April 23, 2014

How does Sonia Sotomayor really feel about affirmative action?

Instapundit calls attention to Sonia Sotomayor's dissent in yesterday's Schuette case. He links to James Taranto's "First Among Equals: An Orwellian dissent from a muddled ruling" and to my post "The way to get a concurring opinion out of Chief Justice Roberts is to rewrite his famous aphorism." I'd counted 11 repetitions of the phrase "race matters" within a short segment (4 paragraphs) of Sotomayor's very long dissent, and Instapundit quips: "She also repeats the phrase 'race matters' a lot. But then, it does. It’s how she got her job."

You might think, as I initially did, it's wrong to degrade a particular individual's status by saying they only got it through affirmative action. How many times has Clarence Thomas expressed his outrage at that kind of abuse? But then I happened upon The Washington Post's treatment of the Sotomayor dissent (by Robert Barnes) and saw this:
Sotomayor, 59, has spoken extensively about how affirmative action was key to her rise from a public housing project where her parents spoke only Spanish. The search for minorities to diversify student bodies in the 1970s won her invitations and scholarship offers from Ivy League schools she had only just learned existed.

She excelled at Princeton, winning the top undergraduate prize, and went to Yale Law School. But she has drawn diametrically different lessons about the experience than Justice Clarence Thomas, the court’s only African American, who said affirmative action cheapened his Yale Law degree.
So I guess the Instapundit gibe bounces off Sotomayor and hits Clarence Thomas. And why not? Sotomayor is going to vote to uphold affirmative action, even as Thomas consistently votes against it. (Doesn't "vote" look wrong there? Is it too late or too prissy or too unrealistic to say we should scrub "vote" from our speech about the judicial work that's done in group-project form?)

But — as Barnes detected (combing through the 58-page dissent) — Sotomayor has arrived at an aversion to the term "affirmative action." As Barnes puts it:
She even wrote that she was not going to use the term “affirmative action” because of its connotation of “intentional preferential treatment” such as quotas, because the court has outlawed such practices. Instead, she called it a system of “race-sensitive admissions policies.”
She even wrote… What is the function of "even"? Barnes credits Sotomayor with enthusiasm for affirmative action, then encounters her rejection of the term and substitution of a euphemism. The word "even" implies additional enthusiasm, not its opposite. I found that a bit puzzling. Here's the relevant text from Sotomayor's opinion, at footnote 2:
Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in Grutter v. Bollinger, 539 U. S. 306 (2003) . There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with Grutter, colleges and universities must use race flexibly, id., at 334, and must not maintain a quota, ibid. And even this limited sensitivity to race must be limited in time, id., at 341–343, and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” id., at 339. Grutter-compliant admissions plans, like the ones in place at Michigan’s institutions, are thus a far cry from affirmative action plans that confer preferential treatment intentionally and solely on the basis of race.
Here is this term — "affirmative action" — composed of 2 very positive words —  "affirmative" and "action" — a term that has been used and defended for decades, and Sotomayor decides it's time for a euphemism? She may perseverate for 58 pages, but that backing off from the traditional term of art shows insecurity in the soundness of the position. In fact, going on for 58 pages — longer than the 4 other opinions combined — can also be regarded as a sign of insecurity.

What if a Supreme Court Justice, writing an opinion upholding the right to abortion, suddenly announced — in a footnote — that she wasn't going to use the word "abortion" anymore, because "some comprehend" it to mean things she thought were incorrect and distracting? Henceforth, she's only going to call it "reproductive freedom."

I'm sure you can think of other examples to make the point that it's a sign of insecurity in the acceptability of the practice. Imagine a 19th-century judge writing an opinion upholding the right to own slaves and dropping a footnote to say he wasn't going to use the term "slavery" anymore, because it set opponents' minds reeling into thoughts he needed to control. He's only going to refer to it as "our peculiar institution."

So… how does Sonia Sotomayor — the Justice chosen for her empathyreally feel about affirmative action?

97 comments:

gregq said...

'Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.”'

Yes, because describing it honestly: "racist admission policies" would politically hurt it way too much.

gk1 said...

Its funny how afraid the left is to use plain, common, language to define what they really want. Abortion is "pro-choice". Quotas and preferential treatment based on race is "Affirmative action". There is no need to vilify Sotomayor like the left does Clarence Thomas, but Ann's observation is telling. The left's positions can never withstand the voters, so they have to get it done in the courts under an ink cloud of code words and double talk.

Unknown said...

How much govt help do English only speakers receive in Mexico, or any Spanish speaking country.

persiflage mahal said...

"Illegal aliens", anyone? The Orwellian ploy of changing the language to deny the reality is all anyone needs to know that Sotomayor is full of shit.

gerry said...

Preferential treatment is how Sotomayor got her job.

The truth hurts.

Charles said...

What I get from that is the affirmation that affirmative action is actually race based policies that supposedly are not allowed....I feel this supports the Plurality not her dissent.

After reading her dissent I feel firmer that the Chief was right. Stop discrimination is how you stop discriminating.

The Drill SGT said...

how does Sonia Sotomayor — the Justice chosen for her empathy — really feel about affirmative action?

