The Objection to Sotomayor Is Not About Affirmative Action

Megan McArdle is a smart journalist. She's great on many economic issues. And she should be; she went to the right schools. But she's also a libertarian. And like many libertarians--especially libertarian journalists--she's always eager to show off how much she is not a Republican to all the Lefty friends she made in those schools. She does this usually by misrepresenting the Republican positions or just outright lying about them.

I'll be honest, I stopped reading Megan back in September of last year when she embraced Trig Trutherism and wrote how impressed she was that Governor Palin relieved her daughter of the "burden" of raising Trig. So I wouldn't have seen Megan's post on Judge Sotomayor except that Instapundit linked it. I'm glad I saw it though because I expect it reflects the next stage of the Democrats' defense of Sotomayor's race- and gender-biased attitude.

Megan entitles the post "The Problem with Affirmative Action." As expected, she entirely misses the point of our objection to Judge Sotomayor. And for extra Lefty cred, she implies that we're all racists at the same time. She writes (and the italics are all hers):

HL Mencken once defined Fundamentalism as "the terrible, pervasive fear that someone, somewhere, is having fun". I've been thinking of this a lot watching some of the attacks on Sotomayor, but I'd frame the critics as suffering from the terrible, pervasive fear that some brown person, somewhere, is getting away with something.

Posit that everything the critics say about Sotomayor is true; that indeed, everything they say about affirmative action is true. Is this the biggest problem facing America? Is this the biggest problem facing America from Sonia Sotomayor?

...Making race, or racial politics, the central complaint, makes it seem like your biggest policy priority is making sure that not one minority in the land gets anything they don't deserve. But hey, we all get things we don't deserve. I'll go further: almost all of us get something we don't deserve as a result of our race, including white people. Perhaps even especially white people.

If you don't believe it, ask yourself why repeated studies show that resumes with identifiably black names get fewer interview offers than identical white resumes. Being identifiably black hurts your chances worse than having a felony conviction. Even if you want to argue that an identifiably black name is a socio-economic marker for a certain kind of parenting, an argument I find pretty dubious, are you really willing to argue that black kids should be permanently barred from employment because their parents have dubious taste in names? Well, go ahead, I guess, but I'm going to find it hard to take you seriously when you complain about affirmative action because it undermines our fantabulous American meritocracy.

Sonia Sotomayor is not manifestly unqualified to be a Supreme Court justice, so focusing on affirmative action is completely irrelevant. You can argue with her politics or her legal judgement, and hey, I'm all ears. But the affirmative action complaints aren't advancing our quest to find out whether or not she'd be a good justice. They're just alienating the people you want to convince.

I'm not sure which people Megan thinks we are alienating and I'm not particularly interested in why an affirmative action complaint we aren't making is alienating them. Perhaps if Megan would stop repeating misrepresentations of Republican objections people would stop being alienated by them.

I'll tell you what Megan's real problem is. She has the terrible, pervasive fear that some Republican, somewhere, is giving a "brown person" a hard time. It never even occurs to her that there might be a reason for that aside from skin color. That's how Judge Sotomayor's race becomes a shield from scrutiny as Megan goes off on Republicans and affirmative action instead of the real issue.

Do I believe that Judge Sotomayor was picked because of her gender and ethnicity? Absolutely yes and so does every other person on the Left and the Right that's written about it. Am I objecting to her nomination because of her gender or her ethnicity? Of course not. Her gender and ethnicity have nothing to do with whether she will make a good justice, but Obama is hardly the first to have made his selection on grounds other than merit.

So I'm going to repeat this for people like Megan who think that the fuss is because a "brown person, somewhere, is getting away with something." That's not it. The problem is that Judge Sotomayor appears to have the bigoted belief that some ethnicities and genders are better suited to judging than others. And that bigoted belief would be inappropriate in a Supreme Court justice no matter the ethnicity or gender of the person who holds it.

It's not that there will be more diversity on the bench. Whatever it is that diversity brings--alternate modes of analysis or unique foundational assumptions or whatever--difference qua difference is okay. But that's not what Judge Sotomayor said. She didn't just say that we need Latina judges because there are differences in the conclusions reached by a wise Latina and wise white man. Rather, she said that she thinks we need more Latina judges because the wise Latina's conclusions will be better than the white man's. That's bigotry.

If a male judge had said we need more men judges because they make better decisions than women judges, we would rightly call it sexism. And we would question whether that judge can set aside his sexism behind the bench. We would wonder if his sexism extends not just to the the role of judges, but to other situations including any case which comes into his court. The objection to that judge being elevated to the Supreme Court would have nothing to do with his sex, but everything to do with his sexist beliefs.

Like I said, Megan McArdle is a smart journalist. But she's wrong about this. The "problem of affirmative action" is not the problem Republicans are worried about when it comes to Sonia Sotomayor. Megan would do better to address our objections than to shoot down strawmen of her own creation. She says she's "all ears" if we'd just argue with Sotomayor's legal judgment. Well, here it is: I think Sotomayor's belief that a a wise Latina will, by virtue of her gender and ethnicity, come to better conclusions than a wise white man is a fundamental flaw in her judgment which should disqualify her from nomination to the Supreme Court.

posted by Gabriel Malor at 08:24 AM

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