Copyright by John T. Reed

Our affirmative-action president has nominated an affirmative-action judge to the U.S. Supreme Court. I and, one suspects, Martin Luther King, Jr. wish both jobs had gone to persons chosen for the content of their character rather than the color of their skin.

Much has been made of some comments Sotomayor made in the past. Here are some of my thoughts that I have not seen on TV or in the print media.

Latino women versus white males

In one, she said to the Honorable Mario G. Olmos Law & Cultural Diversity Memorial Lecture at UC Berkeley in 2001,

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.

1. She did not say this in a court opinion. Whether she would do so or decide a case in a way that the statement suggests remains to be seen. One is more careful about written statements than verbal ones and I would expect that judges are more careful about what they say in court decisions than in less formal types of writing.

2. Consider the audience to whom she was speaking. It was a diversity lecture named after a Latino at U.C. Berkeley, a Communist madrasa. One media account said the audience was all Latino law students and lawyers. I would refuse to speak at a diversity lecture on the grounds that the whole idea of diversity (more accurately described as excluding whites and asians so more politically-favored minorities can be included) is immoral and not based on evidence. You don’t get to be a Supreme Court justice because you are a good judge. You get the job because you are a politician who hangs around with the politicians who get elected and therefore in a position to nominate justices. Like all politicians, she was sucking up to the audience, kissing their asses, trying to say what they wanted to hear and be what they wanted her to be. Not admirable.

3. Lawyers parse words. So we need to do the same when we interpret what lawyers say. The verb in this sentence is “would hope.” It is a meaningless phrase and thereby renders the whole sentence meaningless. But all that means is that she is trying to make a statement without actually taking responsibility for it. Typical politician trick. Obama does it all the time. So let’s move on to the statement she is trying to make without really making it.

4. The word “wise” comes from a prior comment at the lecture made by Sandra Day O’Connor about a wise male judge making the same decision as a wise female judge. The fact that she failed to also use the adjective “wise” on the white male reference may be some kind of Freudian slip, but I’ll let it go.

5. The phrase “Latina woman with the richness of her experiences” strikes me as a racial stereotype, i.e., Latino women have some uniform set of experiences. What would that be? Being a maid? Eating Mexican food? I am not aware of any basis for saying that Latino women all have the same experiences. Each Latino woman is a unique individual and each has unique experiences. How pertinent they would be to the series of law cases she would see in her court over the course of her career is unknowable. We’re not talking about night court in the barrio here. This is the U.S. Supreme Court. The cases involve high finance, criminal rights, international law, lawsuits between businesses, the Internal Revenue Code, and so on. A U.S. Supreme Court justice could easily never hear a single case related to his or her pre-judicial background. Those, like Obama, who think her background is extremely useful should point to a U.S. Supreme Court decision in the last 30 years where being a Latino woman would have related to the case. I suspect there were no such cases.

And even if there were, it seems to me that it would be more appropriate for Sotomayor to recuse herself from deciding the case than to use her experiences as a Latino woman to decide it—especially in light of her “white male” comments. The case is supposed to be decided based on the law, not externalities like one of the justice’s personal experiences that have nothing to do with the facts of the case. Furthermore, appellate courts, like the U.S. Supreme Court, are only involved in the question of whether the lower court judge applied the law correctly to the facts, not deciding what the case facts were. They are the equivalent of the committees that hear appeals of baseball games played under protest as to whether the umpire at the game correctly applied the rules to a situation that occurred during the game. They do not decide whether a base runner was safe or out or whether a pitch was a ball or a strike. Only the lowest courts are allowed to decide the facts of the case. Any attempt to enter Latino woman experiences into evidence would almost certainly be denied by the trial court on grounds of irrelevancy and prejudicial nature not to mention vagueness.