I think she sees it as a racial spoils system and wants "her people" to get at least their share...

Brando said...

The good news is I think Sotomayor's opinion--like Bull Connor's--is going to be that of an ever shrinking minority. Younger liberals are increasingly likely to want to replace "race-sensitive" policies with "class-sensitive" policies, which may have the same effect (providing more opportunities to blacks and hispanics than before) without having to actually judge people by the color of their skin.

Sotomayor's dissent in this case should be exposed for just how radical it really is--she is not just saying that racial preferences are permitted under the Constitution (which was the default pro-AA position). She is actually going as far as saying that BANNING such preferences is unconstitutional! That the 14th Amendment, which clearly states that the government cannot deprive a person of equal protection based on their race, somehow actually requires the government to deprive a person of equal protection based on their race. Let that sink in.

It really boggles the mind that someone who thinks like that could make it to the highest court in the land. But I think that eventually we will see a day when such thinking is relegated to the fringes of political thought.

Skipper said...

The more important question is how does she feel about the Constitution?

traditionalguy said...

Competition is a hard way to live. There are always losers.

So declaring the winners in advance is the ticket.

Now how do we redistribute the scarce winning tickets?

The Drill SGT said...

Roger Kimball wrote a great piece on the decision. The nut graf:

But what began as a Presidential Executive Order in 1961 directing government contractors to take “affirmative action” to assure that people be hired “without regard” for sex, race, creed, color, etc., has resulted in the creation of vast bureaucracies dedicated to discovering, hiring, and advancing people chiefly on the basis of those qualities. White is black, freedom is slavery, “without regard” comes to mean “with regard for nothing else.”

cubanbob said...

I'm not interested in her feelings. I'm interested in her ruling and how based on a textual reading of the constitution she arrived at her ruling. It appears that although Sotomayor and Thomas may both have been appointed to the court as a form of affirmative action the difference between the two of them is that Thomas uses judicial temperament to arrive at his rulings and Sotomayor uses political temperament to arrive at her rulings. Perhaps she should resign and run for office as that career path better suits her temperament.

Jim said...

Rebranding is something that corporations do when they recognize that their product has received a sufficiently awful reputation that the only hope of continuing to sell the product is to change the name and image.

You would think that a wise Latina would know that even making the attempt gives off a strong whiff of desperation. Sotomayor recognizes that "affirmative action" is at that tipping point. It can only survive if it's "rebranded." I think it's far too late for that though: people have grown more and more cynical about politically-correct "rebranding" such as that Sotomayor is attempting.

MayBee said...

I'd like her to explain why Asians aren't a minority.

Joshua Barker said...

"Competition is a hard way to live. There are always losers.

So declaring the winners in advance is the ticket.

Now how do we redistribute the scarce winning tickets?"

Quick! Donate to the Democrat party and guarantee your spot at the front of the line...

Fernandinande said...

“race-sensitive admissions policies.”

Racist dog-whistle, anyone?

Modern socialism is based on lies expressed in Newspeak.

hawkeyedjb said...

"Perhaps she should resign and run for office as that career path better suits her temperament."

She already holds a political office. The court has become a partisan branch, stuffed with appointed rather than elected politicians.

Tank said...

Skipper said...

The more important question is how does she feel about the Constitution?


She feels the same way about it as our Zero. It's an impediment.

Michael said...

This happened in the 1970s. A very rich friend was instrumental in getting a number of talented African American students admitted to Ivy League schools. To a person they did not succeed in those schools and were embittered, to hear my friend tell it, by the experience of having gone from being lifetime straight A students continually praised for their performance to being mediocre to poor students barely hanging on. There are scores of colleges and community colleges that are completely open to students who are not all the way there academically. These efforts to compel the more competitive schools to take on less competitive students are pretty in their intent but potentially have very negative consequences for the "beneficiaries"

Jane the Actuary said...

Funny how "affirmative action" itself started as a euphemism, masking the ideas of quotas and timetables. Now that needs to be replaced.

But "race-sensitive admission policies" is pretty cryptic. What she seems to be claiming is that "affirmative action" = quotas = bad, but RSAP is more random and arbitrary so it's OK. Or does RSAP mean that you give extra points to the kid who's "authentically" black but not the ones who "act white"?

SteveBrooklineMA said...

"Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone". But this is correct, no? Students are admitted based on mAny criteria, but the preferential treatment in question is based on race alone. If you have two otherwise equal candidates and your preference is to admit one over the other based on race, then isn't that race based preferential treatment?

Also, i'm outraged that Ann compares affirmative action to slavery!

fallguy said...

If we look at affirmative action, we must ask what was it?

It was an effort, by government, to bring a balance where one was missing.

The fact that it went too far should also not be the factor in this decision.

And ultimately, the question was about whether the state's have the rights to turn a deaf ear on the federal laws.

Had this happened when the Kennedy's used the commerce clause, where would we be?

I don't find her dissenting position radical at all. I find the notion we believe rampant racism is gone, humorous.

White guy..if I'm mistaken about anything factual, let me know...this is my quick radio news interpretation..

the wolf said...

