Constitutional Opinions
Sotomayor and Affirmative Action
The judge got ahead the old-fashioned way — so why does she pretend otherwise?
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Sotomayor’s role in the Second Circuit Court of Appeals decision in the New Haven case, reversed by the Supreme Court, was branded by six of her Second Circuit colleagues as judicially underhanded. Sotomayor was part of a three-judge panel on that court reviewing the appeal of the lower court opinion tossing the mostly white firefighters’ case out of court. The panel affirmed the lower court opinion but did so in one paragraph that merely adopted by reference the lower court’s 48-page opinion.
Courts of Appeal typically summarily affirm only in routine cases not involving novel or important issues. Such per curiam rulings signal to the Supreme Court that the appellate panel believes the lower court results are not worthy of further appellate review. It is highly unusual for such rulings to be issued in important cases such as the New Haven one.
The firefighters petitioned for a rehearing by all 13 judges in the Second Circuit. This en banc petition was denied by a margin of 7-6. The dissenting opinion noted the sleight of hand in the Second Circuit panel’s treatment of the case:
It is arguable that when an appeal raising novel questions of constitutional and statutory law is resolved by an opinion that tersely adopts the reasoning of a lower court—and does so without further legal analysis or even a full statement of the questions raised on appeal—those questions are insulated from further judicial review. It is arguable also that the decision of this Court to deny en banc review of this appeal supports that view. What is not arguable, however, is the fact that this Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review.
Fortunately, the Supreme Court took the case and reversed the Sotomayor panel’s decision.
At her confirmation hearing on Tuesday, Sen. Herb Kohl (D-Wisc.) asked Sotomayor if she agreed with Justice O’Connor’s statement in the Michigan cases that affirmative action should be phased out. Sotomayor’s response was very troubling.
She said that the need for affirmative action is “always, first, a legislative determination.” She went on to state that the 14th Amendment to the U.S. Constitution guarantees equal protection to “all citizens.” This misstates the proper role of the U.S. Supreme Court. If, as Justice Scalia suggests, the Civil Rights Act is unconstitutional on equal protection grounds, then it is flatly illegal for a legislature to determine the need for affirmative action.
Even more troubling is her statement that “equality [under the 14th Amendment] requires effort” and sometimes racial preferences are needed to ensure equality. This is an activist judge’s misreading of the U.S. Constitution, which says all citizens should be treated equally, not that some citizens must get preferences on racial grounds in order to be equal.
As noted, this equal protection issue was raised by the New Haven firefighters, but Sotomayor, as part of the per curiam opinion panel, didn’t see fit to discuss it in that case in the Second Circuit. It would be elucidating for the Senate Judiciary Committee if she had gone on the record in a judicial opinion in that case.
Even before the New Haven case, Sotomayor was under fire for her involvement with the Puerto Rican Legal Defense and Education Fund, a group that won “quota promotions” for blacks and Hispanics by suing government entities alleging discrimination, according to the Wall Street Journal. Sotomayor was on the board of directors of that group from 1980 through 1992 and served as vice president and chairman of its litigation committee throughout that time. She resigned from the group when she went on the federal bench.
The problem with affirmative action is that it brands all minorities who are admitted to universities—or those who win job promotions without overt testing requirements—as potentially inferior to whites. No person of color can ever be entirely sure whether he or she is advancing on merit or because of race.
Perhaps that’s what happened in the case of Sotomayor. At the pinnacle of her academic career at Yale, at the recruiting dinner, and following a truly distinguished academic record, perhaps she was loathe to believe it was attributable not to her hard work but just to the accident of the race in which she was born. Perhaps as years passed in her legal and judicial careers, a lingering doubt grew to dominate her thinking—that without affirmative action, she never would have succeeded.
If this is true, it is a tragedy. It is a good reason to abolish affirmative action, for it is doing more harm than good.
Or perhaps, as she advanced through the judiciary, Sotomayor realized she could move further by wrapping herself in the flag of affirmative action. If that was her conscious though cynical choice, she would not be the first person to sacrifice principle on the altar of ambition.
We can only take her at face value, however. What she went on to say at the videotaped conference on merit selection warrants consideration: “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.
Letter to the Editor View all comments (42) | Leave a comment
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Robert Rosencrans| 7.15.09 @ 8:06AM
Sotomayor claims she is looking over her shoulder wondering if she measures up, and she should be looking over her shoulder, because deep down inside she knows she is the illegitimate off spring of government mandates.
And it isn't just Sotomayor. An honest question would ask how many businesses have shut down or been crippled trying to create pearls out of swine? How many businesses have fled America to locate oversesas where they don't have to worry about employee treachery, vis a vis the Lily Ledbetter law?