In his 5/29/09 newspaper column, Thomas Sowell makes a point I have not seen anywhere else. He ask the rhetorical question, “If you were about to get brain or open heart surgery, which surgeon would you prefer: one with a ‘compelling personal story’ or the best one you could get—who perhaps was born wealthy?” [I paraphrased to save space] He goes on to say that the U.S. Supreme court performs “open heart surgery” on the “heart” of America—the Constitution—regularly and calls for the most qualified—not the most “empathetic” judge to be nominated to that court.

Sowell also notes that Sotomayor did not show any empathy for the white and Latino firemen in Connecticut who passed the test for promotion to lieutenant and captain, but who got no promotions because they were deemed to be too white as a group. Sotomayor decided against them and did not even provide the usual explanation of why they were not victims of illegal racial discrimination.

6. The phrase “Latino woman with the richness of her experiences” juxtaposed against the hypothetical “white male” also implies that a white male would have fewer experiences or no experiences or have experiences that lacked “richness.” Memo to Latinos: believe it or not, even though we all look the same to you, we white people actually have “experiences,” too. Please get out your violin and I’ll tell you about my alcoholic father, single mother who worked as a secretary, the back-in-the-day discrimination against my Irish and Cherokee ancestors, my family being discriminated against in the name of affirmative action, etc., etc. There are also “experiences” that do not require a violin but that are nevertheless useful in deciding court cases, like being a prosecutor or defense counsel or Wall Street lawyer or corporate lawyer or bankruptcy lawyer and so on.

7. White males may not have lived “that life” that a Latino woman lived, but they most certainly have lived a life, with its own “richness of experiences,” perhaps with greater variety or more intense experiences than many Latino women’s lives. The notion that the life and experiences of a Latino woman are superior to those of a white male for the purpose of being a judge, just based on knowing nothing about them but their skin color, is obvious racist bullshit.

My son got into an argument about Sotomayor’s Litana woman comment. His opponet said it was taken out of context. That is almost always an intellectually-dishonest argument designed to distract the audience and waste the opponent’s time. See my article on intellectually-dishonest debate tactics complete with multiple lists of the honest and dishonest tactics. My son fell for it and read the whole speech. As we expected, there was noting in the context to change the meaning of the above statement. For your edification, here is another comment fom the speech. See if it makes you think it contradicts the impression left by the famous quote above.

For me, a very special part of my being Latina is the mucho platos de arroz, gandules y pernil - rice, beans and pork - that I have eaten at countless family holidays and special events. My Latina identity also includes, because of my particularly adventurous taste buds, morcilla, — pig intestines, patitas de cerdo con garbanzo — pigs’ feet with beans, and la lengua y orejas de cuchifrito, pigs’ tongue and ears. I bet the Mexican-Americans in this room are thinking that Puerto Ricans have unusual food tastes. Some of us, like me, do. Part of my Latina identity is the sound of merengue at all our family parties and the heart wrenching Spanish love songs that we enjoy.

Thomas Sowell compaliend about teh invalidity of the taken out of context argument redgarding Sotomayor’s statement in his 5/5/09 column.

Where policy is made

The other comment she made that is getting much play is these remarks at a 2005 legal conference at Duke University's law school:

The court of appeals is where policy is made. I know this is on tape and I should never say that, because we don't make law, I know. Um, OK. I know. I'm not promoting it, I'm not advocating it.

Again, it’s not a court opinion, just her momentarily forgetting a recording is being made of comments she apparently has made many times in private. I think this one stands on its own. She said it. She herself immediately critiqued it accurately. Then she denied the obvious meaning in a way that no one will believe. It reveals what those who believe in the Constitution fear about liberal judges—they see themselves not as interpreters of ambiguities in laws, but as those who change the laws to fit their own notions of social justice.

Compelling personal story

Almost everyone from both sides of the political spectrum has applauded Sotomayor’s “compelling personal story.” They all use that exact same phrase as if some Fuehrer ordered it. Apparently, they fear of being called racist if they do not applaud her “personal story.” I do not find her “personal story” compelling. It’s not even her story.