"You might think, as I initially did, it's wrong to degrade a particular individual's status by saying they only got it through affirmative action."

Except Reynolds didn't say she got her job via Affirmative Action; he said she got her job because of her race, which is a different thing. Her nomination was a conscious choice by Obama to nominate a Hispanic.

Big Mike said...

Sotomayor, 59, has spoken extensively about how affirmative action was key to her rise from a public housing project where her parents spoke only Spanish. The search for minorities to diversify student bodies in the 1970s won her invitations and scholarship offers from Ivy League schools ... [emphasis mine]

Has anyone explained to Sotomayor that it's not the 1970s anymore? She and Ginsberg come across to me -- make that strongly come across to me -- as unable to comprehend that times change, things change. The things they fought for and against 40 years ago aren't there anymore.

The answer to Sotomayor was written close to two decades ago by Linda Chavez, former Reagan staffer and former member of the United Nations Human Rights Commission. Chavez argues that if one wants to do something like affirmative action then it needs to be based on economic status and not on race or ethnicity. Chavez pointed out that her sons, as Latinos, qualify for affirmative action. But they've had an upper middle-class upbringing and certainly need no additional help to succeed in life.

Back in October when the Court first accepted this case Chavez wrote "Judging people by the color of their skin is never benign. It is never a good thing to say that race defines the person, for better or worse." I eagerly await her response the Sotomayor's rote assertion that "race matters."

Tank said...

How sad is it that it is not clear to all that discrimination based on race should not be permitted by the government? Whether based upon the Constitution, or morality or fundamental fairness, that should be the result. Instead, it is obvious that some groups want (demand)(think MC) more.

For those who are optimistic that affirmative action policies will decrease, I believe you are wrong. As Hispanics in this country get closer and closer to being the majority (they don't have to actually be the majority), it is more likely that each group, whites, blacks, Hispanics and Asians, will demand "their share" of ... whatever. Nope. We're gonna get all the benefits of diversity we can handle.

Just one Tank's opinion.

SomeoneHasToSayIt said...


Since she likes to change phrases already in common use, how about we stop calling her a "wise Latina" and start calling her a "rise Latina".

Rise. As in 'risible'.

MnMark said...

@Brando: It really boggles the mind that someone who thinks like that could make it to the highest court in the land. But I think that eventually we will see a day when such thinking is relegated to the fringes of political thought.

Not sure what you base that optimism on. With a population that will soon be majority non-white and more racially divided (see Suey Park) I think what you can count on is increasingly open anti-white hostility, including more aggressive forms of racial preferences and quotas designed by people like Sotomayer to "right historic wrongs". Imagine a Supreme Court made up of, say, four Sotomayers, two Eric Holders, a Suey Park, an Elena Kagen or Ginsberg, and one lone Scalia-type white male holdout. Can you imagine the kinds of aggressively anti-white stuff they're going to approve? That's what's coming.

rhhardin said...

Sotomayor is noticing that everybody is smarter than she is and lashing out.

David said...

Here we see Althouse's fundamentally liberal instincts kicking in. She thinks that "action" is a "very positive" word, whereas a lot of conservative wisdom can be summarized as, "don't just do something, stand there."

drozz said...

Sotomayor's didn't just give a dissent.

It was a dissyfit.

David said...

BTW, I don't read Sotomayor as saying that any of those other things (quotas, points, etc.) are bad, just that they're not what we're talking about now that the Court has chipped away at the tools available to the state to make clear that race matters. I think she could as easily be saying that the current system doesn't deserve the name "affirmative action."

paul a'barge said...

Here is this term — "affirmative action" — composed of 2 very positive words — "affirmative" and "action" — a term that has been used and defended for decades, and Sotomayor decides it's time for a euphemism?

You know why, Althouse?

Because she has lost the argument.

And she (and the rest of you lovers of quotas) have lost the argument because your side of the argument sucks, and sucks hugely.

Tarrou said...

One must admire the "openness and candor" of Sotomayor's writings on racial preferences. "Race-sensitive admissions policies" is just so much clearer than "blacks and hispanics get a mulligan on grades and ACT scores, while whites and asians get a handicap".

Zeb Quinn said...

Her feelings? I'd say she's too close to the whole issue and is personally invested in it, so much so that she cannot be objective when considering it. And that's being charitable.

AJ Lynch said...

Due to affirmative action, a second generation Italian or Irish or Polish American was surely at a disadvantage compared to the second generation wise Latina aka Sandra Sotomyor. Am I correct in saying that Althouse?

Andy Freeman said...

Sotomayor writes "and even this limited sensitivity to race must be limited in time, id., at 341–343, and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” id., at 339."

Why aren't Michigan voters able to determine when this time is up? Why aren't they able to decide that there are race-neutral alternatives that should be used? Why aren't they able to put that determination into their constitution?

Andy Freeman said...

> And ultimately, the question was about whether the state's have the rights to turn a deaf ear on the federal laws.

What federal law are you talking about?

I ask because the none of the dissents pointed to a federal law requiring AA.

Instead, they pointed to the equal protection clause in the constitution, arguing that it required AA protection, or at least that states must not ban AA in their constitutions.