The honest answer to these questions won't be found in our society. Anyone who brings them up is either a glutton for punishment or simply pushed to the outer rings of the circle.
In the meantime we will have our first manufactured human being on the Supreme Court.
Sotomayor has acknowledged the reality of her situation, living and reveling in a racist lifestyle, guaranteed by the federal government.
And there are millions of citizens like her, guaranteed a brass ring. The fact that she brags about it is further evidence that she is simply another stuffed shirt in Washington, who has achieved elitism, if nothing else.
Anthony| 7.15.09 @ 10:58AM
This "cultural bias" thing; how do the rest of us get in on this action? I'm a product of the projects in the Bronx, I don't remember having the complete works of Shakespeare in our apartment. Milton was that funny "uncle" on Thursday nights. The only "Yale" we knew was the lock on the apartment door.
As far as looking over my shoulder, it sure as hell wasn't to see if I measured up, but rather, if I was fast enough.
And we call ourselves a "post racial society"? What a load of.......
Michele San Pietro| 7.15.09 @ 12:54PM
"Affirmative action" is simply racism on the opposite. It shoud simply be abolished. This Sotomayor is simply living on another planet.
Marc Jeric| 7.15.09 @ 1:38PM
Let me apply the vicious language used by the left on the subject of Sarah Palin ("slutty stewardess looks with 14-year old daughter knocked up") on La Sotomayor: pig-face racist with lipstick.
Marcell| 7.15.09 @ 1:55PM
I don't believe in cultural bias in test.
I have learned from my own experiences that many of us speak poor English, & that explains why many feel that there is a cultural bias in entrance exams. IMHO, that is a poor excuse to dumb down the exams.
I, as well as, many in the poor communities speak & write broken English on a daily basis. It is something I inherited from living around so many people who haven't mastered the king's English, & me not seeing the value of knowing how to use proper grammar when I was a kid... Something I also inherited from being raised in poor communities.
I can remember showing my Republican teacher my blog, & a few days later she told the students in our class to not give credibility to anything they read, if it is filled with grammatical errors.
My liberal journalism professor said something similar when I spoke about my blog; the lesson was about blogs.
Another student spoke about her fear of using poor grammar in a blog. I then explained to my peers that my thread, How to Win in a Debate with a Republican, was filled with grammatical errors, but I still post them, because I believe the info was important.
My instructor responded by saying that she refuse to read things filled with grammatical errors.
I then responded by asking her, " Why do I have over a 15,000 hits & average over 100 hits a day?"
She then blamed it on the topic & the site were the thread was created, but I didn't let her criticism deter me.
With that said, the only cultural bias that I see in college entry exams is, I mean are, the biases of the people who are claiming cultural bias.
Most poor people DO aspire to be a professional like a lawyer or a doctor, but they are easily discourage because they use poor grammar when they speak (That is just one of many reasons).
It is my belief that poor grammar is mainly entrenched in minority communities, because the typical American despises constructive criticism. Our feelings seem to get hurt when we are given good advice. Many would rather dwell in ignorance than allow constructive criticism to attribute to helping them get out of their ruts.
I personally am so determine to be more than a, as Old Texican put it, a "Gubment worker" that I am willing to learn & fight through the destructive & constructive criticism that attributes to why many give up & take on a life of crime, or find virtue in their dead end jobs.
Sotomayor may, or may not be a, I mean an affirmative action baby, but what she has accomplished in her life is impressive, so I honor her for her determination & hard work.
On the other hand, you Repugs are so twisted that it doesn't matter how Sotomayor got to were she is in life; all that matters is that she was nominated by the President you hate with passion.
IMO, The, I mean, the only difference between on the job training & affirmative action is, one is for all Americans, & the other forces bigots to admit or hire those they despise for their inherited dense reasons.
I would like to conclude with a metaphor. I was watching a cartoon (Spiderman) with my son this weekend. There was a scene that showed an old unsuccessful scientist who invented a great contraption. The patent was stolen by his boss, because his boss thought that the scientist was old & considered a failure by his peers. His boss told him that no one would believe he invented the contraption because he had a history of being a failure.
I guess that is life, right?
erro
jr| 7.15.09 @ 5:24PM
Thanks to the article I have learned Sotomay---or was awarded scholarships but it doesn't really answer my question as to who paid for it. I conclude - I paid for it with my taxes since I have been paying through the nose for colleges to award these types of scholarships. Afirmative action! Same as Obamamama, the Prez without a country. I thought she graduated from one of them suma cum laude but the article indicate she agreed that her school scores were not among the better ones. I suppose that like the As and Bs schools, she got a boost. A good match for the looks of the ACLU Justice Goonsberg.
ben| 7.15.09 @ 6:31PM
if favoring race A over race B is wrong, then favoring race B over race A, even for noble intentions is also wrong.
