Judge Sonia Sotomayor’s nomination to the Supreme Court, and especially her provocative assertion (which she misleadingly labels a “hope”) that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” continues to excite commentators — Right, Left, and Center. Fortunately for those of us who comment on commentators, much of this commentary invites criticism.
Take, for example, from the Right, the almost always reliable James Taranto, who writes the Wall Street Journal’s indispensable Best of the Web column. Yesterday he had a terrific discussion of “What Sonia Sotomayor and Archie Bunker have in common.” Read the whole thing, since my criticism is of only the following one small piece of it. Comparing Sotomayor’s “wise Latina” statement above to a definition of racism, Taranto concludes that the statement was prejudiced, but not racist:
Sotomayor’s statement is not racist, even assuming that “Latina” is a racial category. She is quite clear that her belief in the superior decision-making skills of “a wise Latina woman” as compared with “a white male” is contingent on culture and experience, not rooted in some essential racial difference.
I think Taranto would, or at least should, have been more hesitant in concluding that Sotomayor does not believe “in some essential racial difference” if he had paused to consider the implications of the first sentence of the paragraph in Sotomayor’s speech whose last, “wise Latina” comment has received all the attention. Note well what she says there:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.
Sotomayor here explicitly says that she’s not sure whether race, gender, and ethnic differences derive from experience, culture, or “inherent physiological or cultural” differences, and moreover that she’s not bothered by the possibility that the differences may be inherent. As I noted here,
Perhaps some future interrogator can ask Judge Sotomayor to explain what she means by “inherent physiological or cultural differences,” and why she’s not bothered by these racialist notions. In any event, if a cultural difference were somehow “inherent,” wouldn’t that make it physiological and not cultural at all?
Moving on, today’s commentators from the Center (Stuart Taylor) and Left (Richard Thompson Ford) both concentrate on Sotomayor’s role in preserving a robust and continuing influence for the “disparate impact” theory of discrimination. Ford, from the Left, is a big fan of disparate impact and so applauds Sotomayor’s role in defending it in Ricci. Taylor, from the Center, is, predictably, on-the-one-hand, on-the-other-hand conflicted. (I have developed my own unconflictedly critical view of disparate impact in a number of posts, and I’m not going to repeat those arguments now. If you’re interested, look here, here, here, here (be sure to read the comments on this post), here, here, here, and, presciently if I do say so myself, here.)
Ford defends the disparate impact rule as necessary to prohibit “inadvertent” discrimination and to “smoke[] out hidden bigotry.” If “hidden bigotry” is the problem, of course, then the unjustified disparate impact of an employment policy is simply evidence of what is actually a discriminatory intent, not “inadvertent” discrimination.
Ford also displays a troubling penchant for asserting as fact something that is highly controverted and for describing the issues raised by disparate impact as thought sweet reason were all on one side. He asserts, for example, that
New Haven’s decision [not to promote anyone because no blacks passed the promotion exam with high enough scores] may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII.
Both of these assertions — New Haven’s actual motive and whether the test violated Title VII — are matters of highly controversial opinion, not facts. Ford neglects to mention, for example, that the professional testing company that prepared New Haven’s test offered to validate the test, but New Haven refused the offer. Nor did he mention, by the way, that the the three judge panel of the Second Circuit court that ruled in favor of New Haven in a terse, summary fashion, the panel on which Judge Sotomayor sat, also stated that one of the reasons the city set aside the results of its promotion test is that promoting only those who had passed with sufficiently high scores, the 17 whites and one Hispanic, “would subject the city to public criticism.” Does Title VII authorize public entities to engage in racial discrimination in order to avoid public criticism?
Ford argues that “[p]rohibiting tests that needlessly screen out underrepresented groups” is sensible, that without the disparate impact rule an employer could use a hiring test “that screens out a particular group for no good reason,” and that it gives employers ample opportunity
to prove that the discriminatory criteria are job-related. The idea, then, isn’t to make an employer hire less qualified women or minorities over more qualified men or whites. It’s to make sure the employer is testing for job qualifications, not unrelated ones.
