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Wishful Thinking, Once Again

David Brooks, before the election, tried to convince us that Barack Obama was a moderate. Obama has turned out to be radical in his domestic outlook, seeing to dismantle free-market capitalism wherever he finds it, so Brooks has been a bit shaken. Now he seeks to convince us that Sotomayor is not so bad either.

He begins by suggesting that Sotomayor was a helpless pawn in the sea of multiculturalism at elite universities in the 1970s. How could anyone resist? Not Sotomayor:

There was no way she was going to get out of that unscarred. And, in fact, in the years since she has given a series of speeches that have made her a poster child for identity politics. In these speeches, race and gender take center stage. It’s not only the one comment about a wise Latina making better decisions than a white male; it’s the whole litany. If you just read these speeches you might come away with the impression that she was a racial activist who is just using the judicial system as a vehicle for her social crusade.

Not only that, but you might conclude she doesn’t believe in impartiality and thinks one’s intellectual attributes and professional responsibilities are subsumed to racial and ethnic loyalty.

He then asserts:

When Sotomayor left Yale, she didn’t take the route designed to reinforce her ideological dispositions. She became a prosecutor with District Attorney Robert Morgenthau in Manhattan. She told The Times in 1983 that in making this decision, she faced “a tremendous amount of pressure from my community, from the third-world community at Yale. They could not understand why I was taking this job.”

In the years since, she has not followed the easy course. More than any current member of the Supreme Court, she worked her way up through the furnace levels of the American legal system. And when she reached a position of authority, she did not turn herself into an Al Sharpton in robes.

Ah, but she did. Brooks leaves out her twelve years of leadership roles in PRLDEF (the Puerto Rican  Legal Defense & Eduction Fund) and her six-year association with La Raza. These are the very sorts of organizations that “reinforce her ideological dispositions” and continually push for quotas, race preferences, and the like. (Brooks’ own New York Times has an enlightening article on this very point.)

Although he concedes that she is “quite liberal,” he says there is “little evidence that she is motivated by racialist thinking or an activist attitude.” There are a few points to keep in mind. First, the lady says she doesn’t believe in impartiality. Why shouldn’t we should believe her? She has told us it is not possible or a particularly desirable thing to keep one’s personal views and ethnic roots out of judging. If she doesn’t think she can do so, I don’t know why we should.

Second, unbelievably, Brooks ignores Ricci. Not only the decision itself but also the cavalier dismissal of the notion that there are any real victims of racial preferences suggest she is very much blinded by her ideology. (Ed Whelan supplies a few more startling race-centered cases.) Given the sleight of hand involved in crafting an unsigned summary order one can see that it undercuts the argument that she is just doing her job, following the law on the court. She was, it seems, doing all she could to avoid explaining and applying the law — oh, and giving Frank Ricci a clear shot at an appeal on the merits.

And finally, once on the Supreme Court Sotomayor will have pretty much free reign to enact her views. She need not “submit herself to the discipline of the law,” as Brooks said (which she repeatedly suggests judges can’t do anyway). Rather, she will be setting law for all the lower courts and, in her public speeches and appearances, telling judges, lawyers and law students all about her philosophy of judging.

Brooks suggests that we not take Sotomayor’s own words seriously and we, as he urged us to do with Obama, take it on faith that she’s no radical. I think the Senators would be wise not to wish away the evidence before their eyes.



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