The Sotomayor Scandal: What Does it Mean for America?
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President Barack Obama's nomination of Sonia Sotomayor to replace retiring Supreme Court Justice David Souter is hardly surprising. Indeed, writing in a couple of weeks before Souter even announced he was hanging it up, I referred to "potential Obama Supreme Court nominee Sonia Sotomayor" in connection with her vote against Frank Ricci and the other New Haven firemen whose hard-earned promotions had been stolen from them in the name of "disparate impact".

I didn't have any special insight. It was pretty obvious. Obama had a well-known checklist. It consists of items like "Hispanic," "female," "not too old," and "liberal." Among individuals meeting his requirements, only Sotomayor had the credentials (she's a judge on the Court of Appeals) to seem at least plausible on the Supreme Court.

Let's not act too scandalized that Sotomayor was nominated more for reasons of identity politics than of judicial talent. The Supreme Court is an inherently political institution. A large fraction of Supreme Court nominees are appointed for reasons of identity (or, in the case of Souter—the original stealth nominee—lack of identity). Sometimes, as in the case of Clarence Thomas, they turn out to be impressive. Other times, as in the case of Sandra Day O'Connor…not so much.

But, needless to say, and also for reasons of identity politics, it's hard to imagine Sotomayor bringing unbiased judgment to affirmative action cases.

In law school, Sotomayor took discussion of the mere existence of affirmative action to be a personal affront. Sharon Theimer reports for the Associated Press:

"Yet years ago, during a recruiting dinner in law school at Yale, Sotomayor objected when a law firm partner asked whether she would have been admitted to the school if she weren't Puerto Rican, and whether law firms did a disservice by hiring minority students the firms know are unqualified and will ultimately be fired."

"Afterward, Sotomayor confronted the partner about the questions, rejected his insistence that he meant no harm and turned down his invitation for further job interviews. She filed a discrimination complaint against the firm with the university, which could have barred the firm from recruiting on campus. She won a formal apology from the firm."

Sotomayor's conduct is reminiscent—guess who?—Michelle Obama's "rage of a [legally] privileged class." Mrs. Obama also always wanted to enjoy the advantages of affirmative action—while being peeved that anyone might notice that she was enjoying them.

Ironically, the current unwelcome attention being paid to Sotomayor's past statements is the outcome of the remarkable lack of media attention paid to Barack Obama's past statements in his 1995 memoir Dreams from My Father: A Story of Race and Inheritance.

Why the difference?

First, Sotomayor isn't as slippery a prose stylist as Obama is.

Second, blacks are far more central to the reigning mythos of contemporary America than are Latinos.

Third, some Republicans are starting to wake up to the fact that if they give every minority candidate a pass in the way they gave Obama a pass in 2008, then they will keep on losing like they did in 2008.What's more interesting than Obama's nomination of Sotomayor for her "story of race and inheritance" are the long-term implications of the shortage of individuals who could characterize themselves with any degree of credibility as Judge Sotomayor did in her notorious address to La Raza:

"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."

This is a classic statement the usual diversity dogma that is now the received wisdom of 21st Century America.  (Of course, most "diverse" individuals, much less federal judges, have the wisdom not to cite themselves as examples. But, hey, at least Sotomayor didn't describe herself as "vibrant.")

According to the most recent Census Bureau projections, the number of Hispanics residing within the United States is expected to grow from 35 million in 2000 to 132 million in 2050 — an increase in a half century of a staggering 97 million.

This wholesale demographic change, engineered by American elites with little input from the American people, has vast implications for the law and for the fundamental competence of American society.

Consider test scores on the Law School Application Test. For Puerto Ricans, such as Judge Sotomayor, the average score would only fall at the 6th percentile of the non-Hispanic white distribution.