The problem with Sotomayor is that she has lied repeatedly throughout her career as well as these hearings. If she is willing to lie under oath then how can she expect or require those testifying before her to be honest?
Just like duh-bama, she has no principals, character or integrity. She's willing to do and say anything to get what she wants. The ends justify the means.
Art C| 7.15.09 @ 6:40PM
While it may or may not be important, I am more concerned about Judge Sotomayors flip-flopping
on the issue whether she was an affirmative action creation. I grew up in the Bronx, my dad was a Bronx patrolman, my mom a housewife. I lived in a tenement. I went to Cardinal Hayes High on which Spellman was academically built . I continue to be seriouly unimpressed with her background. There are truckloads like her.
ben| 7.15.09 @ 6:44PM
Marcell| 7.15.09 @ 1:55PM
I would like to conclude with a metaphor. I was watching a cartoon (Spiderman) with my son this weekend. There was a scene that showed an old unsuccessful scientist who invented a great contraption. The patent was stolen by his boss, because his boss thought that the scientist was old & considered a failure by his peers. His boss told him that no one would believe he invented the contraption because he had a history of being a failure.
I guess that is life, right?
------------------------------------
No, that's a cartoon. In the real world an inventor would have all the work and failures that led up to the successful product to prove his ownership of the invention. Also, if he was an employee of the company and created his invention through company mandate and on paid company time then the company owns the patent and he has no rights to it. This is why comparing cartoons to real life is a waste of time, energy and an indication of the competency of the individual making the comparrison.
Wes| 7.15.09 @ 7:06PM
Here's a question I would like a Republican senator to ask Judge Sotomayer:
Judge, let's say you are deciding a case brought by a minority woman where a company is accused of hiring only white males.
Now lets say that the company's only defense is that in their opinion white males make better business decisions then black or Latino women- hence their hiring policy.
Would you be inclined to rule in favor of the defense?
Marcell | 7.15.09 @ 7:24PM
I may not know anything about patent & inventions, but I do know about the music & copy right, & it is common for music companies to steal their artist ideas & products.
The rap artist, Tupac is a classic example of how a person with talented can be used & played like a sucker by powerful people who are more familiar with the in & outs of the music business.
Might I add that you probably don't have a clue why I added the metaphor to that post, & I didn't, & don't expect you to know.
Marcell| 7.15.09 @ 7:50PM
if favoring race A over race B is wrong, then favoring race B over race A, even for noble intentions is also wrong.
*****************
I really would like to know what was a better solution for dealing with many of the ills that women & minorities lived with back in those days?
I have been giving example after example of racism by both sides & the conservatives at this site have blatantly ignored the racism by conservatives.
The same would be true if the federal gubment wouldn't have intervened & created the policies most of you despise.
It makes it seem like you despise the policies that the feds concluded were the remedies for racism more than you despise racism, & that is why it is easy for people like me to call you bigots & bigot lovers.
Here's one!!
If you are not part of the solution, then you are part of the problem, & I don't think you are part of the solution when you ignore racism.
if favoring race A over race B is wrong, then favoring race B over race A, even for noble intentions is also wrong.
*****************
I really would like to know what was a better solution for dealing with many of the ills that women & minorities lived with back in those days?
I have been giving example after example of racism by both sides & the conservatives at this site have blatantly ignored the racism by conservatives.
The same would be true if the federal gubment wouldn't have intervened & created the policies most of you despise.
It makes it seem like you despise the policies that the feds concluded were the remedies for racism more than you despise racism, & that is why it is easy for people like me to call you bigots & bigot lovers.
Here's one!!
If you are not part of the solution, then you are part of the problem.
ben| 7.15.09 @ 8:13PM
How 'bout we just treat people as equals (the same) regardless of race, gender etc. Of course there were times in the past when this wasn't happening, but we currently have laws against discrimination, as well as laws that discriminate for the benefits of certain peoples. The laws that discriminate should be thrown out. If we keep telling people that they're victims then they will behave as such. If we keep grouping people by race, gender etc then we are promoting division. If we keep treating people unequally then we are fostering inequality. Discrimination should be punished when it happens, but the fact that it happened in the past doesn't justify using it again today. - 2 wrongs don't make a right.
