Another Perspective

What If Sotomayor Were White?

Her qualifications would suddenly cease to exist.

By 5.28.09

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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. 

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Andrew Cline is editorial page editor of the New Hampshire Union Leader. You can follow him on Twitter at @Drewhampshire.