h[NOTE: Cross-Posted on Legal Insurrection]
A couple of days ago I charitably described Andrew Cohen’s embarrassingly gushing celebration of Justice Sonia Sotomayor and her new book in The Atlantic as “treacly drool.” It is not alone, accompanied now by a full court liberal press (NPR, CBS News, the New York Times, the Washington Post, et al.) to put her forward as the appealing face of affirmative action.
Although Cohen refers to Sotomayor as a “wise Latina” several times, neither he nor most of the other celebrators linked above ever mentions her controversial assertion that preference pushers feared might derail her nomination to the Supreme Court. For those of you who have forgotten, I quoted and discussed her 2002 discussion of “difference” and judging here. In her words:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague [U.S.District Court] Judge [Miriam] Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases… I am also not so sure that I agree with the statement. First, as Professor [Martha] Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life. [Emphasis added]
Sotomayor’s offensive assertion was widely criticized at the time and was brilliantly skewered by Stuart Taylor, Jr., in the National Journal. “So accustomed have we become to identity politics,” Taylor wrote
that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.
Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” — and had proceeded to speak of “inherent physiological or cultural differences.”
If you’ve read my review of Taylor’s and Rick Sander’s recent book, Mismatch, you know that I have a very high regard for their work but disagree with one or two of their conclusions. In a similar vein, after praising Taylor’s article on Sotomayor linked above in Stuart Taylor Skewers Sotomayor’s Identity Politics … Sort Of I offered some extensive but mild criticism, which provoked what I still think is a quite interesting exchange (included in my post) with a thoughtful liberal friend who shares Taylor’s view. I encourage you to read (or better yet, re-read) that 2009 post.
Of the recent Sotomayor celebrators, one who does deign to mention her “wise Latina” remark is Dahlia Lithwick in her long and loving review in Sunday’s Washington Post, which she concluded as follows:
Sotomayor’s memoir may not mollify those who criticized her for once suggesting that sometimes a “wise Latina woman ” might arrive at different conclusions than other judges. But credit her with this: Although she said at her confirmation that what’s in a jurist’s heart doesn’t matter, she has spent her life imagining her way into the hearts of everyone around her.
Lithwick, of course, doesn’t need to be mollified, for she is not now nor has she ever been one of those who criticized the idea that a “wise Latina” has the makings of a better judge than just about any white male.
It is tempting and all too easy to dismiss much of Lithwick’s legal journalism as cute, snappily written, but ultimately frivolous and often even cloying, much in the manner of a mildly talented toddler indulged and allowed by liberally doting (or dotingly liberal) parents to insist on being the center of attention at an otherwise adult dinner party. For example, as I noted here, she acknowledges that “of course chasing religion from the public square is hostile,” but she defends the hostility to religion as “the only means of avoiding a theocracy.” And in “Pick A Chick,” as I discussed here, Lithwick argued for replacing Justice O’Connor with a woman largely because we need a Court that “looks like America” and because Justice Ginsburg needed female companionship on the Court. (See also my post, Should Supreme Court Justices Be Selected On The Basis Of Looks?)
Thus, although as a legal analyst Lithwick is known, as I noted here, “more for the sizzle than the steak of her columns,” her views are so conventionally liberal that it would be a mistake to dismiss her as merely an entertaining writer. Obama, most readers will recall, made “empathy” a “core qualification” for filling any Supreme Court vacancies, and in her Washington Post review linked above Lithwick writes that Sotomayor’s new book “is nothing if not a powerful brief in defense of empathy.”
In a very revealing passage of her review (revealing of both Lithwick and Sotomayor) Lithwick writes:
It is nearly impossible to read “My Beloved World” without comparing it with the only other deeply personal autobiography by a sitting Supreme Court justice, Clarence Thomas’s 2007 memoir, “My Grandfather’s Son.” Each jurist was shaped by early experiences of racism, poverty, family tragedy, affirmative action and persistent self-doubt. Each was essentially raised by a larger-than-life grandparent. Each is a pure embodiment of the American dream. But where Thomas concludes that he triumphed despite the relentless condescension of elitists and racists, Sotomayor argues that she succeeded only because of the patience and generosity of those who helped her along.
Stripped of its “isn’t she wonderful; isn’t he a mean ingrate!” sentimentality, all this passage really says is that Thomas resented being patronized, being held to a lower standard than this peers, while Sotomayor regarded the patronizing standard-lowering as “generosity” that she deserved.
