Conservatism, with its belief in institutions, traditions, and the past, will seemingly always privilege (perhaps inadvertently) the powerful over the powerless. Institutions, traditions and the past belong to those with power. Privileging them, privileges their agents.
TNC makes some very potent points. My worry about identity politics is that we should indeed take into account our different experiences, but we should always also try to transcend them. Wallowing in them seems less of an overcoming than an undergoing. It's why I'm leery of hate crime laws and affirmative action, and all legal structures that put us all into separate ethnic or emotional or racial camps for ever. The argument that this comes too easily for a white guy like me is certainly valid. But I refuse to see the rule of law and judicial modesty as somehow white or male. The principles of classical liberalism have no color and gender, and are, to my mind, indispensable to getting past both.
TNC's point about conservatism privileging power is therefore almost right.
Of course, a general desire to integrate new movements, ideas and communities into things as they already are, rather than up-ending them entirely, privileges what was over what might be. But as long as conservatism doesn't adopt a knee-jerk hostility to all social change, this is a feature, not a bug. It makes coherent and stabilizing change possible.
Societies have their own rhythms and reasons that are not always reducible to the rational. Finding a way to adjust these to accommodate social change is the key to making that change stick and making it also seem less like change. So Sotomayor's claim that she seeks to transcend these aspects of her identity to integrate herself into the existing pattern of judicial reasoning is, to my mind, an admirable conservative impulse. But her insistence that this is also impossible, while not entirely untrue, strikes for me the wrong note. In my own exploration of homosexuality, for example, I have long argued for integration into existing structures - such as marriage and the military and workplace - rather than carving out special legal spaces for permanent victims, as with hate crimes and affirmative action. That's why my approach was rightly described in the 1990s as conservative (even though in the new millennium, it became tagged as "liberal").
Larison also critiques me:
According to Shelby Steele, who writes on almost nothing except for subjects related to race, she is “race-obsessed.” Andrew chimes in and refers, apparently without any irony, to the “constant, oppressive consciousness of her identity” and goes on to say that “the harping on it so aggressively so often does strike me as a classic mode of victimology deeply entrenched in her generation.” What evidence do we have that her consciousness of her identity is either constant or oppressive, or for that matter where is the evidence that she “harps on it” aggressively or otherwise? She talks about it, she refers to it, she takes pride in it, she thinks that it mattersthis is not obsession or aggression.
Maybe this can be explored further at the hearings.
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