Again, I think Ford is guilty of slanted misstatement. Who determines (and by what criteria) that a test “needlessly” excludes some people, that there is “no good reason” for it? Critics of disparate impact do not claim that it is legitimate to exclude a racial, gender, or ethnic group “needlessly” or for “no good reason” by using selection criteria that are “unrelated” to the job. The issue, instead, is how closely the selection criteria have to be to the job, what level of proof is required, and who has the burden of proof. Consider Ford’s examples:
Suppose an employer wants to keep women out. Knowing that he can’t just put a “women need not apply” sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.
First, hidden bias is still bias, and so fails the intent test. In the real world, there aren’t many examples of employers who devise requirements like a weightlifting test out of some abstract, un-job related affection for weightlifting. Almost all the time an employer will argue that the requirement in question is job related, to which those who love disparate impact will invariably reply with some combination of a) no, it isn’t; or b) a claim that the employer must prove not only that the requirement is “job-related” (here is where Ford misstates the issue most clearly) but that it is absolutely essential to the job, that it is a “business necessity.”
In Griggs v. Duke Power Company (1971), the mother of all disparate impact claims, the Court held that Duke Power was not justified in requiring a high school diploma or its equivalent for all new employees because of the disparate impact of that requirement on minorities and its absence of proof that such a requirement adequately predicted job performance for all employees. But how could Duke, or any employer, prove that earning a high school diploma was good evidence of drive, determination, organizational skills, self-discipline, etc. that it valued in employees? Desire to find evidence of those traits in would-be employees is neither “hidden bigotry” nor an abstract fondness for weightlifting.
Finally, consider the following comments from Ford:
New Haven claims that the test it tossed out had a disparate impact. Eight black, 25 white, and eight Hispanic firefighters took New Haven’s test for promotion to captain; three black, 16 white, and three Hispanic candidates passed. Nineteen black, 43 white, and 15 Hispanic firefighters took the test to become lieutenant; six black, 25 white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests.
The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam—no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test. More reason for the city to worry about a lawsuit by the African-Americans who were to be passed over.
Now consider the following from Steve Sailer:
…. On the Graduate Record Exam-Verbal, black college graduates on average score only three-eighths as well as whites (i.e., at what would be the 18th percentile for whites). And that’s their best showing. On the Medical College Admission Test, blacks only reach the one-fifth level.
And yet you aren’t supposed to mention these facts in polite society. As a result, almost nobody thinks about them in a systematic fashion. That’s why the liberal Justices can get away with acting as if the Ricci results, in which blacks scored at the three-eighths level on the Lieutenant’s test (exactly like the GRE-V) and the one-fifth level on the Captain’s test (exactly like the MCAT) are some anomalous mystery which a “better test” could somehow make disappear.
Does Richard Thompson Ford believe the SAT, the Graduate Record Exam, the Medical College Achievement Test, the Law School Aptitude Test all fail the disparate impact test and should be outlawed? If not, why not?
Now, from the Center, comes Stuart Taylor (last encountered on this issue here). Here’s how he sets up the conflict that leaves him, well, conflicted:
Underlying Judge Sonia Sotomayor’s most controversial decision — her vote last year against 18 white firefighters (including one Hispanic) who were denied promotions on account of their race — is a painful conflict between two civil-rights principles that were once seen as complementary.
The first principle is the anti-discrimination ideal embodied by the original 1964 Civil Rights Act and by Dr. Martin Luther King Jr.’s dream of a nation where people “will not be judged by the color of their skin but by the content of their character.” That ideal rejects intentional discrimination against — or preferences for — individuals based on race, creed, color, national origin, or sex, and calls instead for allocating opportunities based on individual ability and effort.
The second principle redefines “discrimination” to include the use by employers of any merit-based tests or other objective criteria for hiring or promotion that have a “disparate impact” on different ethnic groups — as almost all objective tests have.
This, in my opinion, is a false dichotomy. The “anti-discrimination ideal,” i.e., that everyone should be treated “without regard” to race, religion, ethnicity, is indeed a civil rights principle. Indeed, I would argue, it is the civil rights principle. Disparate impact, by contrast, is not a civil rights principle at all. It is, at best, a way of treating certain kinds of evidence, often statistical, as precisely that, evidence (not proof) of discrimination. At worst, which is what it always becomes in the hands of its most ardent defenders, it is a blatant redefinition of discrimination. Under its rough hands, discrimination ceases to be differential treatment of people based on their race, gender, or ethnicity. Instead, the statistically different result alone become both the essence and the proof of discrimination.