She lived in a government housing project when she was a kid. That’s not an accomplishment. She and her mom lived in public housing, but she went to private school—Catholic for all twelve grades. A caller on Rush Limbaugh said Co-Op City, apparently where Sotomayor grew up, was not as bad as the phrase “public housing project” implies.

But, you say, it is an accomplishment that she went from such humble and difficult beginnings to Princeton, Yale Law School, Federal District Court Judge, Federal Appellate Court Judge, and being a U.S. Supreme Court nominee.

How do you know? Sounds like the usual affirmative action and hanging around with politicians to me. Indeed, it sounds almost identical to Michelle Obama (Princeton and Harvard Law and law firm work in copyright law) or Obama (Columbia and Harvard Law). I previously wrote about Michelle and Barack Obama being the poster children for affirmative action.

A video surfaced in which Sotomayor called herself the "perfect affirmative action baby" and admitted her test scores were lower than those of her classmates at Princeton. In other words, we are about to elevate to the U.S. Supreme Court a woman who owes her prominence to racial discrimination against the better qualified whites or asians whose seat she took at Princeton, Yale Law, and on the federal bench. That’s not a “compelling personal story.” It’s a racist outrage. We ought to be naming to the Supreme Court the highest ranking non-affirmative action graduates of Princeton and Yale law, not a woman who had no business even being there.

What about me? Do I have a “compelling personal story?” My father was an alcoholic. I had to call the cops on him on a number of occasions. Once, a social worker came to my school and said he was going to place me and my brothers in foster homes. My mom, who had a high school diploma, had to become the bread winner. We were eligible for, but my mom never got, food stamps. She finally separated from my father at the end of my junior year of high school.

Media accounts give Sotomayor credit for growing up in a building “right by a major expressway.” I was not aware that was an accomplishment or even a hardship. Half the people in New York, both rich and poor, live right next to a major highway. The other half live on city streets where they hear horns and sirens 24 hours a day.

One of the houses I lived in was literally in the medial strip between the north and southbound lanes of a major highway. My brothers and I slept in the unfinished attic of that one-bedroom house. Another place where my family of five lived growing up was in a two-bedroom apartment above a beauty salon on an old main street. It was the only landlord who would rent to a woman with three sons and an unemployed husband. How many “compelling personal story” points do I get for that?

I won a tuition scholarship to Rutgers University and an appointment to West Point. My skin color, white, was no help. I graduated from West Point which I daresay was harder than Princeton. I did a tour in Vietnam, which was more dangerous than Yale Law School. Several years later I got into Harvard Business School, again, in spite of the major handicap of white skin. I got my MBA (paid for out of my own pocket except for about $300 a month of GI bill for 18 months) and became a successful writer and businessman. Indeed, I mentioned my whole early life story on page 4 of the book I sell the most copies of: Succeeding. Here is what I said, in 2003, about what politicians or media types might call my “compelling personal story.”

Not much of a handicap

But I must also add that I do not regard my childhood as much of a handicap. It seems to me that I had a pretty normal childhood that in no way could be used as an excuse for not succeeding. Nor do my humble beginnings make what I have accomplished a much bigger deal than if my childhood had been more affluent. This is America. Everybody can succeed. Humble origins are almost irrelevant to your subsequent success. God bless America.

[Emphasis in original]

Sotomayor can shove her “compelling personal story.” She is almost certainly just another “disadvantaged” minority who pushed a better-qualified, harder-working, perhaps equally poor, white or asian aside so Princeton, Yale, Bush, and Clinton could make their politically-correct racial quotas. “Look at all the brown-skinned people on our campus. Are we wonderfully enlightened, unracist white people or what?”

It’s her MOM’s story, not hers

The heroes in Sotomayor’s “personal story,” and mine, are our mothers. Sotomayor and I were just kids. The “personal stories” in question were those of our moms. My mom came of age during the Depression. Her dream was to wear a white collar rather than a blue one as an adult. She studied stenography and typing at Catholic school toward that end. Her dad wanted her to quit school and get a job. Her mom saved her from that fate.

