The Ever Present Danger of Analogies

I have to admit that I rarely read the opinion columns of local radio talk show host Mark Davis in the Dallas Morning News, not because he doesn’t write well or because I usually don’t agree with him, but because he toes such a straight-line conservative viewpoint that I usually know just what he will say without having the bother of actually reading him. A recent op-ed piece about the confirmation of Judge Sonia Sotomayor caught my attention, however, large because it included a basketball analogy. I will almost always read anything that discusses basketball—or canoeing or chess or cooking or any of my other numerous interests.

You can find the whole column here: http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/DN-markdavis_0715edi.State.Edition1.25b8b66.html, but this is the portion that I found interesting:
“ ‘Empathy for one party is always prejudice against another,’ proclaimed ranking Republican Sen. Jeff Sessions of Alabama, nine words that cut with clarity to disembowel the most artful posings of those who view the Supreme Court as some empowered leveler of our national playing field.
The sports analogy is useful: In the recent NBA finals, the referees could have called ticky-tack fouls against the oft-crowned champion Los Angeles Lakers against the upstart Orlando Magic, a team the officials could have aided by turning their heads when they broke the rules.
The righteous public revulsion at such an outrage should be the same reaction when a judge subjugates the law to some self-created storyline of ‘fairness.’ “
I found these paragraphs interesting because it shows just how dangerous it can be to make an argument that depends on analogies.
Yes, in theory, the NBA referees could call the game to help the underdog Magic, but as every NBA fan knows—and as every Dallas Maverick fan really knows after the results in the 2006 NBA finals—NBA referees don’t favor the underdogs, instead it’s the superstars of the game, the Kobe Bryant’s and Dwayne Wade’s, that get the benefit of the referee’s bias. I have to say that Mark Davis ignoring that fact irritates me far more than any of his political positions..
The NBA is just like our judicial system in that regard. The system of adjudication favors those who are already privileged. In basketball it’s superstars. In the judicial system it’s white males. If you don’t believe me, take a look at this chart of incarceration rates from the Department of Justice:

http://www.ojp.usdoj.gov/bjs/glance/jailrair.htm.

There isn’t any better chance of a Black or Hispanic defendant getting an unfair advantage from a court then there is of Courtney Lee getting the call over Kobe Bryant.
Beautiful theories are often spoiled by stupid facts. The very best you can hope for is that recognizing existing prejudice will help mitigate its effects. Judge Sonia Sotamayor seems to know this. Mark Davis, Sen. Jeff Sessions and the NBA referees don’t.