January 24, 2009

Nichols doesn't get it either

The Journal-Sentinel's Mike Nichols on the baby mama kerfuffle:
Judge Wall didn't intend to be offensive, [appeals court judges] Kessler and Curley opined. But, they claim, "a reasonable person" would conclude he "was improperly considering the defendant's race." They focused on a couple sentences out of thousands and suggested Wall didn't mean to be a racist — but is.
That's a pretty outrageous and irresponsible accusation against Judge Kessler and Judge Curley. They most certainly and unequivocally did not suggest that Judge Wall is a racist.

Nor did they claim merely that a reasonable observer might find an improper consideration as a basis for the defendant's sentence.

They found that a reasonable person in the position of the defendant could have. That is a fundamental distinction. I would submit that had they not taken the defendant's own perceptions into consideration, they very likely would have affirmed his sentence.

Nichols, like many others, needs to go back and reread the court of appeals decision more carefully before making such pronouncements.

Interestingly, Nichols himself goes on to imply that another well known judge does harbor racist inclinations:
Our attorney general should appeal this decision to the Supreme Court. Unfortunately, there are some bench warmers there, too — including former Burnett County Circuit Judge Michael Gableman, who not long ago ran a Willie Horton-style ad that really was offensive. Exoneration from the likes of people like Gableman probably won't mean much to Joe Wall.
As offensive and insulting and pandering as Gableman's teevee ad was — and it was, very much so — I strongly disagree that it serves as an indicator of racism on the part of Gableman personally.

Although it was almost undeniably designed to appeal to and exploit racism for votes, what it was was the sleaziest of gutter politicking and for that, no racial component is necessarily required.


William Tyroler said...

They found that a reasonable person in the position of the defendant could have. That is a fundamental distinction.

Agreed. And so perhaps would Michael O'Hear, who has some trenchant observations about why it would be important to take into account the defendant's perceptions.

But I think a good argument could be made that any reasonable person would have drawn the same conclusion. I'm not sure I can put my finger on why, but there is something terribly unsettling in having a judge poking and prodding a black defendant about "the baby mama." Maybe there's a hint of condescension; maybe a hint of something more invidious. Whatever it is, if it makes some neutral observer cringe about the potential implications, then that should be enough. We apply purely objective tests in many contexts, why not this one?

From one of your recent, earlier posts: In any event, it's a fascinating, worthwhile discussion and one that raises a wide range of both legal and local public policy concerns

Exactly so. But let's be clear: you raised it first, and discussed it more thoroughly than anyone else. And it was a master stroke to focus on the standard of review, ordinarily a stultifying subject, which for better or worse is what this case is ultimately about. I share your concern, expressed elsewhere, that the court of appeals did not "go[] into more substantive detail." If I have a beef with the court, that is precisely it.

Anonymous said...

Nichols: "Baby mama" isn't a racial thing. It's a generational thing, a term some young defendants use when they talk. Good judges talk back.

Interesting. The ball has been advanced from (paraphrasing) "he obviously didn't mean anything by it" to "it was an act of generosity and particular judicial genius to adopt what he believes to be the defendant's vernacular to get his point across." And then there's the giant strawman about whether it's within a judge's prerogative to be stern.

But Nichols is onto something. Too much emphasis has been placed on parsing "baby mama" and not enough on whether adopting an interlocutor's idiom - be it ethnic or generational - can itself be reasonably interpreted as prejudicial.

Jack Kennedy speaking German in Berlin was quite endearing and effective. But imagine him adopting a hick accent to an crowd in Atlanta. The audience would of course be offended and suspect bias; his intent would be irrelevant.

The saga is a rhetorician's wet dream:

"An illocutionary act is communicatively successful if the speaker's illocutionary intention is recognized by the hearer. These intentions are essentially communicative because the fulfillment consists in their recognition. Thus the intended effect of an act of communication is not just any effect produced by means of recognition of the intention to produce a certain effect, it is the recognition of that effect."

In other words, hep harangue FAIL.