The Case For – And Against – Double Standards – The Ninth Justice

National Journal

Consider two judicial nominees, both of whom have won bipartisan support and praise for their distinguished service on lower courts.

Nominee No. 1 had been a not-very-active member of his grandfather’s all-male fishing club in Western Pennsylvania. It had a ramshackle old building with bunk beds, wooden tables and benches like a boys’ summer camp. He resigned two years before his nomination.

Nominee No. 2 was a member of a single-sex club described on its Web site as "a constellation of influential… decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships." That club has periodic meetings in New York and other cities and an annual retreat in Latin America, including cocktail parties with U.S. diplomats and host-country officials and panel discussions on public policy and business affairs.

Nominee No. 1 came under attack from the National Organization for Women and Senate Democrats. Patrick Leahy of Vermont, now chairman of the Judiciary Committee, fumed that the fishing club "invidiously discriminates against women," and thus that the nominee had violated the Canon 2 of the official Code of Conduct for U.S. Judges.

But hardly anyone is very concerned about Nominee No. 2’s club, excepting a few conservatives and my friend Michael Kinsley, the liberal columnist, for reasons of his own.

Nominee No. 2 is, of course, Judge Sonia Sotomayor. Her all-woman club was the Belizean Grove, which touts itself as a women’s alternative to "the power of the Bohemian Grove, a 130-year-old, elite old boys’ network of former Presidents, businessmen, military, musicians, academics, and non-profit leaders." She resigned on June 19 to quiet the conservative fuss, while denying that the Belizean Grove excluded males or practiced "invidious discrimination."

Nominee No. 1 was Judge D. Brooks Smith, a Reagan-appointed federal district judge in Pennsylvania who resigned from the Spruce Creek Rod and Gun Club in 1999. He was nominated by President George W. Bush in 2001 (and eventually confirmed) for a seat on the U.S. Court of Appeals for the Third Circuit. His flaying by Democrats was recently detailed in the American Spectator.

Conservatives complain that Democrats are once again applying a familiar double-standard, denouncing white male Republicans as sexist or racist for relatively innocuous forms of discrimination or remarks while smiling on analogous conduct by female and minority Democrats.

But Kinsley, with admirable candor, applauds such double standards. "We tolerate discrimination in favor of traditionally oppressed groups more than we tolerate discrimination against them," he wrote in his June 18 Washington Post column. "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."

Kinsley has a point. Various forms of "reverse" discrimination against white males are not — as a general rule — as invidious as analogous forms of discrimination against minorities and women, which have a special sting because of our long, lamentable history of white male domination of women and oppression of minorities.

Men’s clubs such as the Bohemian Grove, for example, have traditionally provided important opportunities for business and professional networking from which women have been excluded. Women’s clubs, on the other hand, seem unlikely at this point in history to deny any man his fair share of networking opportunities.

Kinsley does fault Sotomayor for telling a "brazen whopper" when she argued that the Belizean Grove did not actually exclude males from membership. And he deprecates that club as a far-from-egalitarian "parody of elitism."

More to the point here, the double standards that Kinsley champions are based on crude over-generalizations that are dangerous even though "reverse" discrimination and old-fashioned white male discrimination are not entirely symmetrical.

Decades after most business-oriented clubs have ended their all-male policies, does anybody really believe that women suffer from being excluded by the Spruce Creek Rod and Gun Club — where, it appears, little if any business is conducted? Would an ambitious go-getter see more opportunity for advancement in the fishing club that resembles a summer camp — or in the Belizean club that helps elite women "build long term mutually beneficial relationships" around the nation and overseas?

Putting aside feigned horror about single-sex clubs, 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.

In Kinsley’s view, for example, "a university’s minority scholarships are considered admirable, while similar programs reserved for white people would be regarded as horrific." But how admirable is it for our selective universities to pass over relatively low-income Asians and whites in order to give generous minority scholarships and large admissions preferences to less qualified and in some cases more affluent blacks and Hispanics?

And how admirable was it for New Haven, Conn., to deny white (and two Hispanic) firefighters the promotions for which they had worked and studied long and hard, in the hope of making better lives for themselves and their families, because not enough blacks did well on the qualifying exam?

After posting this item, I was informed that I had oversimplified the basis for Sen. Leahy’s (and others’) criticisms of Smith’s club membership. Leahy also criticized Smith for lack of candor and for failing to resign from the fishing club until "more than a decade after he assured the Senate" in 1988, in connection with his nomination to be a federal district judge, "that he would quit if the rules were not changed to allow women to become members." I regret the oversimplification.