Commentary Magazine


The Gray Lady Gives It Away

Yesterday’s New York Times account of some speeches delivered by Supreme Court nominee Sonia Sotomayor should remove any lingering doubt you might have about whether Sotomayor is obsessed with identity politics and has taken on the baggage of the victim-mongering industry that has subsumed the original civil rights movement.

On her own affirmative action experience:

Judge Sonia Sotomayor once described herself as “a product of affirmative action” who was admitted to two Ivy League schools despite scoring lower on standardized tests than many classmates, which she attributed to “cultural biases” that are “built into testing.”

[. . .]

“Since I have difficulty defining merit and what merit alone means, and in any context, whether it’s judicial or otherwise, I accept that different experiences in and of itself, bring merit to the system,” she said, adding, “I think it brings to the system more of a sense of fairness when these litigants see people like myself on the bench.”

You see it’s not her fault she doesn’t match up to other students: merit is just a canard to keep minorities down. The important thing is to get more minorities into elite schools and on the bench to change the system. Got it? (Nary a concern is voiced for the white student with superior test scores whom she bumped out of Yale.) That’s exactly the position she articulated in Ricci and which runs through her “wise Latina” and other speeches. As Stuart Taylor recounts:

In response to Judge Rosemary Pooler’s assertion that “no one was hurt” in the New Haven case, Torre said: “No one was hurt? For heaven’s sakes, judge, if they didn’t refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren’t hurt? They’re out $1,000 apiece [for test preparation]…. They spent three months of their lives holed up in a room, like I was and you were when we took the bar exam.”

Both on the bench and in repeated speeches she eschews achievement in favor of ethnic or racial parity. And if one must throw out test scores for lawyers or firefighters to get to the “right” result — numerical parity for minorities — so be it. To this cause she has devoted considerable energy and effort: “Reflecting on her 12 years on the board of the Puerto Rican Legal Defense Fund before she became a judge, she recalled helping change its policy focus from voting rights and bilingual education to economic issues, like ‘cases attacking civil service testing and issues of union admissions.’”

The New York Times article also points out how shockingly deficient her legal reasoning skills are. On the subject of international law in a 2009 speech, she seemed to agree with the Supreme Court’s decision in Medellin v. Texas rejecting imposition of international law. But that’s not all:

Still, Judge Sotomayor also criticized conservative attacks on Supreme Court decisions in recent terms that mentioned foreign law — including decisions striking down the death penalty for juveniles and striking down a Texas law barring sodomy.

“In both those cases the courts were very, very careful to note that they weren’t using that law to decide the American question,” she said. “They were just using that law to help us understand what the concepts meant to other countries, and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.”

Huh? What pray tell is “the mainstream of human thinking” and how does it inform what the constitution requires or permits? Leave aside the rambling sentence construction for a moment. Her reasoning is circular and inept. If we aren’t supposed to be applying international law to decide a U.S. legal question why do we care to survey “mainstream human thinking”? (And is there some non-human thinking she feels safe excluding?)

This is not a comforting picture: a self-described affirmative action beneficiary who declares merit to be bunk, looks feverishly for bias rather than individual achievement to explain minority achievement gaps, and whose legal reasoning is mediocre at best. She, among all the judges in the country, was the nominee Obama selected?