Despite what I regard as the flaw of equating disparate impact, which is as I’ve said at best a method of proving discrimination, with a “civil rights prinicple,” the remainder of Taylor’s article is quite impressive. And, contra Ford, he concludes that “the evidence in the New Haven case strongly suggests that racial politics was the city’s main reason for snatching away the white firefighters’ expected promotions, amid intense political pressure to give blacks a share.”
Taylor also usefully reminds us that Sotomayor is not the only Democratic, Hispanic Judge on the Second Circuit.
The other Clinton-appointed Hispanic judge, Jose Cabranes, was so disturbed when he learned of the panel’s curiously “perfunctory disposition” that he sought to have it reconsidered by the full 2nd Circuit. He lost by a 7-6 vote. In a dissent for the six, Cabranes suggested that the case might involve “an unconstitutional racial quota or set-aside.” He added:
“At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”
“Back in 1971,” Taylor believes, “when the Supreme Court first grafted disparate-impact rules onto the 1964 Civil Rights Act, they seemed to complement the anti-discrimination ideal.” But those rules didn’t seem that way to everyone then, nor should they have. Just like busing to achieve racial balance, the simply-count-the-black-faces approach to civil rights always undermined rather than complemented the non-discrimination principle at both the heart and head of civil rights.
Taylor appreciates the fact that “[t]he disparate-impact dynamic has the benefit of expanding opportunities for preferred minorities,” but he also notes that
it also has great costs. It is unjust to high-scoring white and Asian workers; it has greatly eroded the anti-discrimination principle; and it downgrades incentives for students and workers to study and learn — both in school and in rigorous test-preparation courses such as the one that helped some New Haven firefighters improve their skills and do well on the test.
That is a most unhealthy message to be sending to blue-collar families at a time when America’s competitiveness is being crippled by the inferior educations of many of our high school graduates compared with those in other developed countries….
In any event, such reverse racial discrimination will persist — and perhaps become ever more pervasive — for as long as employers fear disparate-impact liability more than they fear liability for intentional discrimination against whites and Asians.
The only problem here is with Taylor’s use of the term “reverse discrimination.” As I’ve argued here many times, there is no such thing as “reverse” discrimination. Discrimination based on race is … discrimination based on race. Nothing “reverse” about it.
Finally, at least for my purposes, Taylor notes that
[p]rofessed fear of disparate-impact lawsuits can also provide excuses for government employers that want to discriminate against white workers. Why would they want to do that? The main reason is identity politics — for which, I argued in my May 23 column [which I discussed here], Sotomayor seemed to exude some sympathy in a 2001 speech.
Indeed, this suggests a question for those like Richard Thompson Ford, who defends disparate impact in part because it can root out “hidden bias” and disguised discriminatory intent. On Ford’s theory, why shouldn’t the white (and one Hispanic) New Haven firemen have a strong disparate impact claim against New Haven for discarding test results on which only whites and and a few Hispanics did well?
ADDENDUM: Criticism Of Another Righty
I saw The Problem of Affirmative Action by the always impressive Megan McArdle too late to incorporate above, but I can’t let it go uncommented. McArdle is a moderate Libertarian who often agrees with conservatives. She writes:
HL Mencken once defined Fundamentalism as “the terrible, pervasive fear that someone, somewhere, is having fun”. I’ve been thinking of this a lot watching some of the attacks on Sotomayor, but I’d frame the critics as suffering from the terrible, pervasive fear that some brown person, somewhere, is getting away with something.
Posit that everything the critics say about Sotomayor is true; that indeed, everything they say about affirmative action is true. Is this the biggest problem facing America? Is this the biggest problem facing America from Sonia Sotomayor?
Given my politics, I am probably not going to like how she rules on many, maybe even most, issues. But almost none of those issues involve racial preferences, which, even if they are a problem, are a small problem for America, affecting fewer people than almost any of the other major policy questions we’re debating today. Making race, or racial politics, the central complaint, makes it seem like your biggest policy priority is making sure that not one minority in the land gets anything they don’t deserve. But hey, we all get things we don’t deserve. I’ll go further: almost all of us get something we don’t deserve as a result of our race, including white people. Perhaps even especially white people.
First, Mencken was referring to Puritans, not Fundamentalists (and no, they are not the same, by a long shot), but that’s not my main problem with her post.