Larry Nelson said...

Pretzel logic to accommodate her feelings, wonderful.
Unfortunately, Sotomayor has reaffirmed an old stereotype of women.

"I think of a man, and I take away reason and accountability",
Melvin Udall (Jack Nicholson, As Good As It Gets)

Tank said...

It's not just her, here is our Attorney General of the United States of America, via John Fund.

In 2012, Attorney General Eric Holder made an eye-opening statement during an appearance at Columbia University. In backing racial preferences, he said he “can’t actually imagine a time in which the need for more diversity would ever cease. . . . The question is not when does [affirmative action] end, but when does it begin. . . . When do people of color truly get the benefits to which they are entitled?”

See, we're just getting started. We won't be done until ...

Yeah, when do they get their damn benefits. Give them those bene's and give them to them now.

In fact, just send them c/o C MC.

Which bene's are they entitled to, anyway?

Left Bank of the Charles said...

Sotomayor might at least have kept the affirming word affirmative. I'm sure that even bigots support "race-sensitive admissions policies."

Richard Dolan said...

"Doesn't 'vote' look wrong there? Is it too late or too prissy or too unrealistic to say we should scrub 'vote' from our speech about the judicial work that's done in group-project form?"

That strikes me as a bit of Althousian vortex, poking fun at the penchant for euphemisms in politically charged cases. "Scrub 'vote' from our speech" -- like Sotomayor wanted to do with Roberts' famous line, which she tried to scrub clean. "Group-project form" is a particularly nice exercise in snark to describe what the SCOTUS does, suggesting that the justices are like a bunch of kindergarten students working not always harmoniously in making a cut-and-paste poster for mommy.

Actually, 'vote' looks exactly right in that context, which is why it is the standard term used to describe what multi-member appellate courts do in deciding cases. What was striking (to me, anyway) about the opinions by Kennedy, Roberts, Breyer and Sotomayor was how insignificant the text of the constitutional provision at issue (equal protection) was for all of them. Kennedy wanted to draw lines that were writ in water, to use yesterday's play on Keats, while Sotomayor just wanted a particular result. Kennedy's opinion didn't read well, and had a unpolished, slap-dash quality to it. Given the mushiness of the plurality opinion, and the lack of a majority, it's anyone's guess what is left of the 'political process' doctrine.

mccullough said...

Thomas and Sotomayor would have benefitted from socio-economic affirmative action. They both grew up in pretty hard scrabble circumstances. Barack Obama may have benefitted from race-based affirmative action since he grew up in a middle class home and went to good schools, especially high school.

But, like W, Obama slacked off for a lot of his youth, but he didn't suffer for it in higher education admissions. Smart republicans need to get rid of legacy admissions along with racial admissions. It would have saved us from two bad presidents who would have been better off selling insurance

Seeing Red said...

Studying is "white privilege."

Mattman26 said...

Jane the Actuary is right; "affirmative action" was itself a euphemism, but is apparently no longer sufficiently euphemistic.

We need new fuzzy language to obscure the new fuzzy thinking. Some things never grow old.

And who could be against sensitivity? Are you some kind of jerk?

Roger Sweeny said...

Sotomayor argues that "race matters" and it is pretending to say otherwise. She is, of course, right.

She then says that in their admissions decisions, colleges only use race in a very limited way, never have quotas, etc. Talk about pretending.

The Crack Emcee said...

gerry,

"Preferential treatment is how Sotomayor got her job.

The truth hurts."

It's also how whites rule the country, but I don't hear anyone bitching about that.

Are centuries of friends and family an "unfair advantage" in finding jobs and hiring - in a white dominated country? Michael said, "A very rich friend was instrumental in getting a number of talented African American students admitted to Ivy League schools." That's how America works, is it not? And did, even before blacks could fully earn, for hundreds of years? Whites outnumber blacks by 6 to 1, and dole out opportunities accordingly, as they see fit? So who's REALLY working? And who REALLY got "help"?

It's a joke.

Hearing white conservatives, talking alone as a group, can be embarrassing,...

richard mcenroe said...

"What if a Supreme Court Justice, writing an opinion upholding the right to abortion, suddenly announced — in a footnote — that she wasn't going to use the world "abortion" anymore, because "some comprehend" it to mean things she thought were incorrect and distracting? Henceforth, she's only going to call it "reproductive freedom."

You mean like proud progressives already do and have done with "choice", "free speech", "diversity", "tolerance". "marriage", "equality", "fairness"...?

Distort and obfuscate the very definition of the concepts under debate, mask even their true names, and you make debate and therefore dissent impossible.

Brando said...

MnMark--while certain minority groups (i.e., Hispanics) are growing as a proportion of the U.S. population, I think their opinions have been diversifying. The screeching race-hustlers are a loud but shrinking minority--most polling has been showing an aversion to preferences based on race, and even liberals these days seem more amenable to changing those policies to be based on class rather than race.

