that Sotomayor's position is evasive and dishonest. He's also right that there's double standard. Two years before he was nominated to the Supreme Court, Robert Bork, at the time a federal appeals court judge, took the precaution of quitting the all-male Century Association. By his account, he did so when he "became aware that there was a dispute as to whether a club with an all-male membership was engaged in invidious discrimination." It's not hard to imagine what Bork's opponents would have made of his continued affiliation with the group. A few years ago, Democrats criticized Samuel Alito for once belonging to an alumni organization that had resisted the admission of women to Princeton. (After it emerged that Sen. Ted Kennedy (D-Mass.), one of Alito's chief antagonists, still belonged to the all-male Owl Club, which he had joined at Harvard, he immediately cut his ties to the group.) And as Jeffrey Lord notes in The American Spectator, in 2002 Sen. Patrick Leahy (D-Vt.) opposed 2nd Circuit nominee D. Brooks Smith based on his former membership in a Pennsylvania fishing club that excluded women. Leahy, now chairman of the Senate Judiciary Committee, is not likely to make an issue of Sotomayor's continuing membership in the Belizean Grove.
But Kinsley goes on to argue that this is as it should be:
The true answer is that we tolerate discrimination in favor of traditionally oppressed groups more than we tolerate discrimination against them. It's not symmetrical. And, if you believe in affirmative action—as Sotomayor proudly does, as I do—it can't be. An all-women's club is okay even though an all-men's club is not. A corporation's minority recruitment program or a university's minority scholarships are considered admirable, while similar programs reserved for white people would be regarded as horrific.
Kinsley forthrightly admits that there is no difference between affirmative action and reverse discrimination (a distinction the Supreme Court pretends to perceive) but still supports it. I can't go along with him there, at least as far as state action is concerned. But what about guidelines for the private behavior of public officials such as judges? Should they be scrapped, or is there a way to distinguish between forms of discrimination that are no big deal (to my mind, all-male and all-female clubs fall into that category) and forms of discrimination that tend to create a perception of bias (say, all-white or all-Christian country clubs)? I'm not talking about whether private associations should be free to set their own admission criteria (they should). I'm talking about whether it makes sense to tell judges they may not join groups that practice certain kinds of discrimination.
[Thanks to Dan Friedman for the Bork link.]