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.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?)
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.
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 empathy — really feel about affirmative action?