Sotomayor’s mom was a nurse, way higher up the food chain from my secretary mom. My mom had three sons and an unemployed alcoholic husband to take care of. Nurse Sotomayor was a widow with a son and a daughter. (The Supreme Court nominee herself is a divorcee with no children.) Both Sotomayor’s mom and mine sent us to Catholic school, although in my case only for five years, not 12. I grew up in a series of small towns and suburbs; Sotomayor, in the worlds greatest city. Sotomayor’s mom came of age before having brown skin could be used to get affirmative-action free passes. The same was true of my mom’s gender. In both cases, their minority status (Latino and/or female) were great handicaps that our moms had to overcome. Sonia Sotomayor and I were little more than school children spectators to the “personal stories” in question. That she is now taking credit for her mother’s heroic struggles, or for her affirmative action degrees and political appointments, is despicable.

I would not be surprised if the stories of the whites or asians she pushed aside are not more compelling. After all, they got where they got on merit, not skin color. Furthermore, they also had to overcome the enormous handicap of having politically-incorrect skin color when they reached college age and later. Sotomayor got a “Go to multiple Ivy League universities and high political appointments free” card.

In a larger sense, neither Sotomayor nor I had an unusual experience growing up. America has long been full of moms who quietly do what mine and hers did. I would guess that about 40% of Americans have similar stories. No one should even bother mentioning it when discussing her qualifications for Supreme Court.

The UNrichness of Sotomayor’s experience

In two respects, Sotomayor’s experience exhibits notable UNrichness: She is a childless divorcee. Most adults who are middle-aged or older have had a successful marriage and been the parents of one or more children. An argument could be made that a childless divorcee who lacks two of the most common and important experiences life had to offer: successful marriage and children—should be excluded from the Supreme Court by a clause in the Constitution like the clause that prohibits non-“natural-born” presidents. Indeed, there is more reason to exclude those who have never been married or parents—like Justice David Souter whom she is replacing—than there is for the “natural-born” requirement for president.

Not the best qualified

When Sotomayor and I were kids, the U.S. Supreme Court was a revered institution for the most part because its justices were considered the best judges on earth. When a vacancy occurred, the American Bar Association would create list of the best judges in America based on their educations, lawyer and judicial records, publications, and so on, and one of those was usually the nominee. I don’t know if the Bar Association even bothers with that list any more. It’s all political now.

Does anyone believe that Sonia Sotomayor is anything but a political hack? Does anyone even believe she is even the most qualified Latino lawyer in America let alone the most qualified lawyer? Does anyone believe she was chosen for any reasons other than cynical patronage and future vote getting from grateful Latinos? In Chicago machine politics, when a guy gets elected alderman, he awards a bunch of political patronage jobs to the usual assortment of blacks, Poles, Jews, Irish, Chinese, and so on to keep each identity-politics group as happy as possible. I guess we should not have expected any better from a Chicago state senator—even one who promised to change the way things were done in Washington for the better.

Obama will almost certainly get away with this in terms of confirmation. He has a 59-vote majority in the 100-person Senate that has to confirm her. But this drip-drip-drip of one cynical political decision after another (e.g., earmarks, making a small segment of Americans pay all the taxes, putting his own daughters in private school while signing a law that forced two other black students on scholarship out of that same school, using taxpayers’ money to buy GM and Chrysler for the unions) erodes the respect of the public for government and the law. In the long run, America will not get away with that.

John T. Reed

I appreciate informed, well-thought-out constructive criticism and suggestions. If there are any errors or omissions in my facts or logic, please tell me about them. If you are correct, I will fix the item in question. If you wish, I will give you credit. Where appropriate, I will apologize for the error. To date, I have been surprised at how few such corrections I have had to make.