I also don't ignore racism as you contend. It isn't near as prevalent in todays society as it was in the past. Again, committing racism now doesn't eliminate it from history, nor does the history of racism justify committing racism today.
You are arguing that racism is wrong as it was done in the past. But because it was done in the past, that makes it right today.
I agree that you if you are not part of the solution then you are part of the problem - you don't seem to understand that you are creating the same problem and calling it the solution. - stupid is as stupid does.
Wes| 7.15.09 @ 8:56PM
Next time I'm watching a spiderman cartoon instead of with my son (you know, to ferret out any creeping racism that might cloud his callow mind) I think I'll ask him if he would mind very much giving up much sacrificing a great deal of his leisure time, studying hard, excelling at school, and then eventually giving up his seat at a prestigious university so that some nameless stranger with poorer grades, fewer accomplishments, and less ambition can take his place to atone for the misdeeds of some other nameless stranger he's never met.
Might just inspire him to work even harder as he contemplates our inherited (meaning white- I'm guessing) dense reasoning.
Or maybe not.
JimE| 7.15.09 @ 10:00PM
Marcell, please shove your cut and past jibberish posts into your obama friendly rectum.
Jeff | 7.15.09 @ 11:59PM
All of you sound ignant.
M. Steele| 7.16.09 @ 12:23AM
Does anyone really care that firefighters are all racists? I don't. They should be able to chose which houses they save. And only white people should advance in that career choice.
God damn these liberal ACORN mother fuckers.
Hey Wes | 7.16.09 @ 5:44AM
Today I found out my daughter didn't qualify for the sumer youth jobs program, because she wasn't one of the kids with special circumstances. She don't have a criminal record, & her grades in school are too good for her to qualify for the program.
I said to my wife that now you see why the Repubs feel the way they feel about those programs.
We started talking about the programs for the poor like the lunch program. I was just looking at the issues from a conservative perspective, but it made no sense, because we prefer our daughter to not qualify for those programs than live with the ills that a parent would have to deal with by having a kid that does qualify for those programs.
It is as if you are looking for a scapegoat; you refuse to look at the bigger picture, because you allow your prejudices to get in your way.
Wake up & smell the roses, because it aint that rosy in the concrete jungle.
By Marcell
Wes | 7.16.09 @ 11:36AM
Marcell,
Blaaa...blaaa....blaaa....Let me explain it so that even those of us who consider Spiderman and Harry Potter great literature (yeah, much like your website these two works attract lots of attention, usually by adults who are still stuck in a 4th grade reading level) ....
Any parent who willfully and purposely sacrifices the his child's future in the name of some nebulous, corrupt and dishonest system of quotas or set-asides in not only acting irrationally and selfishly... he is acting immorally!
Period.
Test Test| 7.16.09 @ 11:39AM
"This "cultural bias" thing; how do the rest of us get in on this action? I'm a product of the projects in the Bronx, I don't remember having the complete works of Shakespeare in our apartment. Milton was that funny "uncle" on Thursday nights. The only "Yale" we knew was the lock on the apartment door.
As far as looking over my shoulder, it sure as hell wasn't to see if I measured up, but rather, if I was fast enough.
And we call ourselves a "post racial society"? What a load of....... "
OH BOOO HOOO HOOO. And baloney.
First of all, you didn't invent these phrases. "The only yale...etc." That can only be said by someone who has heard of the other Yale; the phrase was invented by race-baiters, not by ghetto-dwellers.
I scored in the 99th percentile on my SATS. I did not get any scholarship money and did not attend Ivy League schools. I worked throughout college as a telemarketer because I attended school in a small Midwest town, dominated by three things--corn, fast food, and telemarketing firms who were there for our "central" Midwest accents. A few tech companies showed up and folded once in awhile, and I worked as a programmer for a few of them.
In fact, I had been programming since age seven, and had won several contests at both the high school and the college level. Had I grew up as a "disadvantaged" Bronx minority, not only would my SATS DEFINATELY gotten me a scholarship, but much higher paying work would have been available to me a subway ride away--in new york city. Needless to say—higher paying work allows college kids to spend more time focused on school.
You think bronx youths are disadvantaged? Try finding a programming job in the middle of a cornfield.
I am very, very, sick of these types of arguments. Life is rough on everyone; one shouldn't have to prove disadavantage to get a fair chance.
Oldefarte| 7.16.09 @ 1:49PM
The CRA and affirmative action are FRADULENT. In 1954's Brown vs. Bd. of Ed., the availability of our public school system was granted to EVERY child, regarless of race; and thereafter they all received the same teachers, texts, classrooms, computers, etc. Test scores divided among racial lines show a vast [but narrowing] disparity since 1954 to present. The CRA and affirmative action destroys the personal innitiative and individual intelligence for racial parity, should never have been instituted and should be eliminated!!!!!!!!!
