More on the Liu Nomination: "Bias" and "Racism" Aren't Synonyms

|The Volokh Conspiracy |

Imagine that a well-known conservative federal judge has a last-minute need for a clerk, and it's important to him to have a clerk who shares his general political ideology. He gets two applicants. One is white woman from a small town in Kansas who went to the University of Kansas Law School and notes on her c.v. that she teaches Sunday school at an evangelical church. The other is an African American man from New York City who went to Yale Law School and notes on his c.v. that he is a vice-president of the local chapter of the Skeptic's Society. Both list "member of the Federalist Society" on their c.v.

So the only direct evidence we have of the ideology of the applicants is that they are both members of a conservative legal organization. Which one might you expect the judge to have suspicions about, ideology-wise?

The easy answer would be the male. Our Bayesian priors would be that being African-American, from a heavily blue area, a "skeptic" (unlikely to be religous), and a graduate of Yale Law School are demographic indicia of liberalism. Put them all together, and a judge may need a lot of convincing that the applicant is "really" a conservative.

I think that the easy answer often going to be the right answer, even though the judge may in fact be looking at it the wrong way. One could argue instead that it's easy enough for someone like the female candidate to join the Federalist Society–she's from a conservative part of the country, she went to a law school in that part of the country, and the people she associates with in church are generally conservative. She could easily join Fed Soc without thinking twice, even if she doesn't have an especially well-thought-out worldview, and even if many political positions she does hold aren't conservative.

By contrast, the male candidate likely grew up around people who not only identified as liberal Democrats, but many of whom thought of Republicans and conservatives as "the enemy." Attending Yale Law School only provided further reinforcement of such attitudes. As an African American, he is constantly challenged by liberals of all races of how he could align with "the enemy." His social circle of skeptics tends to be disdainful toward conservatives, especially religious ones. If he nevertheless publicly identifies as a conservative, this suggests that he's thought about things deeply, and despite being constantly challenged, and at times perhaps socially shunned, for his views, he is steadfast.

If the judge happens to be a black conservative–when I said "well-known conservative judge," you pictured a white person, right?–he is much less likely to approach the decisionmaking process with a bias toward thinking the African American candidate isn't really conservative. But the white judge you had pictured in your head may very well have that bias, having not had the experience of identifying as a conservative in a hostile ideological and social environment.

This gets us back to my post about the barriers Neomi Rao and Jessie Liu faced when President Trump nominated them to high-level positions. Some critics have suggested that I accused their leading critics, Sens. Josh Hawley and Mike Lee, respectively, of racism and maybe antisemitism for suggesting that the nominees being women of color who are not members of conservative churchs may have played a role in the opposition.

Here's what I wrote: "Please note that I'm not accusing the Senators in question of antisemitism. Nor am I accusing them of conscious racism. But I do suspect that in certain conservative circles, people have an image in their head of what a 'trustworthy' conservative looks like, and that person is white, likely male, and a religious Christian. Those who don't fit that mold are more likely to have their conservative credentials questioned."

Miy bad, at least in part, for not making it clear that in not accusing the Senators of conscious racism, I wasn't accusing them of unconscious racism, either, but of "bias" in the social science sense. In my judge hypothetical, I think it would be grossly unfair to say that a judge who, based on demographic heuristics, was more trusting of the female applicants' conservatism than of the male's, was being "racist." Rather, his strong, empirically-based Bayesian priors (a "bias") of the likelihood of an agnostic black male Yale law graduate being conservative created a cognitive bias which would be difficult for that applicant to overcome.

Of course, it could be that Hawley and Lee were piqued at Rao and Liu, or at Trump, or at the AG, for undisclosed reasons and just used their purported ideological untrustworthiness as their public excuse. But that wouldn't explain why so many conservative bloggers and some interest groups were so eager to jump on their bandwagons, even though they were entirely accepting of other nominees whose conservative (including pro-life) credentials were far from well-established. Indeed, some of these same people and groups have expressed a vocal president for certain potential Supreme Court nominees, based on little more than knowledge that these potential nominees are people of traditionalist Chrisitan faith.

For the reasons noted above, it's not at all clear that someone who fits the demographic mold of a "Christian conservative" is going to be a more steadfast judicial or legal conservative than someone who doesn't. But regardless, when the only two high-level Trump attorney nominees to get public opposition from prominent conservative Senators based on little more than hearsay and speculation don't fit the demographic mold, it suggest a "bias" favoring those who do. And that's why I suggested that the Republicans are skating close to identity politics.

ASIDE: It would be nice if my critics would be more careful with their facts. Just for example, at the Federalist Kyle Sammin references Liu's "longtime membership in the National Association of Women Lawyers." As I understand it, Liu was involved in the NAWL for less than two years, and, according to her account, quit because the organization was getting too political (and left-wing). She quit in 2006.

It would also be nice if the critics were more consistent. The "objective" basis for opposition to Liu was that she was involved in the NAWL when it opposed Alito and filed a pro-choice amicus brief. Liu personally and publicly supported Alito's nomination, and no one has presented evidence that she agreed with the brief. Meanwhile, one of my critics, Cleta Mitchell, began her career as a liberal feminist Congresswoman. My critics also support Donald Trump, who was publicly pro-choice until he started contemplating a run for president as a Republican. Based on their own implicit criteria, Mitchell and Trump should be forever blackballed from any important role in conservative politics, on much stronger evidence than they have re Liu.

UPDATE: After I wrote this post, it occurred to me that race may play a role in various conservatives, within and without Congress, being skeptical of "minority" nominees, for the following reason: there is always political pressure to have "diversity" in high-level appointments. Conservatives may worry that administration poobahs will be tempted to hire candidates that don't meet normal "conservative" standards in order to choose a candidate who is a member of a visible minority group (and female). So, ironically, the more political pressure there is to hire women and minorities, the more vigilance conservatives may think they need to engage in to ensure that women and minority nominees are on-board ideologically. This is on the one hand not illogical, but on the other entirely unfair to the candidates.

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114 responses to “More on the Liu Nomination: "Bias" and "Racism" Aren't Synonyms

  1. We all make the ecological fallacy mistake as it is way to easy to do, and as Bernstein points out, despite it being a logical fallacy, it often leads to correct answer better than random chance would give one. Besides, conservatives with regard to court appointments have been burned many times before on supposedly conservative nominees.

