Commentary Magazine


Contentions

The Judge and the Professor’s Aversion to Facts

Stuart Taylor bluntly writes of the soon-to-be-newest Supreme Court justice and the Harvard professor: “What Sotomayor and Gates share is a habit of drawing dubious lessons about race from their own experiences.” Sotomayor, Taylor points out, plays fast and loose with statistics to claim that Hispanics on the federal bench are “grossly below our proportion of the population.” He explains:

Sotomayor ignored the fact that the talent pool for judicial appointments is not the general population but rather the population of lawyers with the experience and accomplishment to qualify. By that measure, Latinos were overrepresented in the federal judiciary, as Ed Whelan, head of the Ethics and Public Policy Center, has documented. “According to the ABA,” he wrote, “in 2000 the percentage of lawyers who were ‘Hispanic’ was only 3.4 percent [and] the very numbers that Sotomayor complained about equate to 6.8 percent of federal Appellate judges . . . and 5.1 percent of District judges.”

Sotomayor similarly focused on raw racial numbers instead of applicants’ job qualifications in her cryptic rejection last year of a reverse discrimination lawsuit by 18 white firefighters (including one Hispanic) who were denied promotions because blacks had not done well on a qualifying test.

She wasn’t much interested in the facts of Ricci — declining to set forth and analyze them in her per curium opinion and to explain them fully in her confirmation hearing (falsely insisting, for example, that the plaintiffs filed for en banc review when in fact her colleague Judge Cabranes fished the case out sua sponte).

Likewise, Gates has no need for the facts, since his conclusions are already predetermined by his attachment to a narrative that assumes and exaggerates racism. Taylor writes:

[H]e was quite wrong to stereotype and smear as racist Sgt. James Crowley, the arresting officer — who, as Gates himself admitted in an interview with his daughter for the Daily Beast, “obviously . . . didn’t know it was my home” and “was terrified that I could be dangerous to him.” Crowley also turns out to have an impeccable record on race.

Gates was even more wrong to suggest in subsequent interviews that America — in which systematic oppression of blacks was once pervasive — has not fundamentally changed, as he told The Root, of which he is editor in chief.

[. . .]

Indeed, Gates himself seems to understand this in his more lucid moments. “America is the greatest nation ever founded,” he told the Daily Beast.

But in much of his rhetoric, Gates has emulated the countless other academics and politicians who encourage black people to blame whites for problems that no white person alive today did much to cause or has much power to fix.

It is interesting that both Sotomayor and Gates must ignore or distort so much contrary information to perpetuate their vision of America as a society still mired in racism. The professor and the judge must evade quite a bit of contrary data if they are to make the case for America’s debased status — and insist that the racial-spoils system of quotas and preferences be extended. When reality intrudes, we see just how afactual their worldview and how intellectually suspect their reasoning are. They are revealed to be propagandists for an ideology that cannot withstand scrutiny.

Aside from his students, the American public can ignore Gates’s views. Unfortunately, once elevated to the Court, Sotomayor’s platform and influence will only grow, and she will, she has warned us, bring her background and ideology to bear on the law for decades to come.