Ultimately, the logic of racial preferences doesn't hold up. It requires a belief that ALL members of certain races are privileged, and ALL members of other races are underprivileged, and individual determinations don't matter. It also becomes a mess in practice--how does one determine an applicant's race? Going by what box they check? Who tells (for example) a Greek-American that he's not really Hispanic if he checked that box? What about the kid who is 1/64th black and looks white?

Not to mention--as suggested above--each other racial group will want their piece. Asians, Indians and Middle Easterners will rebel against the negative quotas imposed on them, and Hispanics--who aren't a single bloc but rather a diverse group--will fight over whether well-off Cuban Americans and light-skinned Spaniards are taking slots that should go to poorer Mexicans.

Viewing all of this, especially considering they were brought up several decades after the 1964 Act, and at a time when the conventional wisdom is that no one should be judged by the color of their skin (Sotomayor's opinion notwithstanding), the younger generation, for all their liberalism, is less enamored with AA than their boomer parents.

That's why I'm optimistic. I could be disappointed down the road.

Skeptical Voter said...

The Democrat party has a supermajority in both houses of the California legislature. So the Democrats can pretty much run any bill through that they want. Recently three Asian Democrats put a spoke in the wheel of some legislation that would have effectively increased the number of Hispanic and African Americans admitted to the University of California system. Since Asians are already the majority of those matriculating at the Berkeley campus, the bill would have reduced the number of Asian students admitted to Berkeley. At least that's the way everybody in Sacramento saw it.

Well the Asian legislators in Sacramento weren't going to let anybody break the Asian students' rice bowl as it were. The Asian legislators blocked the bill.

This fight over division of spoils raises an interesting question for our "wise Latina". Since Caucasian students are now a minority at Berkeley (and will soon be a minority at virtually all of the UC campuses) when will "affirmative action" kick in to insure that a sufficient number of Caucasian students are admitted to the UC system?

That of course goes double for Caucasian males---since females are now a majority of the students at most college campuses.

This whole preference system is a house of cards built on faulty premises, and promoted by race and gender hustlers.

Curious George said...

Want to know why many blacks can't get into a college? Just axe them.

tim maguire said...

What is so bothersome to me about the pursuit of "equality" in our society is that liberals just want ot sue it to shoe-horn in their big government central control dreams, while their opponents on the right want to pretend everything is fine as it is. Both sides short-circuit a discussion about the issues that really do exist and what sorts of solutions a just society might want to pursue.

While I completely agree that Affirmative Action has done and will do nothing to "level the playing field," the fact remains that the playing field is not level and it won't be until we make some changes.

Here's a good video on Neil Degrasse Tyson giving his views of the old Larry Summers kerfuffle (skip ahead to 1:01:30--just about the end):

https://www.youtube.com/watch?v=KEeBPSvcNZQ#t=3690

cubanbob said...

When its all said and done and the euphemisms are discarded it's a quota system. The irony is that of the three woman judges on the court-Kagan, Ginsburg and Sotomayor, sixty years ago Kagan and Ginsburg as well as Sotomayor would have faced a ceiling quota at an Ivy-can't have too many Jews, woman or Latinos as opposed to Sotomayor thirty years later dealing with a floor quota to make sure there are enough Latinas, blacks and woman admitted.

Sam Hall said...

What ever happened to?
"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

Basil said...

Hey Crack, why do you live in this white made society and culture? Have you ever even considered that it might be because white people, beginning with the Enlightenment, have given us protection of individual rights, rule of law, religious freedom, the scientific method, free markets, free speech, wealth creation, elimination of mass hunger, a large and vibrant middle class, economic mobility, elimination of caste, elimination of slavery and due process of law.

Whya re you against these things? Why are you an anti-white racist?

Doug said...

Her side lost, and her dissent includes an abundance of soreloserisms. Too bad, so sad. Same outcome.

What is important is how the 'wise Latina''s dissenting opinion exposes her as a partisan hack with a nebulous grasp of the Constitution and her role in interpreting it. After reading that bilge, how often do you think the other lib justices are going to assign her the writing of - heaven forbid - a majority opinion? Marked herself as decidedly third-string.

Big Mike said...

Speaking of Sotomayor, surely the "wise Latina" comment is the dumbest thing a prospective Supreme Court justice has said since Salmon P. Chase said "Mr. Lincoln, if you don't want to do things my way you can take this cabinet post and shove it."

Or words to that effect.

Bandit said...

the Justice chosen for her empathy

Everyone else was chosen for their abilities and experience. I wonder how she really feels about that?

Mike said...

There is no law to support the Wise Latina's dissentious opinion. There is no law period to Progressives, only obstacles to What They Want. She sees the 14 Amendment as saying the exact opposite of what it says. You need not be a Republican or Conservative or think "race doesn't matter" to be disappointed that a SCJ could write such drivel and discard such plain language.

But then, what part of "Congress shall make no law..." is ambiguous? How CAN some construe it to mean Congress can make some laws infringing on the rights spelled out in the first ten amendments? AA is in direct conflict with the 14th, as a Wise Guido wrote...

Crack, I suggest you come out to California where Whites are now a minority. Maybe you'll enjoy the change of scenery. :)

Doug said...

Wasn't it Sandra Day O'Connor who proposed that the US should only need affirmative action for twenty-five years, after which it should no longer be necessary?