    1. But as the Wall Street Journal pointed out during the Rao controversy, one of those times was when they supported Anthony Kennedy because he was a personally pro-life Catholic, over Laurence Silberman, a personally pro-choice non-religious Jew. But Silberman would have almost certainly been the more conservative judge, including on ‘social issues.’

      1. Good point, but said with the benefit of hindsight. Anyway, appreciate that you wrote a separate post on the issue.

      2. “personally pro-life” is a red flag. The Kennedys and Cuomo claimed to be personally prolife.

        1. Yep. That’s like “I own guns and support the 2nd Amendment, but…”

      3. Was not paying as much attention back when Kennedy was nominated. However I wouldn’t characterize him as a liberal. He was a centrist.

        Are we sure that wasn’t Reagan’s intent. Back in the better old days we didn’t start out every case prior to opening arguments 0-4 or 4-0 depending on the liberal SCOTUS voting bloc.

        1. A man who rules that putting one’s penis into another man’s tuchis and getting “married” is central to his “dignity” is a liberal, not a centrist.

          1. A man who can’t go more than two comments without talking about male anal sex is gay.

            1. I’ll stop when the Democrats stop making it their holy grail. Look at the recent tantrum they’re throwing over Brunei’s new law.

    2. “Besides, conservatives with regard to court appointments have been burned many times…”

      And this is supposed to justify their reliance on shitty instincts?

      1. Justify, no, explain yea.

      2. Just out of interest is an instinct’s “shitty-ness” independent of its usefulness to the holder, or is an unkind instinct reprieved from “shitty-ness” if it’s useful to the holder?

        1. “Just out of interest is an instinct’s “shitty-ness” independent of its usefulness to the holder…”

          In this context, no. What makes the instinct shitty is that it has a proven record of not being useful to the holder.

  2. ” Based on their own implicit criteria, … Trump should be forever blackballed from any important role in conservative politics, on much stronger evidence than they have re Liu.”

    I’m sure that’s a point many of us would be willing to concede.

    1. I might have agreed if he’d said, “should have been” But he said “should”, which is present tense.

      You’re supposed to adjust your priors as new data comes in, after all, and a lot of new data has come in since Trump has been President.

      1. Trump’s only political core, that you can see in videos going back to the 80s when he was interviewed, was that he wanted to be “America first,” especially with regards to trade and avoiding stupid foreign wars. Social issues? I think he puts his finger to the wind (witness his capitulation on the likely to get overturned in court bump stock ban), but to his credit, generally listens to his base on the issues. I fear what he may horse trade away in a second term though.

        1. Barring Congress becoming MUCH more pro-Trump than at present, I’m not that concerned.

          The only thing keeping the Republicans joining the Democrats in impeaching him is that he’s too popular with the Republican base for doing it to be politically survivable. This means he can’t do much in the way of “horse trading” without losing his protection.

          I suppose it could get tricky towards the very end of his administration. But he’ll need that protection to keep the Republicans from going along with post-administration retaliation, too.

          The only reason he did that bump stock ban is that the NRA felt like throwing those people under the bus. If they’d told him no way, I think he’d have held firm there, too.

          1. Personally, I would rather they fight to reopen the 1986 registry than fight for bump stocks. If you could get a full auto AR for a $200 tax stamp (the gun itself wouldn’t cost any more than a semi-auto AR), no one would care about bump stocks.

            1. I don’t think that that aspect of the NFA/GOPA. Maybe we could get de-regulated suppressors though.

              1. De-regulated suppressors are much more likely, as they can honestly be sold as a public health issue.

                Machine guns? Outside of some really nasty circumstances, it’s hard to make a case for restoring their normal legal status on the basis of their being needed; They’re really just a way for wealthy people to have fun burning ammo. (Not knocking it, it is a blast, but an expensive blast.)

                The country would have to become a lot more pro-gun, philosophically, to make that a plausible goal. Right now we’re at a place where we usually have the clout to keep the laws from getting worse, and can sometimes roll back outlier laws, but the tide hasn’t turned yet, and probably won’t for decades, because the political class are not with us, and they’re now largely a closed self-perpetuating group, and they have the media backing them on this.

                1. I don’t think it’ll ever roll back, not with the flood of third worlders every day.

                  Anyway, I agree that machine guns aren’t that useful. But if that’s the case, there’s no need for the police to have them either. The LEO exemption should disappear, and they should stay with the military only.

                2. When the tide turns on America’s legal treatment of guns, I doubt conservatives are going to welcome the change.

                  1. We will welcome it with bullets on you liberal traitors.

            2. As a card carrying NRA member who also is a member at the local NRA range I would point out that bump stocks are not all that popular with any NRA member I know. It is almost impossible to maintain any accuracy with a bump stock; not to mention they invite even a quality weapon to jam. It is also very easy to tie a shoe lace to your belt and mimic the function of a bump stock. Legal arguments aside a bump stock is a joke to any serious shooter I know of. Most any experienced shooter could do a mag dump without a bump stock as fast as with one and still maintain better groups on paper. For me and a lot of other NRA members the reaction to bump stocks is ‘who cares’.

              1. That’s a pretty theoretical take on it, ragebot. Experience says otherwise. What do you make of the victim numbers in the Las Vegas shooting? Don’t worry, that only applies to crowds?

                1. I think the shooter could have racked up the same number of victims without bump stocks. It’s not that hard to fire quickly with a semi-auto, and when you have a crowd of 20,000 people standing in one spot, they’re like fish in a barrel. Look at the number of victims the Christchurch and Pulse shooters managed to create.They’re not much lower.

                  1. Look at the number of victims the Christchurch and Pulse shooters managed to create.They’re not much lower.

                    Not much lower than ~ 450 shooting victims at Las Vegas?

  3. In the hypothetical, we’re looking at people’s religious affiliation?

  4. “in not accusing the Senators of conscious racism, I wasn’t accusing them of unconscious racism, either”

    That is a fairly important clarification, which would not have been obvious from the original post.

    1. Eddy, Bernstein is full of it. See my post at bottom.

  5. “expressed a vocal president”? do you mean vocal preference? Damn auto-correct!

