Take everything that is known about Sonia Sotomayor and change
three factors — her race, sex, and family’s initial
socioeconomic status — and the points cited in praise of her
selection would be diminished by more than 50 percent. The
complimentary commentary would be reduced to: Mr. Sotomayor
graduated summa cum laude from Princeton and has had a breadth of
experience over his lengthy legal career. That’s it.
The New York Times editorialized
on Wednesday that “Based on what we know now, the Senate should
confirm” Sonia Sotomayor so she can join the U.S. Supreme Court
by the time its new session begins this fall. What, one might
wonder, do “we know now”?
According to the Times, Sotomayor “has an impressive
judicial record, a stellar academic background and a compelling
life story. Judge Sotomayor would also be a trailblazing figure
in the mold of Thurgood Marshall, becoming the fist member of the
nation’s large and growing but still under-represented Hispanic
population to serve on the court.”
Trailblazing? Thurgood Marshall was appointed to the Supreme
Court in 1967. That same year the University of Kentucky became
the first Southeastern Conference school to field an integrated
varsity football team. The Voting Rights Act was passed just two
years earlier. Marshall, who received numerous death threats, was
appointed in an era in which the murder of blacks who challenged
the white establishment was not uncommon — Martin Luther King
Jr. was murdered the year after Marshall joined the court.
Sonia Sotomayor? She was born the year Thurgood Marshall helped
win the Brown v. Board of Education decision, which
didn’t apply to Hispanics because Jim Crow laws didn’t apply to
Hispanics. Sonia Sotomayor might have been discriminated against
in her life, but she never suffered the pervasive institutional
discrimination Thurgood Marshall did, and as far as the public
record shows the only bigotry she has experienced is the soft
bigotry of low expectations being applied to her right now.
Of the nine paragraphs in the New York Times
endorsement, five mention her race and sex. Were Sotomayor a
white male, the Times would have 55 percent less to say
about him.
Washington Post columnist Ruth Marcus
wrote yesterday that Sotomayor was “Souter with a salsa
beat.” Because Sotomayor is Hispanic we can assume she comes
“with a salsa beat”? How is that not an ethnic stereotype? What
if Sotomayor doesn’t like salsa music? If she were black, could
we say she is Souter with a hip-hop beat?
Marcus writes:
[T]he arguments for picking Sotomayor were awfully strong. Her
life story is compelling in a way that mirrors Obama’s own
amazing trajectory the child of Puerto Ricans, rising from the
public housing projects of the Bronx to the pinnacles of the
legal profession, overcoming adversity (childhood diabetes, the
early death of her father) along the way.
She brings an impressive breadth of credentials and experience,
from the grittiness of the Manhattan district attorney’s office
to the rarefied precincts of intellectual property law to the
nuts-and-bolts of a trial court judge.
And the obvious attractions, both symbolic and practical, of
having the first African-American president name the first
Hispanic to the high court were not lost on Obama. The
Sotomayor choice, of course, satisfies an important Democratic
Party constituency; if health care and climate change end up
eclipsing immigration reform this year, a Hispanic justice can
help reduce the grumbling.
You didn’t miss the mention of quality court decisions Sotomayor
has written. There wasn’t one. In fact, Marcus names only a
single Sotomayor decision, and then to criticize it. But she’ll
be happy with Sotomayor on the court, she concludes, because
she’s Hispanic and is expected to vote like David Souter. Would
Marcus support the nomination of a white man who votes like
Souter? One suspects she would find fault with the selection of a
candidate with a pale-hued penis.
The New York Times goes further than Marcus, actually
endorsing Sotomayor for the court without naming a single
decision she has written. Instead, the Times gives this
sweeping assessment:
In her rulings, Judge Sotomayor has repeatedly displayed the
empathy Mr. Obama has said he is looking for in a justice. She
has listened attentively to, and often ruled in favor of,
people who have been discriminated against, defendants and
other groups that are increasingly getting short shrift in the
federal courts. She has shown little patience for the sort of
procedural bars that conservative judges have been using to
close the courthouse door on people whose rights have been
violated.
But name a single Sotomayor decision the Times does not
— almost certainly because it cannot, with the possible
exception of Ricci vs. DeStefano, in which Sotomayor
decides against white firefighters who had their promotion exam
results tossed out because no black applicants scored high enough
to receive a promotion. There is no legal reasoning from that
decision to praise because Sotomayor and the other judges refused
to explain their ruling. But the Times is happy that
Sotomayor ignores “procedural bars,” which is another way of
saying “the law.”
The New York Daily News actually seems to know
Sotomayor’s record. Its
editorial praising Obama’s choice cites several Sotomayor
rulings, and not just the two most noted ones, Ricci and
her injunction in 1995 that ended the Major League Baseball
strike. But the Daily News is the exception. Most of the
praise of Sotomayor is being dished out by commentators who seem
ignorant of her record, but acutely aware that she is a Hispanic
woman who grew up in a housing project.
The Los Angeles Times, in an
editorial far more thoughtful than the New York
Times’ offering, nonetheless urges Sotomayor’s confirmation
despite the fact that her only ruling mentioned in the editorial
is the Ricci decision, which the Times itself
has questioned. But of course, the Times gushes about
Sotomayor’s ethnicity and personal story.
Were Sotomayor a white male who grew up in economic comfort, but
who had exactly the same legal experience and judicial record,
would the praise of Obama’s choice be so widespread and so
fawning? Not a chance. More likely, these same writers would find
Sotomayor lacking in qualifications. And that says a lot, none of
it good, about how the left views the role of the courts in this
country.