Why does anyone think it is a good idea to have women on the Supreme Court? Let's look at the record.

Gahrie said...

Whites outnumber blacks by 6 to 1, and dole out opportunities accordingly, as they see fit

Well, you ignorant racist asshole, Whites have been disproportionally doling out opportunities to Blacks with affirmative Action for fifty years...and apparently that hasn't helped out much.

Brando said...

Mike, it goes further than that. It's not "government CAN make some laws" it's "government SHALL make some laws". For her, it's impermissible that a state refuse to impose racial preferences. This is a radical and idiotic point of view and it should frighten people that a functioning adult could not only hold such an opinion but sit on the highest court in the land.

averagejoe said...

So this is what a wise latina looks like, huh? Indistinguishable from a silly Puerto Rican.

The Drill SGT said...

Skeptical Voter said...
Well the Asian legislators in Sacramento weren't going to let anybody break the Asian students' rice bowl as it were. The Asian legislators blocked the bill.


The story is a bit more complex.

1. The 3 Dems initially supported the bill, per the party line
2. Then their Asian voters raised hell.
3. And the 3 Asian Dems switched their position to opposition (and joined the GOP to block the bill.

Dave Schumann said...

@Mike -- I don't know or care where Crack is, but I'm happy to hear it's not California and I'd rather you not propose he come here. It's not like he'd learn anything. A person who pictures a white committee sitting around and "doling out opportunities" from a pool of available opportunities is not ever going to change his mind in the face of something so prosaic as evidence.

@Brando -- the idea that minority voters have become more diversified in their opinions does not seem to be borne out by exit polling results over time. Do you disagree?

Jason Lee said...

"So I guess the Instapundit gibe bounces off Sotomayor and hits Clarence Thomas. "

No. The fact that Thomas has openly acknowledged affirmative action's insult on his accomplishments makes the gibe go quite the other way around... if it comes near Thomas at all. But I guess it's hard to see all this clearly if one is standing in affirmative action's wake, distracted by doubts about one's own tarnished achievements.

Real American said...

Roberts wrote that "People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate."

I agree that people can disagree on this issue in good faith, and even that it may do more harm than good to question the openness and candor of those on the other side, it is evident that Sotomayor is not arguing in good faith. She and the other political actors on her side of the debate argue from the position of beneficiaries of a racial spoils system, not just as recipients of race preferences, but in that is precisely where she and her ilk derive their political power - from wielding the race card like a sword.

Had Ginsburg written that dissent (and she wouldn't because she has more than two brain cells to rub together) it would not have received the publicity that Sotomayor did. Sotomayor got extra pub because SHE'S A RACIAL MINORITY and she was playing the race card. Roberts had to respond, though he's too nice and there's no diplomatic way to say "stupid, lying cunt."

She insults our intelligence by denying that the way to combat racial discrimination is stop doing so. Instead, she insists that the only to stop discrimination (aside from continuing to do so) is "speak openly and candidly on the subject of race..." That is a complete fucking LIE! She and the Jacksons, Sharptons, Obama, and Holders of this country do not want an open and candid conversation. They wield the race card to STOP open and candid conversations (of any subject, not just matters of race). What they mean is that the rest of us need to shut the fuck up and sit there while they lecture us about racist we are, how racist America is and how we're too fucking dumb to even know it half the time. They wield the race card every fucking chance they get. Her entire opinion is just a long winded version of the race card. It is not good faith. It is not a legal opinion. It's a political statement that says to those that disagree "Shut up, racist." She should be impeached and removed for such a rancid, unintelligible and insulting opinion.

Jane the Actuary said...

Let's back up a bit, just for fun:

what, ultimately, is the purpose in their being multiple state universities in a given state, with varying levels of selectivity? Let's just proclaim them all to be equal, and anyone who meets the basic criteria for eligibility to study at a university gets assigned by lottery.

Problem solved, right?

Larry Nelson said...

Hey Crack,
Is Clarence Thomas an embarrassment?

chillblaine said...

Larry Nelson says what many are thinking. The Justice votes based on her feelings, indicating a lack of reasoning ability. And Justices are nearly impossible to recall, making them accountable to no one.

Interesting, in a blog hosted by a female attorney, there are very few coherent opinions or comments made in Sotomayor's defense. Or in defense of progressive policy in general, for that matter. I would like Nate Silver to run a regression analysis on that. Meanwhile, I would recommend the hostess institute a quota system to better balance out the comments. After all, diversity benefits everyone!

William said...

At the time of the Sacco Vanzetti case, progressives claimed that the prejudice against Italian immigrants, especially those with radical opinions, was so strong that it was not possible for those men to get a fair trail. Jump cut two generations. Progressives now claim that the children of Italian immigrants have such radical opinions that they are unworthy to serve on the Supreme Court.

Strelnikov said...

Resolved: Being a lifetime beneficiary of something will make a supporter of it.

Pro: Sonia Sotomayor

Con: None. (Sotomayor rules that no one is allowed to take this position.)

David said...

We know one thing.

Stomayor feels more intensely about affirmative action than she thinks about it.