    Still, you only offer two examples of individual senators, each opposing one nominee, and in the comments you mention the Kennedy-Silverman example, which occurred before either senator had been elected. You fail to address the fact that Lee, at least, has supported other judicial nominees who were not white Christians, and that Hawley is too new to have a record. That (with a passing, dismissive acknowledgement that there may be other factors involved, including factors that the senators chose not to state) was the basis for the claim that “Republicans are skating close to the edge of Identify Politics.” That’s quite a charge to make based on such thin evidence.

    1. ^^ This comment nails it.

  6. If a candidate’s membership in the Federalist Society can count as a positive factor, then why couldn’t Liu’s membership in the National Association of Women Lawyers count as a negative factor?

    Paraphrasing one of the NAWL’s amicus briefs:

    “The amicus brief highlights the crucial role access to abortion plays in women’s equality and economic security. The amicus brief will focus on how the right to abortion is essential to women’s dignity and equality, and how abortion restrictions like HB 2 infringe on that right, specifically examining the negative effect of such restrictions on women’s economic security and opportunities, which compounds and entrenches existing inequalities.”

    https://www.nawl.org/p/bl/et/blogaid=953

    1. He explained that in his original post. NAWL is primarily a networking organization for women. Federalist Society is expressly an ideological entity. But even if you considered NAWL membership a “negative factor” (which is idiotic), it’s still overwhelmed by the actual evidence that this woman is, in fact, a judicial conservative.

      I used to be a member of the ABA but that doesn’t mean I agree with everything the ABA says. The conclusions you can draw from my membership in the ABA would be narrower than the ones you’d make if I joined the American Communist Party or the KKK.

      1. Going by their statement of purpose,

        “The mission of the National Association of Women Lawyers is to provide leadership, a collective voice, and essential resources to advance women in the legal profession and advocate for the equality of women under the law….

        “NAWL’s initiatives and activities include:

        “…Amicus support in the Supreme Court of the United States and in other federal courts on issues of concern to women.”

        There’s plenty of networking language in there, too, of course, but they don’t say they’re *only* a networking organization.

        Of course Liu might be able to explain her membership, that’s not the same thing as saying it’s “I’m not calling him a racist, but…” just to ask her about it.

        1. Well, I didn’t know she was only in there 2 years, apparently I missed that angle.

          1. But on the other hand, I missed her leadership role in the organization.

      2. What if you were President of the ABA, while the ABA was sending out letters that condemned certain nominees. Would that change things, rather than just being a member?

  7. It’s “Sammin,” not “Sammon.”

    1. And as to “longtime” membership: this 2006 publication by NAWL refers to Liu as “president-elect” following her two years as vice president. It is possible, I suppose, that she was instantly elevated into the organization’s leadership upon joining, but it seems unlikely. (See http://www.nawl.org/d/do/53 at p.7)

      FWIW, I supported Liu’s nomination, I just thought your characterization of Hawley’s objections to be off-base.

      1. “it seems unlikely”

        You are being kind.

      2. I’ll fix the spelling when I have access to my post, sorry.

        As for the other point, I think people don’t understand how these things work. This isn’t the NAACP or Concerned Women of America or some other huge organization with a paid power structure. These are volunteer positions….

        You’re a busy young lawyer. Someone asks you to organize a panel. You do a great job. They’re like, hey, our VP just resigned, can you do that. You think “sure, it will be a great networking opportunity, my firm will really like it as a client development thing, and they told me it’s only like a few hours a month.” It’s not a hierarchy in which you work your way up, unless and until they start having paid professional leaders.

  8. “Of course, it could be that Hawley and Lee were piqued at Rao and Liu, or at Trump, or at the AG, for undisclosed reasons and just used their purported ideological untrustworthiness as their public excuse.”

    I think this hits closest to the truth.

    I don’t envy politicians, especially Representatives and Senators.

    They have to satisfy their base constituents, their political party, the President (if same party), and then also their own personal beliefs–and these entities are not always pulling in the same direction.

  9. “If the judge happens to be a black conservative–when I said “well-known conservative judge,” you pictured a white person, right?”

    Actually Mr. Bernstein, I thought of Clarence Thomas.

    There is bias afoot, but you may need to look inward to find it.

    1. Yeah, the most well known conservative judge is Thomas.

      Judge Ho is a new but well known conservative judge, not white.

      The professor needs to update his priors.

      1. Yep, Justice Thomas immediately comes to mind.

  10. This post violates the first rule of holes.

    You made a blunder, take the L and move on.

    1. Bob, I appreciate that you generally agree with me in your comments, but I stand by everything I’ve written.

  11. “Rather, his strong, empirically-based Bayesian priors (a “bias”) of the likelihood of an agnostic black male Yale law…”

    I wasn’t accusing you of being racist! I was just saying you used race-based priors to make your decision. Huge distinction.

    1. Rather, his strong, empirically-based Bayesian priors (a “bias”) of the likelihood of an agnostic black male Yale law graduate being conservative created a cognitive bias which would be difficult for that applicant to overcome.

      I have to assume that Bernstein is postulating that it’s going to be a cv only hire, there’s not going to be an interview. Because obviously in an interview it’s going to be easy to overcome the, er “cognitive bias.”

      And just while we’re passing by, I don’t think “cognitive bias” includes entirely rational heuristics based on statistically valid priors, even if those priors are based on race or sex. If you’re hiring a basketball player based only on a form that mentions the candidate’s sex, with no mention of height, picking a guy over a gail is not “cognitive bias.”

      Likewise if you’re picking someone for your 100m sprint relay team, sight unseen, and all you know is that the two candidates were born in (a) Jamaica or (b) Ethiopia – pick the Jamaican. it doesn’t make you “cognitively biased.”

      1. The whole point is that if you have strong Bayesian priors, it’s difficult to overcome them with new information.

        1. Well that depends on how rational you are. Nobody’s entirely rational, and some are more rational than others. But if you think that Senators Lee and Hawley are more than usually irrational, as compared say with the average Senator, what priors do you have for that suspicion ?

          1. People are also bad at diagnosing rationality (or lack thereof) in both themselves and others.

            Doesn’t mean there isn’t value in trying, though. Just don’t be super confident of your conclusion, especially if it’s that you are the sole rational individual in a sea of emotional fools.