But wait; there’s more:
Thomas eventually came to believe that Yale Law School had “tricked” him. Of his degree, he wrote, “I’d graduated from one of America’s top law schools — but racial preference had robbed my achievement of its true value.”
Sotomayor also encountered cynics who thought she wasn’t smart enough to have been admitted to Yale on her own merits. Her response? “I had no need to apologize that the look-wider, search-more affirmative action that Princeton and Yale practiced had opened doors for me. That was its purpose: To create the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”
Wait a minute here. I thought Sotomayor’s point here was that she was in fact the beneficiary of affirmative action. If so, she was not admitted solely because of her “own merits” but because of a preference she received as a Hispanic. Thus her definition of affirmative action — and Lithwick’s uncritical acceptance of it — as merely a “look-wider, search-more” policy to bring “students from disadvantaged backgrounds … to the starting line” is at best disingenuous. No critics of affirmative action object to it when all it involves is looking wider and searching more; the objection, ignored by Sotomayor and Lithwick, is to racial and ethnic double standards. It is not cynical, in short, to observe that by definition affirmative action admits would not have been admitted but for their race or ethnicity.
Sotomayor’s disingenuousness (at best) and the willingness of the mainstream media to swallow it whole can also be found in the recent New York Times article by Adam Liptak about her book and the success it and he celebrate. At Princeton, Liptak wrikes,
She was part of a vanguard not always welcomed by the old order. In the book, she recalled letters in The Daily Princetonian “lamenting the presence on campus of ‘affirmative action students,’ each of whom had presumably displaced a far more deserving affluent white male and could rightly be expected to crash into the gutter built of her own unrealistic aspirations.”
“There were vultures circling, ready to dive when we stumbled,” she wrote.
She did not stumble….
Indeed she did not, and her successes there and later at Yale are indeed impressive accomplishments. But the above passage nevertheless reveals the disingenuousness that seems pervasive in most justifications of affirmative action based on the justifier’s personal success. Her assertion that her admission displaced — or was widely thought to have displaced — “a far more deserving affluent white male” is simply self-serving baloney. It is far more likely that she displaced a far more qualified Asian, who might well have not been affluent and not been male as well as not being white and who, like her, might well have been brought up in a home where English was not the first language. And even if the person she displaced because of her ethnicity were white, there is no guarantee that she was not female and poor.
Although Sotomayor did not stumble, that passage also reveals utter obliviousness — on her part as well as Liptak’s — of the by now well documented mismatch effect that indeed does result in large numbers of preferentially admitted minorities clustering at the bottom of their classes, leaving school in disproportionately high numbers, and failing or scoring poorly on post-graduation tests such as bar exams. What is cynical is ignoring this evidence.
Indeed, what is perhaps most striking about contemporary defenses of affirmative action — on the part of both its beneficiaries like Sotomayor and their enablers — is their refusal even to describe it as it really is. Thus Sotomayor and Lithwick see it as no more than an extra diligent search, with no notice of the lowered standards and the devastating cost of admitting so many students into programs where they in fact can’t, and don’t, keep up. Liptak and the New York Times see only over-privileged “affluent white males” asked to step aside and make way for the virtuous and deserving Sotomayors.
In my recent post on Sotomayor, The Wise Latina Speaks, And A Liberal Drools (cross-posted here), I quoted The Atlantic‘s Andrew Cohen’s similar tendentiously silly notion that “the essence of affirmative action” is imagining “someone else’s point of view,” as though black or brown skin is a valid proxy for “point of view.” With that paen to skin-deep “diversity” in mind, perhaps someone could point me to a Sotomayor opinion that her “wise Latina” experience made it impossible for any of the other three liberals and/or two women on the Court to write.
Speaking of “diversity” on the nine-member Supreme Court, Sotomayor not only is one of four liberals and three women. She is also one of six Roman Catholics. The other three Justices are Jewish, meaning there are no Protestants on the Court, just as there are no Asian-Americans (and never have been) and no white Southerners or Westerners of any color. Like two other Justices, Sotomayor graduated from Yale Law School. Of the rest, five graduated from Harvard and one, Ruth Bader Ginsburg, attended Harvard but transferred to Columbia to be with her husband. Sotomayor is also one of four Justices from New York City, but there is no “over-representation” because each of the four is from a different borough, leaving poor Staten Island currently under-represented.
Maybe Obama can fix that with his next “diverse” appointment.