Test Test| 7.17.09 @ 2:32AM
"Today I found out my daughter didn't qualify for the sumer youth jobs program, because she wasn't one of the kids with special circumstances. She don't have a criminal record, & her grades in school are too good for her to qualify for the program."
No one qualifies for Affirmative Action based on having a criminal record. They qualify based on race and ethnicity, which are used as a proxy for actual disadvantage.
And the key words in that sentence--"as a proxy"--are very telling as to who actually benefits from an affirmative action. The most likely beneficiaries in programs that choose the highest scoring of a disadvantaged group--are the most advantaged of that group. Depending on the size of the disadvantaged group, the standard deviation of wealth within this group, and the amount this group is disadvantaged on average--the most advantaged could easily be upper middle class individuals--even wealthy. Barack Obama often tells of his past, but he omits many details. He did grow up as a single child to a nomadic anthropology professor, and her frequent moves made his life difficult. Nevertheless he was still born to a professor; one who made a decent salary and valued education highly. That, combined with his race, made him eligible for scholarships that other single-parent kids were ineligible for. From a very early age he had a top-notch education. He never was disadvantaged, but he benefited greatly from liberals who falsely assumed from his race that he was.
"I said to my wife that now you see why the Repubs feel the way they feel about those programs."
Republicans assume, correctly, that using race as a proxy for disadvantage produces inaccurate results.
"We started talking about the programs for the poor like the lunch program."
Everybody is eligible for the school lunch program--that is why few people object to it.
"I was just looking at the issues from a conservative perspective, but it made no sense, because we prefer our daughter to not qualify for those programs than live with the ills that a parent would have to deal with by having a kid that does qualify for those programs."
Most affirmative action babies aren't facing social ills. They merely have the same skin color as someone else who faces those social ills. That's the problem with using race as a proxy for disadvantage. The correlation is there, but it's weak.
If we handed out welfare checks in the same way that we hand out Affirmative Action benefits, Michael Jordon would be collecting welfare from a high school teacher in Boise.
"It is as if you are looking for a scapegoat"
Since 40% of the population (60% in New York and California) is eligible for Affirmative Action--you don't have to look very far to find this scapegoat. Rather than suggesting we're looking for a scapegoat, perhaps the more honest analogy would be this: the goat has grown up, and now it's stepping on us. It would be impossible not to notice.
"you refuse to look at the bigger picture, because you allow your prejudices to get in your way."
We have no prejudices. We simply want more honesty and transparency regarding a policy that asks us to give up 40% of all available opportunities in the name of equity. If equity is not being achieved by using a chromameter to determine economic disadvantage, perhaps more efficient measurements exist.
"Wake up & smell the roses, because it aint that rosy in the concrete jungle." As if a white people never lived in the city--or in the ghetto. Maybe it's time you realized that the wild and arbitrary assumptions you make to justify raced-based preferences are becoming more and more out of date. Disadvantaged minorities are increasingly becoming a misnomer--they are no longer very disadvantaged, and they are no longer a minority.
Ibis| 7.21.09 @ 12:58AM
I know the topic is race and whether Sotomayor benefitted from Affirmative Action and her beliefs. Let's not forget that also class in the halls of prestigious universities plays a role in the admissions process. Affluent mediocre students through their donor parents' connections or through legacy points receive admission preference over a socio economically poor high achiever. Many even in our government, and one former president, GW Bush benefitted gained entry through legacy and their priviledged background. Let's not be so quick to use the racist label but instead examine the bigger picture - our society. Class can often trump race. How much does merit really account for in these schools anyways where affluence talks. Bush was a proud "C" student. He received preferential treatment and gain acceptance to Yale yet would he have ever made it through the doors if it were by merit alone? We seem to accept that, but not when it comes to race often times. I feel affirmative action and the quota system are two different things but still archaic ideas and should be abolished and those who work hard should be rewarded. But the class system will assure that things don't change too much for those with money and many are white. And money means better schooling early and possibly success later.
I think Sonia is a brilliant example of someone who was given an opportunity to attend the finest schools and she worked hard, aimed high and achieved what she wanted. Sonia's unique life experience naturally affected her view regarding equality and racial imbalance I imagine, and yet her experience is valid as is Michelle O's in the Ivy League. The New Haven case was one I disagreed with her on and she's now been taken to task for it. I hope she will show good judgement and uphold the law as SC justice. I think she knows now what is expected of her.
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