            1. Sure. But I think the onus is on Prof B to support his priors on Mike Lee’s irrationalty.

              btw I am a lot more rational than most people 🙂

              1. I don’t disagree with you on the speculative nature of Prof. Bernstein’s claim. His evidence appears to be the impression of a double standard via counterfactuals.

      2. “And just while we’re passing by, I don’t think “cognitive bias” includes entirely rational heuristics based on statistically valid priors, even if those priors are based on race or sex.”

        Of course I agree. If I’m trying to organize two candidates by the darkness of their skin, and I knew one was white and one was black, I’d pick the black candidate. But we’re discussing intellectual vetting, and so far as I can tell skin pigmentation doesn’t cause intellectual. The risk of relying on simple heuristics (like race) for an ideological selection are highlighted in Bernstein’s example specific example about how a black New Yorker who happens to be in the Federalist Society might be more ideologically driven than the white church lady.

        But if Bernstein is accusing people of misusing Bayesian reasoning based on racial priors, he’s accusing them of behaving like a racist. That is not to say that all people who misuse Bayesian reasoning are racists (just the ones in Bernstein’s example). But anyone who relies on Bayesian reasoning with race-based priors to determine an outcome that is race-correlated but not race-caused, is at the very least lazy. If this shit is important, race-based heuristics aren’t sufficient. If you wanted to win your 100m sprint relay team, wouldn’t you ask more than one question about where the person was from?

        1. “so far as I can tell skin pigmentation doesn’t cause intellectual…”

          Should be “intellectual leaning”. Like, leans right or left.

        2. I’m not quite following your drift on correlation and causation. If the color of the skin of an avocado is correlated with the ripeness of the stuff inside, what does it matter whether the one is caused by the other, or they are both caused by some hidden factor ? If A is correlated with B, then if you see B, you expect – at some level of probabilty depending on the extent of the correlation – to see A.

          But anyone who relies on Bayesian reasoning with race-based priors to determine an outcome that is race-correlated but not race-caused, is at the very least lazy.

          Again what’s the distinction you’re drawing between race-correlated and race-caused ? Just the extent of the correlation ? Or is causation critical to the distinction you’re making ?

          1. Anyway….yeah, sure, race and sex and other broad based correlations are going to tell you not very much about individuals, and yeah you should enquire more closely, if you have the time and money to spend on further enquiry.

            My point is simply that race and sex and IQ and height and age based heuristics about humans are just as valid as any other broad based heuristics about anything else. A screw made by XYZ Corporation may be faulty 0.2% of the time (on average) and a screw made by PQR Corporation may be faulty 0.5% of the time. If you have no time or money to waste on deeper enquiry, you can rationally base your buying judgement on those statistics, the price differential, and the cost to you of a fauty screw. Whether it’s a screw or a human, either the heuristic is useful or it isn’t.

            1. Thus for example, if you are hiring someone for a job where it’s really important to you that the new hire sticks around for at least five years and you’re confronted with :

              1. a thirty year old man who has had one job since leaving college
              2. a thirty year old man who has had four jobs since college
              3. a thirty year old woman who has had one job since college and who has just got married

              what heuristics (ignoring legal issues) are ringing in your head ? Obviously – (a) is No.2 the kind of guy who is going to stick around and (b) is No.3 gonna get pregnant in the next couple of years ?

              Now you could have extensive interviews to try to find out whether No.2 had just been unlucky with his previous jobs, and No.3 coud reassure you that she and her husband had no plans for children. But frankly, if all three candidates struck you as equally useful, it would be very hard for your interviews to shift your priors (unless No.3 could come up with a good solid hysterectomy.) Because what possible upside is there for No.2 and No.3 ?

              1. “what heuristics (ignoring legal issues) are ringing in your head ?”

                The one that leads me to interview people, as you did in your example. If it’s really important that I have competent people who will stick around for five years, I’m not hiring by three-question bulletins.

                Now, if I’m in a magic jungle with deadly tigers that kill me if I don’t correctly guess as to the best of three candidates with limited information, I can be talked into relying on simpler heuristics.

                1. Well, there are quite a few studies indicating that interviews are not a very effective method. I tend to disagree, based on my on experience, but then I would since I’ve interviewed a lot of people for jobs. I was quite often criticised by other management folk for taking too long about it, but my hiring record was very successful. If the average hiring performance was say 10% stars; 50% good, 20% so-so and 20% duds; my record was more like 25% stars; 60% good, 14% so-so and 1% duds. (Measured on performance of hirees over the long term.)

                  Now there are a number of reasons for why I had a good record, but one of them was that if I wasn’t very confident about the person, I said no. (Fortunatey I was hiring for positions for which there was a lot of competition.) My only dud was when I broke my rule. There was a young lady who had had a lot of disadvantages and some bad luck and I thought “well, I’m not anything like 100% on her, but let’s try to make allowances for her disadvantages.”

                  1. The reason for this long preamble is that I know about interviewing and I was good at it, based on the objective record. And after a three hour interview (yeah, sometimes it took that long – after a candidate had been through other interviews) you still don’t know.

                    Because you’re trying to predict the future. And predicting the future is way harder than predicting the past. You ask a lot of questions and listen to a lot of answers but you still have your heuristics running in the background, providing a useful source of intelligence, along with the immediate evidence of your eyes and ears.

          2. “Again what’s the distinction you’re drawing between race-correlated and race-caused ?”

            Because if we know that it isn’t race-caused, the smarter approach is to dig down into the causal factors and decide on that basis. Your Ethiopian versus Jamaican example is instructive. Being from Jamaica doesn’t cause people to run fast. So you’d want to ask more questions like: what was the last 100m sprint time for the two candidates? If you’re the coach and winning the next competition was super important to you, asking that question would be utterly critical, since even with your priors (a higher percentage of Jamaicans than Ethiopians are competitive runners), your decision, at that point, is effectively 50/50 (since the average speed of Ethiopians and Jamaicans is roughly equivalent).

            1. What if you’re admitting kids to your sports school ? You want to know about potential as well as current perfrmance.

              Incidentally, even your last 100m sprint time example is mistaken. If you have a subpopulation (say the Oranges) who are faster on average than another subpopulation (the Violets) and you have an Orange and a Violet with exactly equal times for their last 100m sprint, you should pick….the Orange.

