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The Sotomayor Scandal: What Does it Mean for America?

By Steve Sailer

"President Barack Obama’s nomination of Sonia Sotomayor to replace retiring Supreme Court Justice David Souter is hardly surprising. Indeed, writing in VDARE.com 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 Sotomayer 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. Puerto
Ricans, such as Judge Sotomayor, Their 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."




http://www.vdare.com/sailer/090531_sotomayer.htm