I think she misunderstands, or at least ignores, the most fundamental criticism of affirmative action we critics make. It is not at all a “pervasive fear that some brown person, somewhere, is getting away with something.” It has nothing to do with some people getting something “they don’t deserve.”
Our criticism is not based on a few (or even many) brown people or black people getting something they don’t deserve at the expense of white people or yellow people who do deserve. Our complaint is that the principle that people should be treated “without regard” to their race or ethnicity is, or was until it was trashed by the preferentialists, a core value, a building block, of our society. Thus our complaint against the old system of racially preferential admissions to the University of California is not some number of black and Hispanic individuals received a prize that rejected Asian individuals deserved (although that was the case). It is that racial preference undermines the non-discrimination principle, a fundamental value of our society, and thereby subordinates the individual rights of all to a racial free for all. Being judged as individuals and not by an inherited ascribed status, finally, has been one of the most important things setting the United States off from other societies.
Let me give a couple of examples by analogy of why I think McArdle is profoundly wrong here. First, to be consistent she would have to argue that those who object, say, to religious preferences — for example, to placing a quota on the number of Jews admitted to colleges or professional schools — object only because they would like to see a few Jews get what they “deserve,” instead of those rewards being given to some already over-privileged Episcopalians who undeservedly benefit from the reduced number of Jews who are admitted.
Another example: universities are organizations, even societies, organized around the pursuit of knowledge. Cheating violates a trust that is essential to such organizations. But McArdle’s objection to those who think racial preference violates a fundamental, essential value of American society is as though she complained that those who make a big deal out of academic cheating do so only because they don’t like to see a few students (especially black and brown students) get better grades than they deserve, at the expense of grade grubbers who over time have often gotten better than they deserve.
McArdle is usually so sensible, although she apparently voted for Obama, but not in this post.
The discussion of preferences triggered by the Sotomayor nomination is a good thing. A big question noone addreses is the following. We have had more than 40 years of affirmative action. Yet by all measures, the academic performance of Black and Latino students and their level of college preparation has stayed the same or even reversed. The Black illegitimacy rate is over 70% now starting from about 25% in 1960. The illegitimacy rate is about 50% now for Latinos. Moreover, we have, as admitted by UCLA researchers an educational crisis in the Mexican-American community that is a huge issue since this group is 50% of the K-12 population in California.
This crisis has only rapidly worsened since the 60s despite trying everything from admissions quotas to bilingual education to Chicano studies.
Maybe after 40 years of failure of preferences and multiculturalism it is time to try something different?
John writes:
“Our complaint is that the principle that people should be treated “without regard” to their race or ethnicity is, or was until it was trashed by the preferentialists, a core value, a building block, of our society.”
And one of my complaints with that complaint has been that principle has NOT been a “core value” or “building block” of American Society. It took 178 years to get Brown v. Board of Ed, and 188 years to get the CRA of 1964. If it takes almost two centuries to lay down a “building block”, the “contractors” are in no hurry to see that project completed.
Second, Sotomayor’s statement kind of echoes your core principles, because I couldn’t see a “wise Latina with the richness of her experience” agreeing with the Plessy decision, as opposed to literally dozens of White Male SCOTUS justices, including William Rehnquist.
Third, even you, John Rosenberg, can look on with nodding appreciation at Sotomayor’s record when it comes to the nearly 100 cases involving racial discrimination she’s been involved in.
Revisionist writes:
“Maybe after 40 years of failure of preferences and multiculturalism it is time to try something different?
In 2009, we just watched the first African-American President, a Magna Cum Laude Harvard Law Grad, nominate a Princeton Summa Cum Laude, Yale Law Review Editor to be the first Latina Supreme Court Justice and you don’t think ANY progress has been made since 1969?
…
Remember when you folks used to jump on ME for being pessimistic on race issues? Oh well…
Si Se Puede!
–Cobra
Cobra writes:
“In 2009, we just watched the first African-American President, a Magna Cum Laude Harvard Law Grad, nominate a Princeton Summa Cum Laude, Yale Law Review Editor to be the first Latina Supreme Court Justice and you don’t think ANY progress has been made since 1969?”
…and neither would have been anywhere near their current circumstances without pervasive affirmative discrimination that compensated their lack of merit. Think about it. Sorry, this is not progress, it’s an obamanation.