              Performance in the last sprint will depend on random fluctuations (someone was ill or had a twinge that day, the direction of the wind, the track, whether it was a tough race, did he forget his best track shoes etc) and measurement error (eg the stopwatch or its operator) as well as ability.
              If Mr O and Mr V clock the same time, but Os are generally faster than Vs, the odds are that the random and measurement factors were in Mr V’s favor last time out.

  12. Bernstein’s hypo is a bit peculiar. He starts of by telling us that :

    Candidate A = white, female, country mouse, federalist society, churchy
    Candidate B – black, male, town mouse, federalist society, skeptic

    And he notes each federalist society as a pointer to conservatism

    But of the other deliberate choices, churchy points towards conservatism and skeptic points away. So if you flipped it so that the white female country mouse was the skeptic and the black male town mouse was the churchy one, I’m not at all sure my white, male, town mouse, skeptic, non churchy priors would be pegging the white female as the likelier conservative.

    But later on we’re told that the black male “publicly” identifies as a conservative. Why wouldn’t that upend any priors ? Every federal judge is aware of Clarence Thomas and how steely a conservative he is. Are we supposed to be assuming that the judge’s priors are still pointing to doubts as to the black guy’s conservativism even if he’s pronouncing it publicly ?

    I find the discussion deeply puzzling, and I don’t think it’s entirely on account of my being slow witted. I think it’s a confused hypo.

  13. “when the only two high-level Trump attorney nominees to get public opposition from prominent conservative Senators based on little more than hearsay and speculation don’t fit the demographic mold, it suggest a “bias” favoring those who do. And that’s why I suggested that the Republicans are skating close to identity politics.”

    Uh?So, it is improper for a conservative senate to exercise political bias in favor of conservative nominees by a conservative president? Why the bloody hell does the Constitution contemplate the elected President should nominate and the elected Senate confirm? Political implications are inherent and assumed in this process. Sounds sorta like a senate doing its constitutional job. If the hearsay and speculation suggests a candidate doesn’t fit the demographic mold (if this means political/ideological bent) then it’s perfectly permissible to look more closely at the candidate, notwithstanding the implications of anyone’s invocation of silly notions like “unconscious” racism (Is this like unconscious copyright infringement? and I still can’t hear He’s So Fine in My Sweet Lord, but I digress…) So, suggesting bias and suggesting “Republicans are skating close to identity politics.”? Try suggesting it’s perfectly proper and constitutional.

  14. Now that (SPOILER ALERT) the Skrulls are good guys, why not nominate one of them, since they can assume any skin color?

  15. So you have very little no information on each of these applicants and then you jump right to race.

    How about you interview them both and get a little more information on their views? I get so tired of the endless identity BS. Really stop it. You doubled down on a bad article. Please don’t triple down.

    1. I actually know both of them. I know from personal knowledge that Liu is “pro-life” (though I’m not!), and had an office next door to Rao and many conversations with her. But thanks for playing.

  16. Bias is experience.

  17. I do not regard Kennedy as centrist (he was conservative), and do not regard Thomas as conservative (he’s unfathomable), but then again I’m impervious to the billions that have been spent by certain people on moving goalposts since 1980.

    1. Thomas and Alito are great. The only justices who actually abide by the constitution not their “feels”

      Gorsuch seems to be that way too.

      1. Funny how you feel the ones that agree with you are the objective, thinking, constitutional ones.

        1. Let them have their fun while it lasts, Sarcastro.

        2. Yeah, I’m sure you have no strong opinions on justices that you disagree with

          1. The different is that I think they’re wrong, but not illegitimately ignoring the constitution on accounta their feelings.

  18. It would be nice if my critics would be more careful with their facts. Just for example, at the Federalist

    If the Federalist were more careful with the facts it would have to close up shop.

  19. The strong reaction to this tells of how much the anti-affirmative action talking point of ‘all racial classifications are racist’ cuts both ways.
    On the other side, you have a decent cohort arging that actually, racial and religeous pre-judging is good and smart.

    1. Well I suspect I’m one of the latter kind. Statistics are your friend, until you get the chance to enquire more particularly. Where I think I part ways with Bernstein is with his notion that it’s really hard, psychologically, to adjust your priors in the face of new evidence. Sure, some people do find it hard. And some people will dart from notion to notion with the merest breath of wind. it takes all sorts.

      But the idea that a lot of conservatives think good solid conservative Judges have to be white does strike me as particularly strange since i’d guess that of those conservatives capable of naming one single reliably conservative Judge, about 80% would mention Clarence Thomas.

      Maybe they don’t realise he’s black ?

      1. Turning statistics into a truth about an individual is rather against the individualistic philosophy of our contry. Our history contains a lot of examples of collateral damage to people who adopt heuristics and think their marginal truth-utility over random chance covers all sins.

        But we do all have biases, and none so deep in our tribal bones as those based on group heuristics. Self-assesment is one of humanitie’s greatest powers, and we would do well to apply it to such. I like to align with virtue more than utility.

        As a liberal on the outside looking in, just talking out of my hat here, but the Thomas thing bespeaks the disconnect between the legal community and laypeople. Prof. Berstein, imersed as he is in the conservative legal community, has no shortage of conservative judges to pick from, many of them white dudes. And the Senators/staffers he’s criticizing likely are in the same community.
        Most of the commenters, however, are not.

        1. But we do all have biases, and none so deep in our tribal bones as those based on group heuristics.

          I don’t think that group heuristics are any deeper in our tribal bones than any other heuristics we commonly use. The interesting question – though it has a pretty obvious answer – is : how did those heuristics get into our bones in the first place ?

          Self-assesment is one of humanitie’s greatest powers, and we would do well to apply it to such.

          It is easy to become arrogant and imagine that what we consciously analyse is all that is important. But it isn’t – which is where the bones come in. Bones, like conscious analysis, are by no means infallible – particularly as we live in an environment that is significantly different from the ones in which our bones evolved. But a man who consistently scoffs at what his bones tell him is a fool. The same sort of fool as imagines that twenty minutes thought from his own head will come to a wise answer that has escaped all the other people who’ve been thinking about it for twenty years.

          I like to align with virtue more than utility

          A path with many blind alleys.

          1. Tribalism was a trait we evolved to maximize survival back in the caveman days. But social heuristics do seem a stronger impulse than other heuristics – we don’t go to war based on the Copanhaegan interpretation or the like.

