Constitutional Opinions

Sotomayor and Affirmative Action

The judge got ahead the old-fashioned way -- so why does she pretend otherwise?

By 7.15.09

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Is Judge Sonia Sotomayor a product of grinding poverty and beneficiary of affirmative action, and now a victim of its unintended consequences? Or has she instead cynically embraced affirmative action and romanticized her past as a way to further her judicial career?

As the confirmation hearing before the Senate Judiciary Committee continues for Sotomayor, President Barack Obama's pick for the vacancy on the U.S. Supreme Court, with a lifetime appointment at stake, a review of the evidence shows she has changed her position on affirmative action and fictionalized her past to serve her own purposes.

First, she was never in the target audience affirmative action was designed to help. Second, while in school she vehemently disavowed affirmative action as playing any part in her educational advancement. Third, as her career played out on an increasingly public stage, she rebranded herself as "a perfect affirmative action baby" and an ardent supporter of racial quotas willing to engage in activist judging—and even ethically questionable judging—to advance that agenda.

Sotomayor's basic résumé is well known. To hear her tell it, she is a product of the "third world" territory of Puerto Rico, raised in public housing projects in the Bronx. She was socially and economically impoverished. She didn't meet admission test requirements at Princeton University and Yale Law School because of "cultural bias" in the testing. But she was accepted at those schools anyway because of affirmative action. Her success has led her to believe ardently in racial quotas.

After a 12-year legal career as a government prosecutor and later in private corporate practice, Sotomayor was appointed in 1992 to the United States District Court for the Northern District of New York, where she served for six years. She was nominated to the prestigious Second Circuit Court of Appeals in 1997 and to the Supreme Court in May. She owes it all to affirmative action, she says.

A closer look at her background tells another story, however. She was born in the United States. The projects in which she was raised, the Washington Post reported, were "pristine," virtually crime-free, and racially mixed. A mere 10 percent of the residents were on welfare. The rest had jobs. Sotomayor's mother was a nurse.

"These were not the projects of idle, stinky elevators, of gang-controlled stairwells where drug deals go down.… Far from dangerous, the projects were viewed as nurturing," the New York Times wrote. "I never perceived myself as a poor child," Sotomayor said in an October 1999 housing authority publication, the Post reported.

Sotomayor's mother valued education above all else, working to pay for elementary and high school education in parochial schools. The family had the only encyclopedia in the Bronx projects, and not just any encyclopedia -- the Encyclopedia Britannica. Sotomayor told the New York Daily News, "I was going to college and I was going to become an attorney, and I knew that when I was ten. Ten. That's no jest."

Sotomayor and her family may not have had much money, but she was not "socioeconomically poor." Children who are "socioeconomically poor" do not aspire to be lawyers.

Sotomayor was valedictorian at her grammar school graduation. She went on to pass the entrance examinations to prestigious and academically demanding Cardinal Spellman High School. She graduated as valedictorian there as well. She won a full scholarship to Princeton University, where she struggled at first with writing and vocabulary and lack of knowledge of the classics. She studied long hours to remedy those problems and graduated summa cum laude. She also won the top prize for academics and extracurricular activities and was a member of Phi Beta Kappa.

She then entered Yale Law School, again on a scholarship. She was an editor of the Yale Law Review and managing editor of the Yale Journal of International Law.

At the time, Sotomayor herself certainly didn't think she owed her academic success to affirmative action. As her law school graduation neared, Sotomayor interviewed for a job with a prestigious Washington, DC law firm. During a dinner, a partner in the firm suggested the only reason she was at Yale was affirmative action. She filed a complaint with Yale, which convened a faculty-student council. After a hearing, the council voted in Sotomayor's favor, and the firm was forced to apologize. She refused any further interviews with the firm.

Yet to hear Sotomayor tell it years later, she is "the perfect affirmative action baby." In a videotape of three female judges discussing diversity, made available to the Senate Judiciary Committee, she said, "My test scores were not comparable to that [sic] of my colleagues at Princeton or Yale." She attributed this to "cultural biases built into testing and that was one of the motivations for the concept of affirmative action, to try to balance out those effects." In May 2009 she told WBUR Radio, Boston, "I am always looking over my shoulder, wondering if I measure up."

Sotomayor's views on affirmative action are important because this issue is receiving increased scrutiny in the Supreme Court. In 2003 the Court ruled in the University of Michigan cases that race can be used as a factor in university admissions decisions but narrowed the lawful extent. Then-Justice Sandra Day O'Connor wrote that affirmative action should be phased out over the next generation.

More recently, the Court ruled in the New Haven firefighters case last month that the city violated the Civil Rights Act of 1964 by discarding promotional examination results because too many whites passed. Justice Scalia suggested the Civil Rights Act is unconstitutional on equal protection grounds, an issue not reached by the majority.

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.

And then, of course, there is the now-infamous excerpt from a speech she delivered in 2001:

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 would 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.

Surprisingly, at Tuesday's hearing, Sotomayor fumbled and bumbled her way through trying to explain this remark -- even though there was never any doubt she'd be called on the carpet about it.

In response to a question about it from Sen. Patrick Leahy (D-Vt.), Sotomayor said she was trying to encourage Hispanic law students. "The context of the words that I spoke have created a misunderstanding, and I want -- and misunderstanding -- and to give everyone assurances, I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging." Apart from the fumbling, this was a bumble: she had said exactly the opposite, not once, but a half dozen times. And who knows what she meant by the "context of the words" creating "a misunderstanding"?

And in response to Sen. Jeff Sessions (R-Ala.), she said she "was using a rhetorical flourish that fell flat….It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge." This is just incoherent. The conclusion is inescapable that Sotomayor believes exactly what she said in her prior speeches and cannot convincingly claim otherwise.

A better message for Sotomayor to promulgate would be for her to urge Hispanics to follow the example she set: Resolve to get the best possible education and work hard throughout your life, and success will be yours. Instead, she has embraced racial politics, which in the end are destructive to the very individuals affirmative action was intended to help.

These views make confirming Sotomayor for the Supreme Court a very risky proposition. There is the risk she would engage in further activist judging, deciding cases on "empathy" instead of legal reasoning. But most of all, there is the risk she would perpetuate racial quotas, with their tragic unintended consequences. That is a foreseeable disaster the Senate should avoid.

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About the Author

Maureen Martin (mmartin@heartland.org), an attorney, is senior fellow for legal affairs at The Heartland Institute.