The comparison with Archie Bunker was truly remarkable. I especially liked how Archie contrasted the special people on the ticket with the “regular American” or, as Sotomayor would say, the “white male” of no significant characteristic. She doesn’t find the “white male” useful whereas Archie does, but otherwise the attitudes were very similar.
VDH on racial identity and their spoils:
http://pajamasmedia.com/victordavishanson/lost-in-the-labyrinth-of-race/
Look to the end of the article to understand McArdle’s likely motivation in the post & in voting for Obama: to feel good about herself.
John,
Maybe the solution will be to resurrect Race Norming, which was eliminated in the 1991 Civil Rights Act. It may be illegal by statute, but has its constitutionality ever been expressly determined? I suggest this only because it became illegal due to the uproar that ensued once the public learned the Federal government was using race norming as a civil service hiring practice. Either the Civil Rights Act could be amended (most likely in the face of serious popular opposition) or as you have noted in the past, the courts could decide that “diversity” is too important a state interest NOT to resume race norming to give govt. necessary tools to achieve diversity. It might be worth putting judges on the spot to deal with that question and see the political fall out. There might even be a “reverse disparate impact” claim, if race norming typically enhances the prospects of only certain groups favored by the practice. But then do we create an infinite loop?
My main problem is that quality is being sacrificed for the sake of affirmative action. She has been chosen mainly because she is a female Puerto Rican, not because she is the best in her field
Is there too much political correctness to admit that some may be superior to others in certain endeavors? Could we accept it if latinas actually WERE better judges than white males?
Indeed, what if whites would make better decisions than blacks? Would we accept that?
What if whites had higher IQ than blacks? What if whites had higher SAT scores than blacks? What if whites scored higher on fire department employment tests than blacks ? (Oh, wait, all that is true….)
Would we accept that? Evidently, Sotomayor would not accept that. Instead, she would claim that data to support these conclusions (like test scores) are “wrong” unless they favor a latina, in which case we should celebrate her “wisdom” that she would bring to her job.
ACF writes:
“…and neither would have been anywhere near their current circumstances without pervasive affirmative discrimination that compensated their lack of merit. Think about it. Sorry, this is not progress, it’s an obamanation.”
The statement above is why people like John Rosenberg–an anti-affirmative action type on principle— will usually, and I would add UNFAIRLY be held suspect by those on the other side of the debate.
Collateral damage.
ACF basically says that it doesn’t MATTER what heights of academic achievement an individual soars. If they aren’t White Males it doesn’t count.
That none of the other anti-affirmative types didn’t challenge this statement–that an individual who came of age fatherless in a South Bronx housing project, was valedictorian of her high school, earned a scholarship to Princeton–(yes, Justice Alito’s Concerned Alumni of Princeton failed to keep her out)–Phi Beta Kappa, Summa Cum Laude, Pyne Prize–earning a scholarship to Yale–Law Review Editor has a “lack of merit” and needed “positive affirmative discrimiation”…
When people like Revisionist and others constantly cite “academic performance” as the bell weather for all things fair, is it that hard for a conscious, fair-minded reader to see through the charade of de-legitimizing minorities who excel academically?
–Cobra
–Cobra
Quote:
[“That none of the other anti-affirmative types didn’t challenge this statement–that an individual who came of age fatherless in a South Bronx housing project, was valedictorian of her high school, earned a scholarship to Princeton–(yes, Justice Alito’s Concerned Alumni of Princeton failed to keep her out)–Phi Beta Kappa, Summa Cum Laude, Pyne Prize–earning a scholarship to Yale–Law Review Editor has a “lack of merit” and needed “positive affirmative discrimiation”…]
In the racial schema of race based AA as it is used today and during the 1970s with racial discrimination against the non-preferred groups favoring the preferred groups in admissions, Sotomayor more than likely is a beneficiary of racial preferences throughout her entire academic (even her summa cum laude honors based partly on her Princeton senior thesis) and judicial life, simply because there were other white and Asian summa cum laude honors graduates with membership in Phi Beta Kappa from Harvard, Yale, and Princeton who WERE DENIED ADMISSION TO YALE LAW SCHOOL, who were even more qualified academically overcoming more obstacles, especially for Asian American immigrants with English as a second language and belonging to the Mongoloid race. Sotomayor belongs to the White race, of Hispanic ethnicity, or Latino, which can be of any race, except Asian. In this demented and immoral game of race preferences, a racially Asian American with generations of his family from Latin America, Cuba, or even Puerto Rico is not classified as Hispanic, whereas Whites and Blacks from Latin America are. How demented is this?