            And saying if we evolved to do it it must be virtuous to do it today is just as cultish as any religeon.

            Skepticism of one’s instincts is not scoffing. And no matter how much your bones tell you, judging individuals based on group steriotypes is fundamentally immoral in a small-l-liberla society. Not something to be embraced.

            I’m not making an empiricist or ratinalist argument, I’m making a moral one. We have a word for embracing negative group based heuristics when dealing with individuals in that group: bigotry. For all you rationalications about the wisdom of bones, that’s where you’ve ended up. I’d recommend checking yourself.

            Utilitarianism is no less a blind ally. Arguably more so, because we know where it leads and have rejected that path many times. You can see that in our history, in our policies, and all over our media. Utility isn’t nothing, but it is not our moral system of choice.

            1. I’m talking about evolved heuristics, obviously. The heuristic “don’t eat things that smell funny” is not social, but it’s just as powerful as “watch out for strangers’, which is.

              I’m not suggesting that what is evolved is necessarily virtuous, merely that it used to be useful, and may still be useful. Virtue is obviously a matter of opinion, but it is not completely divorced from the useful. Thus, such notions that we share about what is virtuous, are often connected with what is useful to society. A man whose word can be trusted is socially useful and is seen as virtuous. A man who lives as a hermit praying for his soul’s salvation, rather less so. Unless he also happens to have developed a useful knowledge of medicinal herbs.

              1. Human notions of morality are undoubtedly partly evolved. We all have a “cheater detection” module in our brain. Not only can psychological experiments show that our mental powers are much more successful at solving problems of logic when they are set in a social “cheater detection” scenario, than when they are set in other scenarios which are logically equivalent. But also we become emotionally aroused – to anger – when we witness someone cheating, even when we are not the victim.

                Utiitarianism is of course a blind alley, because of the impossibility of computation. Which is precisely why the wisdom of bones, which has contributed to our moral sense, has to stand guard for us – conscious calculation is useful but quite insufficient. We also need to deploy our instincts and emotions, which come from our bones.

                1. Even taking your unsupported evolution as a rule for living well BS, we evolved as cavemen. Our society is very different in many ways.

                  There’s more of a chance that our moral sense is misaligned with our current lives than aligned.

                  1. There’s a lot of indignant handwaving going on here, most of it not worth bothering with. But a couple of comments / corrections :
                    unsupported evolution as a rule for living well BS

                    What is your explanation for the fact, confirmed by experiment, that modern humans solve problems in logic, which are formally identical, better if they are clothed in a “cheater-detection” context, than in other equally familiar human contexts, but which do not involve the context of cheater detection ?

                    we evolved as cavemen. Our society is very different in many ways.There’s more of a chance that our moral sense is misaligned with our current lives than aligned.

                    A grand misconception. Of course the modern environment is not the same as it was in our savannah days (where we spent much longer than in caves) But there is more to the environment than wildebeest and solar panels. The most important element in the human environment is other humans. Other humans have not changed anything like as fast as the housing side of things. They still like to survive in social groups. And they still like to reproduce in circumstances that are economically quite different from our close primate cousins ? human childcare has always been, and remains, staggering expensive.

                    1. I’m not indignant, because you’re very much an outlier. I think you’re wrong like Don Quixote is wrong.

                      How does some additional processing power coming online for cheater detection imply anything about the notion evolutionary optimization as a code to live by?

                      Evolutionarily, the most important thing about the environment is whether it kills you or keeps you from breeding. As such, humans would seem less imporant than a host of other things that can cause premature death. Things that are largely no longer around.
                      By your own chosen paradigm, you are incorrect.

                    2. How does some additional processing power coming online for cheater detection imply anything about the notion evolutionary optimization as a code to live by?

                      It demonstrates that someting you think is “morality” – that cheating is wrong, is an evolved mental calculator with its origins in biology, looooong before anyone tried putting it in a religious book or a work of moral philosophy.

                      Evolutionarily, the most important thing about the environment is whether it kills you or keeps you from breeding.

                      And the plus side – whether it sustains you and provides opportunities for breeding.

                      As such, humans would seem less imporant than a host of other things that can cause premature death.

                      And as such, that – Pollock excepted – is the silliest thing I’ve read in 2019. Other humans ae the very things you want to breed with ! They’re both the source of your opportunity; and the obstacles to your reproductive success. Even if you’re the kinda guy who likes to drag a girl off behind a bush by her hair, you’re far more likely to be impeded by another guy with a club than by a passing leopard.

                      Other humans are quite important for getting food too. Particularly if you’re a child, or female

              2. ‘may still be useful’ is a pretty thin reed to build a moral system around.

                Virtue is a matter of collective opinion. An idiosyncratic virtue system won’t get you very far in anything but your own self-esteem.
                To go full-on postmodernist and argue that all opinions are equally valid because none are measureable is to ignore how society operates. Without some leap of faith that you and yours are doing it right, all your left with is bare, lord-of-the-rings tribalism.
                In other words, say what you will about the tenets of National Socialism, at least it’s an ethos.

                Your utilitarian paradigm has become stretched to the point of uselessness at this point. Because you’re no longer arguing about optimization, but rather a binar of useful or no. You can argue dang near everything has utility, from savagery to mercy to homosexuality to philandering. And you are left again without an ethos.

            2. We have a word for embracing negative group based heuristics when dealing with individuals in that group: bigotry. For all you rationalications about the wisdom of bones, that’s where you’ve ended up. I’d recommend checking yourself.

              “Bigot” is just an insult, to dodge the unpleasant reality. Group based heuristics are perfectly fine when applied to inanimate objects and non human animals. We do not cheerfully approach a waterhole at which a lion is drinking, armed only with a smile and an i-phone. If there is something solid behind the heuristics (ie statistics) the heuristic is no less valid just because it applies to human animals.

              When we have no responsibilities to anyone but ourselves, we can “virtuously” ignore the advice of heuristics if we choose and suffer the statistical consequences. But when we have responsibilities to others, as we usually do, we don’t have that narcissistic luxury.

              1. If you’re buying a CO monitor for your cr?che, and brand A has an unimpeachable safety record, while brand B had a big scare a couple of years back about faulty manufacturing, but seems to have escaped without a lawsuit ? which do you buy ? Is it virtuous to give brand B a fair crack of the whip ?