Brando said...

The Drill SGT--so far, certain minority groups have not diversified, but I think you can see a few different patterns (and different ways this can go). For example, there was a time when almost all American Jews were solidly Democrats, as were almost all American Catholics such as Italian Americans. By the 1960s, while Jews still lean Democratic--though not to the extent they used to--Catholics (and Italians in particular) tend to split much like the general population.

Hispanics I think have the early signs of the split--in '04, over 40% went towards Bush in what was also a close national election--and as Hispanics become more assimilated and wealthier the question will be will they go solidly Democratic (as blacks remain), lean Democratic (as Jews do) or split more evenly like Catholics in general? The diversity in Hispanic backgrounds I think suggests it could go more like the Catholics.

David said...

Jane the Actuary said...
Let's back up a bit, just for fun:

what, ultimately, is the purpose in their being multiple state universities in a given state, with varying levels of selectivity? Let's just proclaim them all to be equal, and anyone who meets the basic criteria for eligibility to study at a university gets assigned by lottery.

Problem solved, right?


I'm with you if we can apply this to teaching assignments too.

Michael said...

Crack:

Not sure why you would be embarrassed by a rich guy helping some black students get into Ivy League schools.

As you can see, there are fewer and fewer people who engage with you on this blog because no matter what they might have to write on the topic of African Americans they will be wrong and subject to your sniping. Your moment is winding down because you are not able to engage in rational dialog, or don't want to. You are working the long con but you are losing your audience. The long con requires an audience and a gull or two in the crowd. Cheers. Hope the new job is what you wanted.

Don M said...

What if we had a race sensitive admission polity that reduced minority admission to levels based on their performance on the SAT/LSAT?

Is that what she wants?

Or does she just expect people like her to be given preference based on 'minority' status despite the over representation of white women in college compared to the general population?

Is minority affiliation a get out of jail free card to protect from non-diverse over representation based on other criteria?

Drago said...

Michael: "Crack: Not sure why you would be embarrassed by a rich guy helping some black students get into Ivy League schools."

You know, sort of like how a well to do white guy from Jersey lets Crack come on his radio show.

Is that something to be embarrassed about?

According to Crack, yes.

Crack, why don't you just demand that Ray give you his radio show?

After all, according to you, you've earned it.

Drago said...

Crack: "Hearing white conservatives, talking alone as a group, can be embarrassing,..."

Well sure.

A bunch of people in a group who are all "talking alone" would look silly.

On the other hand, demanding $100 trillion dollars, payable now, is laugh-out-loud funny.

Saint Croix said...

What if a Supreme Court Justice, writing an opinion upholding the right to abortion, suddenly announced — in a footnote — that she wasn't going to use the world "abortion" anymore, because "some comprehend" it to mean things she thought were incorrect and distracting? Henceforth, she's only going to call it "reproductive freedom."

See Ginsburg's dissent in Carhart II.

"The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label 'abortion doctor'...”

How dare you call an abortion doctor an abortion doctor!

Beldar said...

Prof. Althouse, you asked in this post:

"Is it too late or too prissy or too unrealistic to say we should scrub "vote" from our speech about the judicial work that's done in group-project form?)"

But to the litigants — those whose case or controversy is the occasion for the court to be meeting at all — it is indeed "the vote" that counts. More specifically, it's the vote taken among the Justices in conference regarding what's to be done with the judgment of the court below, from a very limited number of alternatives (principally "affirm" or "reverse"). That oral vote ends up being memorialized in a written judgment delivered contemporaneously with whatever opinion(s) the Justices write to explain their vote.

But yeah, for many purposes for the country, and almost entirely for the particular litigants before it: It's the vote that matters.

Smilin' Jack said...

Instead, she called it a system of “race-sensitive admissions policies.”

If only George Wallace and Ross Barnett had had her way with words.

Birches said...

Brando's right. Latinos are the new Italian immigrants, insomuch as they are moving to areas where they are allowed to assimilate (you know where the liberal "man" isn't selling victimization).

And as much as I'm annoyed by the moderation sometimes, it seems as if some flame throwers just can't get the responses they were asking for because of it. Hallelujah!

Drago said...

Remember this gem from noted lefty Laurence Tribe?

http://voices.washingtonpost.com/44/2010/10/laurence-tribe-unfiltered-on-s.html

"How about appeals Judge Sonia Sotomayor? "Bluntly put," Tribe said, "she's not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the" conservative wing of the court."

So, props to Tribe for calling out Sotomayor for being...how should we put this? Not that smart.

Compound her relative lack of intellect with hard-nosed leftist identity politics and you have what you have.

A squawking lefty who is willing to bury our constitutional protections under an avalanche of "well what about that mean look person A gave person B?" logic.

Of course, as I've said before, I think in the long run the Sotomayors will "win".

I think we are headed for Europeanization and potentially even deeper decline over the long term.

As soon as we have a majority of Sotomayor's on the court (and we will), this "experiment" in a republican form of gov't will basically be over.

It was never guaranteed to last anyway.

Kansas City said...