Federal District Court Judge Sotomayor is an Affirmative Action baby, as is President Barack Obama.
The point you, Cobra, missed *totally* is that there are many others who graduated summa cum laude from HYP, the highest Latin honors accorded to the top several percent of each class, who did not receive a race preference for admissions to Yale Law School, especially Asian Americans , the only group who received a non preference because of Asian over representation at Yale Law today, who were shut out of the HYP, and upper tier graduate schools and professional schools with even more compelling obstacles, based solely on their Asian race and they graduated even with *more stellar* undergraduate records. The admissions game is all relative for individuals based on race and ethnic group preferences. This point does not require rocket science to understand. So, what about the ones who were *rejected* by Yale Law School, based solely on race and ethnicity with *more stellar* undergraduate records than summa cum laude from Princeton? I know of a number of Asian American summa cum laude graduates of Yale, with the highest LSAT scores and English as a second language, who were shut out the Ivy League professional schools with stellar academic accomplishments including summa cum laude. Don’t these Asian Americans who were denied solely because of their race even count in your distorted view in favoring race and ethnic group preferences and race based AA in admissions? There are Asian American summa cum laude graduates of the most elite undergraduate colleges in America, who had English as a second language and were not even born in the Bronx, or in America, but came as Asian immigrants, who overcame many more obstacles, such as war, famine, pestilence, and death of family members, including a parent. Many of these stellar Asian American applicants to the top tier schools are discriminated against in admissions with more stellar accomplishments than the individual whom you referred to, yet they were relegated to *lower tier schools* because of the non-preference for Asians.
BTW, some of my son’s Asian American immigrant classmates graduated from Yale College with the *HIGHEST HONORS* with the highest GPAs and the highest MCAT and LSAT scores with absolutely amazing and stellar records by overcoming many more obstacles than any American born, Latino or not, and they were shut out of the top tier professional schools, especially in medicine. The URMs that I know of from Yale, with their profiles, including grades, test scores and holistic backgrounds, race and ethnicity, with similar numbers and backgrounds posted on blog sites on the internet, were admitted to almost *every single school* they had applied to, including all of the top tier.schools. Why should equally qualified or better yet, more qualified Asian American applicants, based on objective admissions standards and especially *holistic criteria* used, be denied admissions in favor of equally and lesser qualified URMs because of race/ethnic preferences?
Just don’t use race and ethnicity as factors in admissions and abolish race based AA. I DO NOT WANT TO KNOW THE RACE AND ETHNICITY OF THE APPLICANT AND THE ADMISSIONS COMMITTEES SHOULD NOT HAVE TO KNOW EITHER. THE COMMITTEES DO KNOW. THEY DO KNOW THE RACE/ETNICITY OF EACH APPLICANT AND IT IS A FACTOR IN THE ADMISSIONS OF EVERY STUDENT ADMITTED, NO MATTER HOW STELLAR THE APPLICANT IS.
Cobra writes:
“ACF basically says that it doesn’t MATTER what heights of academic achievement an individual soars. If they aren’t White Males it doesn’t count.”
No, I didn’t say that. I said:
“…neither would have been anywhere near their current circumstances without pervasive affirmative discrimination that compensated their lack of merit.”
I have had the opportunity (and job requirement!) to have assessed the achievements of many non-white males who earned their position through merit and achievement. Their excellent performance is NOT an oddity – it is commonplace. These people include white women, asians, hispanics, and blacks (!).
Meanwhile, the following is also true. Obama is where he is because of affirmative discrimination at every step of his life, including when he got into college, when he was elected editor of the Law Review, and when guilty white liberals voted him into office. If you have a problem understanding that, then go argue with Geraldine Ferraro and the other million democrats who can figure out “black from white” on this question!
Likewise, Sotomayer is where she is because of her gender and ethnicity. Again, if you have a problem with that, then call the white house and ask Obama why he used gender and ethnicity in making his selection. Hell, Obama’s short list was 85% women.
When you are done learning more about this, get back to us.
E & ACF,
First, I want to thank you both for reinforcing my arguments.