                If you don’t want to hire someone for your cr?che, who was acquitted of child molesting, that may be very unfair on him, if he is not in fact a child molester. But it’s very unfair on the kids to hire him if he is one. You don’t know which he is, given the “reasonable doubt” rule. Which way does “virtue” lie ?

                1. If you’re buying a CO monitor for your cr?che

                  Humans are not CO monitors. It’s even a fundamental principle of our legal system. Machines and animals are assumed to be honest; humans are not.

                  A past history child molestation is quite a tendentious example to pick, because it is about the individual. And second, because it’s a pretty emotional topic. Your argument would thus boil down to we need to treat blacks as inferior because they’re kinda like child molesters.

                  You want to talk about the luxury to act on virtue and not utility? You’re the one with the luxury to sit around and think until you’ve reasoned yourself into eugenics or worse.

                  Empathy is not a luxury, it’s a basic tenet of humanity. You see it even in extremis. So I am amazed to see the luxury to live in a place where one may anonymously using the most sophistic of thought experiments turn humanity’s transcendant ability to deny its nature to ignore the virtuous side in favor of our antisocial impulses.

                  1. Humans are not CO monitors.

                    Correct. But drawing probabalistic inferences from incomplete information is no less valid for humans than for anything else. You may flee from the logic, as you please.

                    Machines and animals are assumed to be honest; humans are not.

                    Where did you pluck that from ? Animals don’t deceive ? They don’t steal and murder ? What planet did you say you were from ? Animals may not deceive etc as a conscious act of will, but that has the square root of F all to do with whether we can draw probabiistic inferences about them. Or us.

                    Still I think we’ve arrived at the essential point of contention. It is “immoral” in your book to consider humans using the same rational tools as we use for everything else. I beg to differ.

                    What’s more – everyone agrees with me, including you. When you consider, for example, whether there should be a ban on automatic weapons you do not consider each individual qua individual. You consider the (statistical) risk that someone will use an automatic weapon to commit a mass murder, and weigh it against the infringement of the rights of all the innocent gun owners.

                  2. A past history child molestation is quite a tendentious example to pick, because it is about the individual.

                    No, you’ve missed the point. You have an individual that you need to make a decision about. We don’t know if he has a past history of child molestation. maybe he does, maybe he doesn’t. We’re trying to determine the probabiity that he does from a heuristic based on groups.

                    (a) there’s a group of humans who have been convicted of child molestation
                    (b) there’s a group of humans who have been acquitted of child molestation, and
                    (c) there’s a group of humans who have never been accused of child molestation

                    Our heuristic is that someone in group (a) is more likely to have been a past child molester than someone in group (b) who in turn is more likely to be a child molester than someone in group (c).

                    The question is – is using this heuristic to inform your hiring choice immoral ? And if you think it is, do you think you should mention your opinion to the parents leaving their kids with you ?

                    Your argument would thus boil down to we need to treat blacks as inferior because they’re kinda like child molesters.

                    More handwaving.

                    1. Yes it is immoral, by our own logic: as a society we force hiring managers to ignore certain things to prevent them from using heuristics. And we’re pretty proud of that.

                      Your cold equations are dystopian at best.

                      Do you deny that your ‘group heuristic’ logic includes things like policies excluding blacks from stuff they’re correlated with not being as good at, and even eugenics? I mean, think of the utility!

                      As I said, dystopian. There’s a reason why behavioral economics is a thing, and it’s not maximizing utility.

                    2. Do you deny that your ‘group heuristic’ logic includes things like policies excluding blacks from stuff they’re correlated with not being as good at, and even eugenics?

                      Strangely enough, I do deny it. Because a group correlation is only part of the evidence that can be brought to bear. So if – say – Asian people on average have worse eyesight than black people, and I have some task for which good eyesight is required, I can test for eyesight directly.

                      But if I’m hiring for, say, positions as an astronaut and I find that of my previous 2,000 astronauts hired, 1600 were “white” and 400 were “black” and 123 of them mysteriously died in space from some unknown disease, and of those who died 16 were white and 107 were black – it’s a reasonable supposition – for the time being – that there’s something about beng black that makes you way more vulnerable to this disease than if you’re white. So absent an explanation, and strictly pro tem, not sending up anty more black people until we work out what is going on, seems to me to be entirely moral and virtuous. And vice versa.

              2. So you’re into prejudging people as a useful exercize. Well, your moral system is quite far away from our norm, and I will judge you for it.

                To put it in your proves everything language, the utility from the additional motivation and
                unity of a society wherein each person may prove themselves tabula rasa outweighs the utility of being right slightly more often than not by using steriotypes.

                Saying that something works for animals, and thus can work for humans is immediate dehumanization, which is again something most tend to avoid since that leads to some pretty harsh methods in the name of utility. Is that an arbitrary line? Perhaps – ask a vegan. But a philosophy that includes humans and animals in the same moral sphere is not going to be in vogue in the post-enlightenment era, at least not in the west.

                1. Saying that something works for animals, and thus can work for humans is immediate dehumanization

                  If I see three sheep in a field, I say “three sheep.” If I see three people in a field. I see “three people.” Does applying arithetic to people just as I apply it to sheep, involve “dehumanisng” the people ? Arithmetic applies to both classes of object in just the same way. Ditto probability.

                  1. Your analogizing arithmatic with behavioral and social interaction shows how flattened your worldview has become.

                    Mathematics, animal husbandry, and psychology are all quite distinguishable. And none of them rely on generalizing based on steriotypes.

  20. I do suspect that in certain conservative circles, people have an image in their head of what a ‘trustworthy’ conservative looks like, and that person is white, likely male, and a religious Christian.

    Really ? Pick your model conservative Judge :

    https://en.wikipedia.org/wiki/Clarence_Thomas

    https://en.wikipedia.org/wiki/John_Roberts

    I’m not sure I move in conservative circles at all. But if I do, they’re clearly not “certain” ones. Perhaps I have failed to learn the right kind of handshake.

    1. “Perhaps I have failed to learn the right kind of handshake.”

      LOL.

  21. So, ironically, the more political pressure there is to hire women and minorities, the more vigilance conservatives may think they need to engage in to ensure that women and minority nominees are on-board ideologically. This is on the one hand not illogical, but on the other entirely unfair to the candidates.

