At the end of last week, Judge Sotomayor quit the Belizean Grove, an organization of professional women that served to provide networking and mentoring opportunities of the sort that old boys' networks have long provided for men. (Mission statement here.) The judge had initially defended her membership in BG on the ground that it wasn't for women exclusively; no man had ever applied. (News story here.) The organization's stated goals seem inconsistent with this characterization, but not entirely so. By way of comparison, most student identity groups at law schools (e.g., Black Law Students Association, Asian Pacific American Law Students Association, etc.) are open to members who are not part of the identity group, even though they draw few such people, given their missions. Still, the notion that BG just happened to be all-female was a tough sell, and so it wasn't surprising to see Judge Sotomayor move off of that argument and simply resign. In her letter announcing that she had resigned, the judge said she still believes that BG doesn't discriminate but that she didn't want it to become a distraction.
One can't blame the judge for trying here, but there is something illogical about the act of resignation. Presumably, the people who were concerned about Sotomayor's membership in BG were not especially worried that she would favor BG or its other members in cases that come before the Court. Rather, their concern was that membership in BG showed a kind of character flaw, specifically, that Judge Sotomayor thinks it's okay to exclude men from organizations that promote their members' careers. If these worriers are right, then the judge's resignation from BG shouldn't mollify them.
Suppose that in 2009 a Supreme Court nominee were a member of the Klan. (Yes, I know all about Hugo Black but I want to use a hypothetical example.) Suppose further that, following criticism, the nominee said "I still don't think the KKK is a racist organization but to prevent it from becoming a distraction, I hereby resign." Why would that appease critics? We would still be justified in thinking that the nominee is a racist and opposing him or her on that basis.
Now, to be clear, I don't at all think that BG is like the Klan or even problematic. Given how skewed in favor of men the business/social world is, an entity like BG is very different from the Jacyees or the Rotary at the time the Supreme Court held that these organizations could be made to open up to women. But the difference is broadly similar to the difference between affirmative action for disadvantaged groups and discrimination against disadvantaged groups. Judge Sotomayor and I see that distinction as obvious and important, but her critics do not. Thus, for them, membership in BG is troubling for what it confirms about her views, and post-nomination resignation doesn't suggest that her views have changed.
An honest discussion of BG would ultimately reduce to a discussion of Judge Sotomayor's views about affirmative action. But since her critics already plan to use the Ricci (New Haven firefighter) case on that point, the BG "issue" presents an opportunity to treat an ideological disagreement as an ethical lapse. If recent history is our guide, this won't work. Justice Alito was questioned extensively on whether he had been a member of Concerned Alumni of Princeton, an organization that opposed the admission of women and the practice of affirmative action for minorities. But the charge didn't stick, partly because there was no record of Alito ever having been a member and partly because it was clear that the Senators who had doubts about Alito were simply using the CAP issue as a way to personalize ideological disagreement.
Finally, let me be clear that I think ideological disagreement IS a legitimate basis for a Senator opposing a Supreme Court nominee. But the way the game is played, it's easier to vote against a nominee if the disagreement can be recast as an ethical or character issue.
Posted by Mike Dorf