And you know what? I would LOVE to hear from the more…(and I’m really trying to be congenial here)…reality based Discriminations posters about this revealing dialog.
Judge Sotomayor went to the same Universities as Justice Sam Alito (the White Male everybody on Discriminations seemed to LOVE two years ago) and finished with higher grades(2nd in her class, but still not good enough for E) and a Pyne Prize.
Judge Sotomayor’s professional record places her as the most experienced nominee to SCOTUS in 70 years, more than any current Justice on the bench had.
But, since she has the audacity to be a Latina & nominated by a Democratic President, she is not only to be disqualified but subjected to derision and ridicule.
That, John Rosenberg, is why, in nation where the demographics are rapidly BROWNING, the cause of the anti-affirmative types will ultimately fail.
–Cobra
Cobra, the following are comments from a member of the legal profession regarding the Sotomayer nomination. Please add emphasis on the following quotes,
1. “She is, simply, not the most qualified, and it’s pretty hard for anyone to argue that she was not selected due to, or primarily because of her race and gender.”
2. “The highest and most important offices of the land are not supposed to be allocated based on race and gender.”
3. “Judge Sotomayor is simply the beneficiary of a brilliant political effort to win the loyalty and votes of the Hispanic community.”
Cobra, you still don’t get it, do you? Please read the following post.
===========================
In this day and age, no one would oppose trying really really hard to have highly qualified women and minorities appointed to the most important and highest offices of the land.
The problem with the Sotomayor appointment is that it seems to be precisely the type of racial/gender preference-based selection that gives affirmative action a bad name. I’m not saying that she is not minimally qualified to wear a black robe for life (she has, after all, been doing so without making any major or noteworthy mistakes for 17 years, and I think the criticisms of her writing deficiencies are a bit on the trite side). I don’t doubt that she is intelligent, and more qualified than I will ever be. However, I don’t think that anyone could argue that she has distinguished herself relative to the other top tier candidates. I have not seen anyone describe her opinions or work over 17 years on the 2nd Circuit as more than competent, she has a disturbing reversal rate with the Supreme Court, and some of the things she has said would have precluded even consideration for anyone but a Hispanic woman. She is, simply, not the most qualified, and it’s pretty hard for anyone to argue that she was not selected due to, or primarily because of her race and gender.
That is the rub. The highest and most important offices of the land are not supposed to be allocated based on race and gender. Even if people as relatively unqualified or minimally qualified have served on the court before, if someone is the standard bearer or precedent setter for his/her race or gender, they should be unequivocally the best of the best, compared to anyone, by any objective standards. Did anyone doubt or have any reason to question the qualifications of Louis Brandeis, or Thurgood Marshall? Does anyone doubt whether the first Asian American Supreme Court nominee (or the first openly gay justice) will be a legal rock star? No freaking way. Sadly, the ranks of the nation’s judiciary and the legal profession itself does not lack for judges or lawyers of Hispanic origin who are acknolwedged superstars of the profession and field, but they just didn’t pass the ideological litmus test. Jose Cabranes and Miguel Estrada come to mind. Judge Sotomayor is simply the beneficiary of a brilliant political effort to win the loyalty and votes of the Hispanic community.
Signed,
Attorney
Cobra says”
“Judge Sotomayor went to the same Universities as Justice Sam Alito (the White Male everybody on Discriminations seemed to LOVE two years ago) and finished with higher grades (2nd in her class, but still not good enough for E) and a Pyne Prize.”
But Justice Sam Alito is a white male; therefore, he cannot earn his way by being black or hispanic like Sotomayor. She was nominated to be a supreme court justice because she is a hispanic woman. If she had not been a hispanic woman, then she would not have been the nominee.
OK, I’m thinking that you are just being thick on purpose now! Do you really think that she would have been picked if she had been a white male after everything that Obama said about the preferred traits in his nominee?
Here’s a suggestion. Get rid of affirmative discrimination completely. Then, when Sotomayor, or her likes, get something, nobody will claim it is due to affirmative discrimination, right? Are you for that?
E & ACF,
It’s good to know that I can depend on you for backup on this thread. Usually it’s me against everybody.
E writes:
“Cobra, the following are comments from a member of the legal profession regarding the Sotomayer nomination…
…Signed, Attorney”
C’mon…an ANONYMOUS source? You’re kidding again.