    I’m struggling with this one too.

    If (stipulated) it’s “not illogical”, then how is it “entirely unfair” to the candidates ?

    I accept that it’s “entirely unfair” that some people are cleverer than others, but beyond the unbearable unfairness of being, in what sense is a selector making a logical choice unfair to the candidates ? Would making an illogical choice be fairer ? Cap’n ?

  22. “…I wasn’t accusing them of unconscious racism, either…” No you didn’t outright accuse them of unconscious racism, but you strongly implied it.

    “‘Here’s what I wrote: “Please note that I’m not accusing the Senators in question of antisemitism. Nor am I accusing them of conscious racism.”‘ If you weren’t accusing them of unconscious racism, why use the qualifier “conscious” rather than just writing “accusing them of racism.” There are lots of lawyers reading this blog, and we know how the implication game is played. Don’t insult us with this pathetic attempt at backpedalling.

  23. … what do you think unconscious racism is, if bias based on race doesn’t count?

  24. You know it’s funny, I never need a super-secret decoder ring to figure out if a Democrat is getting racial — they are quite open and honest.

    Yet I am supposed to suspicious of these two men …. just because.

  25. David,

    In general, I agree with you. However, you’re not being entirely forthcoming here. Ms. Liu was not just a member of NAWL. She was in the LEADERSHIP of NAWL. At a time when NAWL was writing letters condemning Alito as a Supreme Court pick, she was vice president, then president-elect. Her name was in the letterhead of the letter condemning Alito. That has significant weight.

    You may argue “But she signed a letter approving Alito”. And? What has more weight, another signature among dozens, or President-elect of a national organization that just condemned Alito?

    You may argue “But she resigned!”. But not until she well after the Alito affair, when she had a job with Bush Administration. Then, resigning looks more calculating. Whoops, a member of the Bush administration can’t actively be president of an organization opposing a Bush SC appointee. If she had resigned before then, or better, when the letter went out, it would be a better sign of her true viewpoints.

    You may argue Trump was pro-choice. But he was never President-elect of Planned Parenthood. When you are part of the leadership of an organization, you take responsibility for its views. It has weight. Especially when the organization starts to veer towards the political on your leadership watch…

  26. As a not-judge, I am not at all sure I like the premise that a well-known conservative judge would want a clerk who would echo his predilections reliably. One of the best safeguards against error is consideration of alternative arguments and viewpoints. An African-American, skeptic, Yale graduate from New York City seems more likely on the surface to present such arguments and viewpoints than a religious midwestern graduate of a midwestern law school. He also might have a wider range of experience relevant to the judicial system. Although I consider my basic inclination to be pretty much libertarian/conservative, I think I would lean toward choosing the black Yale graduate. At worst, his Federalist Society affiliation would be an attempt to mislead, and more likely an indication of openness to viewpoints different from those common where he grew up. It should be possible in an interview to figure out which.

    Of course, the African American from New York might be from a family whose considerable wealth goes back several generations. It would be unwise to assume very much from complexion.

  27. Can’t help noticing how much paradoxical work the term “conservative” is being called upon to do here. Look at the “conservative” label from any point of view except modern movement conservatism, and you find multiple philosophical threads, with variations among them. Look at movement conservatism, and what you find is mostly folks who define politics by what folks oppose, not what they believe?and thus delivers a label that has little in common with more traditional conservatisms.

    Movement conservatives oppose “liberals,” but that term remains so vague in their imaginations that it literally targets much of traditional conservatism as well?but variously, depending on which movement conservative is doing the labeling, and under what circumstances. At bottom, isn’t the question really more about tribal loyalty?whether the candidate can be counted on to vote with the Rs?

    And if that’s true, why isn’t there more push-back from commenters here, on how inappropriate is the premise of this thread, in the context of a supposedly non-partisan judiciary? Presumably the answer lies in recognizing the character of most of the commenters?who are, first and foremost, tribalists with little politics to claim other than opposition to Democrats, no matter what they advocate.

    1. OR because the position isn’t with the judiciary, but with the Department of Justice.

      And high level Cabinet level (and just below) appointees have a long history of being of being partisan appointees. In fact, you might want someone who was with your “tribe” as part of your administration. Otherwise you get Sally Yates.

    2. Look at movement conservatism, and what you find is mostly folks who define politics by what folks oppose, not what they believe?and thus delivers a label that has little in common with more traditional conservatisms.

      I can’t claim to be an expert on “movement conservatism” since it’s a label that carries very little meaning to me. But the notion that there’s someting odd about a variety of conservative who defines his beliefs by refrerence to what he opposes strikes me as, er, odd. The whole point of conservatism is “conserve”. Opposition to change.

      Obviously it gets a bit complicated in detail because opposing change is a pretty feeble approach if you give up as soon as the change lever has been pulled, and immediately become a supporter of the newly positioned lever position. Thus a conservative necessariy contains a reactionary admixture – so resistance to change may include enthusiasm for reversing recent, and even some not so recent, changes.

      Since the Dems are the folk who are (a) keen to keep on changng things and (b) keen to embed recent changes that they’ve managed to pull the lever on, why wouldn’t a conservative of any variety instinctively oppose them ?

      1. No widely accepted definition of “conservative” going back to Burke is definable as “opposed to change” tout court.
        Conservative principles (to use the current somewhat barbaric neologism) “interrogate” the reasons for change and the motivations behind the people proposing them.
        Burke, himself, famously despised the French Revolution, but was, nevertheless, on the side of the colonists in the American revolution.

        1. You’re quibbling. In a world in which change is inevitable you can start with a presumption for it or against it. Conservatives are “against it.” You can describe that as “opposed” to change or “resistant” or “profoundly sceptical” or “needing to be persuaded” or “inertial” or whatever.

          The general prejudice is beautifully captured in the hymn “Abide with me”

          “Change and decay in all around I see;
          O Thou who changest not, abide with me”

  28. So, ironically, the more political pressure there is to hire women and minorities, the more vigilance conservatives may think they need to engage in to ensure that women and minority nominees are on-board ideologically. This is on the one hand not illogical, but on the other entirely unfair to the candidates.

    Well, that’s a nice excuse, I suppose.

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