This exceptionally dreadful performance by Puerto Ricans perhaps stems from the fact that the English-only LSAT is mandated for students applying to Puerto Rico's Spanish-only law schools. Yet the performance of Hispanics in general on the LSAT doesn't come close to meeting the Equal Employment Opportunity Commission's "Four-Fifths Rule." (Under the reigning civil rights doctrine of "disparate impact," any selection process, such as the fireman's test passed by Frank Ricci, is legally suspect if any minority group passes it on average at less than "four-fifths" the rate of the highest scoring group.)

Overall, Hispanics average a score that would fall only at the 24th percentile of the non-Hispanic white distribution.

Mexican-Americans do a little better on the LSAT, scoring at the 29th percentile. But that's largely because Mexican-Americans make up only 1.6 percent of all those taking the LSAT, even though they make up 10.2 percent of all residents of America between 20 and 24. This suggests that only relatively elite Mexican Americans take the LSAT and that their average scores would be worse if more took the test. (In contrast, African Americans make up a sizable 10.6 percent of those who sit LSAT, and the black average would fall at the 12th percentile among whites.)

Needless to say, many employers use surreptitious racial / ethnic quotas to stay out of legal trouble.

Law schools get around the Four-Fifths Rule problem in two ways.

  • First, by using quotas (although the 1978 Bakke and the 2003 Grutter and Gratz decisions said that you aren't allowed to call them "quotas").
  • Second, they exploit that fact that judges tend to assume that the law is special, and obviously requires cognitive firepower, unlike all those simpleminded professions—such as, well, commanding fire companies.

In the 1970s, "disparate impact" was implicitly viewed–but not articulated — as an affordable system of reparations for slavery. It was seen as not too costly because whites greatly outnumbered blacks, so the burden on whites, on average, was not immense. 

Unfortunately, the Disparate Impact system, invented by the Supreme Court in the 1971Griggs v. Duke Power case, was also always rationalized not as reparations, but as an anti-discrimination measure to hunt out hidden (and even unwitting) discrimination.

In 1973, the Nixon Administration—looking for Hispanic votes, a familiar story with historically-challenged GOP Presidents— extended affirmative action privileges to minority immigrant groups.

 (Puerto Ricans aren't immigrants, but Puerto Ricans living in Puerto Rico don't consider themselves to be exactly Americans either: Puerto Rico competes in the Olympics as a separate country. In fact, in 2004, the Puerto Rican basketball team beat the underachieving American team.)

Extending disparate impact benefits to Hispanics has set up a potentially devastating dilemma. Now America was inviting in foreigners, both legal and illegal immigrants, and immediately rewarding them with legal privileges in hiring over the white population.

Just as General Motors' retiree health insurance system has collapsed because the ratio of retirees benefiting from the system to current workers contributing to the system has swollen, so the vast growth in the number of affirmative action beneficiaries, (chiefly Hispanic), to benefactors, (chiefly white) threatens to bankrupt the entire economy over the next two generations.

(By the way, how's the economy doing lately—especially in diversity-is-strength California?)

So far, the devastation wrought by the affirmative action dilemma has been mitigated by the lack of ambitiousness that appears widespread among Hispanics—especially among Mexican Americans, as seen in their low rates of advanced degree test-taking. (Mexican Americans only make up one out of 40 takers of the Graduate Record Exam and Medical College Admission Test).

At present, Hispanics appear less likely than African Americans to pursue jobs where they are underqualified.

Of course, this lack of ambition also means that Hispanics have not been moving up the social ladder over the generations, as has been so often reflexively predicted by pundits like Michael Barone. The college graduation rate among fourth generation Mexican Americans is only six percent.

And, no doubt, we will now insistently told that Judge Sotomayor is a crucial "role model" for Hispanics.

The real question, however, is: what kind of Supreme Court Justice she will make for Americans?

And that doesn't look good—regardless of what Obama checklist she satisfies.

[Steve Sailer (email him) is movie critic for The American Conservative. His website features his daily blog. His new book, AMERICA'S HALF-BLOOD PRINCE: BARACK OBAMA'S "STORY OF RACE AND INHERITANCE", is available here.]

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