Ann threw me off with the last question. I started reading her post with the view that Sontomayor was horribly biased in favor of affirmative action since it was her ticket to professional success in life. I still think that is true, but her mental state is obviously more complicated than that. The litany of slights itemized by Sontomayor almost certainly include her personal experienced. I think she emphasized the feeling of "I don't belong here," which must be highly personal.

I don't think Sontomayor is that bright, but she almost surely made a mistake in going on for 58 pages about the virtues of affirmative action when she had a weak legal argument. It always is easy to see things from a distance, but she and the country would have been much better served if she either joined the majority with a short concuring opinion or wrote a short and respectful dissent.

richardsson said...

I would like to throw a few grains of salt on the idea that demographics is destiny or that Demographers have any ability to predict the future population composition. In the beginning years of the baby boom, the consensus of the Demographers was that the pattern of World War I would be repeated, i.e. a drop during the war years and a spike after the war followed by a long decline through the 20's and 30's. Instead the birthrate blew off the chart during the 40's and 50's. It reached a peak in 1958, in which Demographers warned that we faced a future of third world poverty if the birthrate continued to skyrocket. Wrong again. The birthrate continued to decline gradually until 1964 when the bottom dropped out of it. Why? 1964 was when the Birth Control pill was first approved. Immigration rates have also risen and fallen. It is estimated that 1/3 of all Europeans who immigrated to the United States before 1920 returned to their native country. Predicting the future might be fun but its not science.

ken in sc said...

If I was a Yankee, I would be P.O.ed that these quota babies never give any credit to all those dead Yankee soldiers who sacrificed themselves for America's racial sins. How many more do they want?

Zach said...

In practice, affirmative action has many similarities to a patronage program. The team will help you to get ahead, but in return you have to support the team.

Looking at it that way, much becomes clear.

Thomas does not want to support the team, resents the pressure he faces to support the team, and strongly opposes affirmative action.

Sotomayor *does* want to support the team. She offers her race as proof of her bona fides (the infamous "Wise Latina" remark).

Elizabeth Warren is not actually a minority, and is quite possibly directly hurting minorities by claiming a spot that should go to a real Indian. But she is willing to take the patronage deal, so she gets a free pass. So at least in some circumstances, the racial angle is completely optional.

Larry Nelson said...

Instead, she called it a system of “race-sensitive admissions policies.”



How ironic that race sensitive admissions policies were the reason President Eisenhower sent in federal troops to Little Rock, Arkansas, BITD.

Dave Schumann said...

@Kansas -- do you think she was particularly upset about "the feeling of 'I don't belong here'" because she realizes she doesn't belong there?

Roadkill said...

I found the opening sentences of Scalia's concurring opinion an accurate if somewhat dismissive summation of the core issue of the case:

"It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say(except that this case obliges us to say it), the question answers itself."

Roadkill said...

I found the opening sentences of Scalia's concurring opinion an accurate if somewhat dismissive summation of the core issue of the case:

"It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say(except that this case obliges us to say it), the question answers itself."

Roadkill said...

So, like, did Scalia nail this thing in the opening sentences of his concurring opinion or ntot?

"It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say(except that this case obliges us to say it), the question answers itself."

AlanKH said...

Sotomayor came across as an airhead when she was nominated, and that impression has borne out. Nobody who thinks in class warfare terms can be trusted as a judge.

jr said...

If a university wants more of a particular race in their student body, then go recruit them.

Set up a program to find, tutor, assist, etc those they want so that they meet the admissions requirements.

In this way, race will have nothing to do with the admissions acceptance process.

Also, everyone will be absolutely qualified and able to handle the expected workload.

Kansas City said...

I sort of feel sorry for Sontomayer.

On the one hand, she has played the system to great fame and achievment, including no doubt, contributing much hard work in the process. She pretty clearly has been bothered for a long time with the affirmatie action related feeling expressed in her opinion as "I don't belong here." She probably feels it with some regularity on the Supreme Court. Now, as a single and pehaps lonely woman uncomfortable on the Court, she writes a long screed in defense of affirmative action that will never be viewed with any respect as a work of legal scholarship. Almost certainly, it will be the most famous thing she ever does as a justice -- forever linked with affirmtive action.

I suppose fame and occasional power (in those rare instances where she is the deciding vote) are rewarding, but I sense there may be an emptiness there.

As to the "race sensitive admissions policies" effort, I also find that somewhat sad. She struggled to come up with something to help in an rebranding effort, and I suppose for a while it will be picked up by lefties, but it almost certainly will not supplant affirmative action. It also is a poorly thought out rebranding attempt -- it is too close to the truth. It conveys what is actually happening - racial preferences. It is better for the lefties to hide the truth under affirmative action and diversity. I know in some circles she will forever be hailed as a courageous hero but even she must see through the shallowness of such acclaim from fellow travelers. Is any objective person likely ever to find her to have a superior intellect or other great achieement on the court?

Char Char Binks said...

The wise Latina draws profound knowledge from her spicy brown punaner.

mikee said...

How does she feel? Who cares!

I am more interested in her 58 page manifesto arguing that the government should use race as a preference in differential treatment of citizens.

It is all about power of government, over citizens, by all means and any means.