The Sotomayor Scandal: What Does it Mean for America?

President Barack Obama`s nomination of

Sonia Sotomayor
to replace retiring Supreme Court

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

I didn`t have any special insight. It was
pretty obvious. Obama had a well-known checklist. It
consists of items like
"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

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
`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

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

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

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

  • First, by using quotas (although the

    and the 2003

    Grutter and Gratz

    decisions said that you aren`t allowed to call them
  • 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,
    fire companies.

In the 1970s,
"disparate impact"

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
on whites, on
average, was not immense. 

Unfortunately, the Disparate Impact

invented by the Supreme Court
in the

1971Griggs v. Duke
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.

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,

), to benefactors, (chiefly
threatens to bankrupt the entire economy over the next two

(By the way, how`s the
doing lately—especially in diversity-is-strength


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
Medical College Admission Test

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

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

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

The real question, however, is: what kind
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

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The American Conservative

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