>What’s good for the goose is good for the gander.
First published by BlogCritics on 19 June 2009
Judge Sotomayor is catching flack for having accepted, about one year ago, an invitation to join Belizean Grove, a small, (from one hundred and fifteen to one hundred and twenty five members), apparently intimate and rather exclusive, invitation-only organization which has only female members. According to its website, Belizean Grove is
a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.
To this end, the organization invites
members [who] are highly accomplished leaders in a wide venue of fields, are dedicated to giving back to their communities, have a sense of humor and excitement about life and are willing to mentor and share connections. With this vision in mind, members are invited not only for their professional accomplishments but also for their generosity and compatibility.
According to the founder of the organization,
Ms. Stautberg, who founded the private club nine years ago, . . . the group is a response to the all-male clubs that have long fostered business connections and policy links for powerful men.
"I think we all need support in our lives," Ms. Stautberg said. "We need time to relax; we need time to think. We're all being nibbled at constantly all day, by e-mail." (emphasis added)
The principal legal question involved in this minor kerfuffle is whether membership in such organizations as the Belizean Grove violates Canon 2C of the Code of Judicial Conduct, which discourages judicial membership in organizations which "invidiously discriminate" on the basis of sex, race and national origin, unless they try to eliminate the discrimination. Obviously, the Belizean Grove discriminates on the basis of sex; men aren't invited and presumably can't join no matter how greatly accomplished, sharing or humorous they may be. But does it discriminate invidiously?
The adverb "invidiously" presumably is not redundant, and must therefore have some meaning; otherwise it would not be there. That's why the commentary associated with Canon 2C goes on at some length trying to explain what "invidious" means in context. This is
often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. . . . Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership. (emphasis added)
The commentary associated with Canon 2C cites for guidance by analogy several Supreme Court cases in which organizations had been found discriminatory and therefore subject to adverse action under State statutes. One case involved a popular eating establishment open only to men. Another involved Rotary Clubs International, with "19,788 Rotary Clubs in 157 countries, with a total membership of about 907,750." Membership was limited to men. Another involved the United States Jaycees, with "295,000 members in 7,400 local chapters affiliated with 51 state organizations." Full membership was restricted to young men. In each case, no Constitutional right of association was found to be sufficiently infringed to outweigh State interests in eliminating discrimination on the basis of sex. A key factor in each case was that the group involved was so large as to vitiate any suggestion that "it is in fact and effect an intimate, purely private organization . . . ."
Hence, it is apparently not in contravention of Canon 2C for a judge to belong to a very small, private and selective organization membership in which is limited to women and which is dedicated to the preservation of "religious, ethnic or cultural values of legitimate common interest to its members." Belizean Grove is very small, and it apparently invites for membership only a few women with "particular cultural values," which they presumably share. It does not appear to matter whether those values are unique to women.
There has been some discussion of the meaning of Canon 2C, as to which there is probably legitimate disagreement. For example, here a writer for the National Review seems to come to a different conclusion. Here a writer for Power Line agrees with him. Legal issues frequently produce divergent views, and that's probably a good thing; otherwise, what would lawyers do?
There are those who claim that membership in such an organization is bad, since it discriminates on the basis of sex, and that Judge Sotomayor's membership must somehow be explained away during her confirmation hearings. Based on my reading of opinions in which she joined as a judge on the Second Circuit Court of Appeals, there appears to be little in them, or in other matters, to bring her qualifications seriously into question. I hope that my fellow "conservatives" don't engage in silliness by elevating Judge Sotomayor's Belizean Grove membership to an obstacle of greater importance than, in my opinion, it warrants. It would, I think, be a bad thing were "conservative" Republicans to attack Judge Sotomayor as "liberal" Democrats attacked Judge D. Brooks Smith when he was nominated to the Third Circuit Court of Appeals in 2002, based on his then former membership in the Spruce Creek Rod and Gun Club, a men's fishing club. One basis for opposition was that the fishing club provided
important business and professional contacts . . . where business and professional men interact and bond with each other and with important political figures and judges.
The same is clearly true of Belizean Grove, the web site of which states that it is dedicated to "influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships." Judge Smith was eventually confirmed by the Senate, sixty-four to thirty-five.
The attack was beaten back to considerable degree because of an interesting fact neither Leahy nor Schumer knew. On the wall of the club was a photograph of Marine One landing at Spruce Creek. . . . The president in question was a Spruce Creek devotee — Jimmy Carter. . . . a frequent visitor to what Leahy and Schumer were painting as a sewer of gender discrimination, he was still coming there long after his White House days were over.
That Democrats sometimes do silly things should not be an excuse for Republicans to do those same silly things; silliness begets silliness, and the selection of a Supreme Court justice is too important for that sort of nonsense. And, of course, by not acting silly, the Republicans can help to make the Democrats look silly by comparison.
I do think that some explanation of Judge Sotomayor's membership in Belizean Grove is in order, and I hope it goes beyond what she has said thus far, that men are invited to some social events and that she is unaware of any instance in which a man has sought but been denied membership. These comments do not appear to have been fully considered and, based on my understanding of the commentary associated with Canon 2C, seem inadequate.
I hope for some interesting questions and answers on other, but related, matters — such as "reverse discrimination." The Belizean Grove matter may well be the only context in which such questions can be raised with a legitimate hope for a responsive answer. I would very much like to hear Judge Sotomayor agree with Ms. Stautberg's idea that "we all need support in our lives" (emphasis added), from members of our own genders and, I would suggest, possibly from members of our own races as well. I see no reason why women should not join similar organizations comprised solely of women; why gays or lesbians should not join similar organizations comprised solely of gays or lesbians, nor why Black or Hispanic people should not join similar organizations comprised solely of Black or Hispanic people. Consistently, I see no valid reason why they should be disparaged for doing so, and I very much hope that Judge Sotomayor holds a similar view.
Nor do I see any valid reason why Whites, males, "straights" and others who join comparable small and intimate organizations comprised solely of those who resemble them should be disparaged for doing so. And there's the rub; they are.
Gender politics have proved a minefield for male Supreme Court nominees. . . .
Justices Antonin Scalia and Anthony M. Kennedy quit all-male clubs when they were being considered for the Supreme Court in the late 1980s, and Justice Harry Blackmun resigned his membership in the exclusive Cosmos Club in 1988.
The Boy Scouts of America has been under fire for its membership policies, which preclude Agnostics, Atheists, gays and — yes — girls. The Girl Scouts of America have been under attack for discriminating against some people, but generally not against boys. Just as women who think that they should have an organization to respond to "the all-male clubs that have long fostered business connections and policy links for powerful men," so perhaps should men, Caucasians, "straights" and others – boys and girls included.
I would challenge neither their right to do so nor the morality of such organizations. I would, however challenge the hypocrisy of those who think it is fine for women, but not for men, fine for Blacks, Hispanics and other "minority" group members, but not for White folks, fine for gays and lesbians but not for "straights." I will be very interested to learn whether Judge Sotomayor holds a similar, or divergent, view.