You’re almost as bad as Jeff Rosen or Stuart Taylor. When you’re quoting folks who won’t go on the record, you know there’s an AGENDA afoot.
This so-called “attorney” knew better that to sign his or her name to this nonsense, especially with lines like…
“The highest and most important offices of the land are not supposed to be allocated based on race and gender.”
Out of 110 Supreme Court Justices in the history of the America, only 4 have NOT been White Males.
That’s not an accident, E.
E’s mysterious attorney writes:
“Did anyone doubt or have any reason to question the qualifications of Louis Brandeis, or Thurgood Marshall?”
Obviously, this “attorney” didn’t study history.
Thurgood Marshall
Louis Brandeis
And exactly what about Miguel Estrada’s credentials made him more qualified than Sonia Sotomayor other than the fact that he’s a conservative, and has an anti-affirmative action position?
ACF writes:
“But Justice Sam Alito is a white male; therefore, he cannot earn his way by being black or hispanic like Sotomayor. She was nominated to be a supreme court justice because she is a hispanic woman. If she had not been a hispanic woman, then she would not have been the nominee.”
Since there have been only two Blacks, two women and zero Hispanics on the Court in 233 years, I don’t think you can call having White skin and maleness a detriment on this SCOTUS nomination deal.
ACF writes:
Here’s a suggestion. Get rid of affirmative discrimination completely. Then, when Sotomayor, or her likes, get something, nobody will claim it is due to affirmative discrimination, right? Are you for that?”
Nope. As you can see from my links to Brandeis and Marshall, both nominations pre-dated Affirmative Action.
And both nominations were viciously attacked anyway.
That’s the country we live in.
–Cobra
Dear Cobra (Frankly, I really don’t know how to address you, especially to someone named after a snake)
Simply stated;
Judge Sotomayor is an Affirmative Action baby, and is the beneficiary of racial/ethnic group preferences and race based AA during her entire life, especially with her current nomination. You have not given any evidence to disprove this. She is the product of the set of racial and ethnic group preferences that she had advocated for during her entire academic and judicial career, because she is not the BEST qualified, but certainly qualified. Qualifications are all relative. Being qualified does not mean being the BEST qualified.
I believe that we also had this discussion regarding President Obama and I had proven to you and the forum that he is also a race based Affirmative Action baby. If you want, I will provide the link to our discussion, or even better, by posting it again.
Now, the question is whether or not they would have been admitted to their respective institutions of higher learning and its honor societies such as Harvard Law Review, which, as a honor group for Harvard Law students, also uses race based AA and racial preferences or set asides in its membership for blacks.
We may never know the answer to the question, since race based AA and racial preferences are used at every level of higher education at the elite schools and employment today, including judicial appointments.
Even if they were to be admitted without race based AA, there will always be doubt, and rightfully so, with their, and your, advocacy for racial preferences and race based AA.
Bottom line:
Abolish race based AA and racial/ethnic group preferences and there will never be any doubt.
E writes:
“Dear Cobra (Frankly, I really don’t know how to address you, especially to someone named after a snake)”
Funny, I don’t have any problems addressing someone named after a capitalized vowel.
E writes:
“Judge Sotomayor is an Affirmative Action baby, and is the beneficiary of racial/ethnic group preferences and race based AA during her entire life, especially with her current nomination. You have not given any evidence to disprove this.”
Judge Sotomayer has a Latina–a minority female in America. Any REAL student of American history knows that those two characteristics have been more of an obstacle to overcome than a benefit to attain in a nation originally built for the edification of the WMPS.
You have not given any evidence to disprove this.
E writes:
“Bottom line:
Abolish race based AA and racial/ethnic group preferences and there will never be any doubt.
Nonsense. The haves always cast doubts on have-nots when they acheive something. Ask the Concerned Alumni of Princeton.
Mike Bertelone oughtta be taking you to task for your fixation on race-based preferences. According to him, you should have a bigger problem with Sotomayor being a WOMAN.
–Cobra
Cobra said,
>> Funny, I don’t have any problems addressing someone named after a capitalized vowel. > Nonsense. The haves always cast doubts on have-nots when they acheive something. Ask the Concerned Alumni of Princeton.
[…] took issue with McArdle’s views here, especially her notion that critics of racial preferences are “suffering from the terrible, […]