Sotomayor and Affirmative Action

Julian Sanchez argues that, while Sonia Sotomayor was given special consideration because she’s a Latina at various stages in her life, her case is “pretty close to the ideal of how affirmative action is supposed to work.”

From a pool of highly qualified candidates, you let ethnicity act as a tiebreaker. It seems self-evident to me that John Smith with Sonia Sotomayor’s resume would be a reasonable pick for the Supreme Court. I think it’s equally evident that, when it came time to choose from the highly elite people with the requisite experience and qualifications, it mattered that she was a Latina. For an institution like the Supreme Court, I have no serious problem with that being a consideration, provided we’re talking about the choice between candidates who meet the prior threshold of excellence you want any justice to surpass. It’s not like there’s some Supreme Court SAT that lets you objectively rank jurists, such that Sotomayor is “unfairly” promoted ahead of “better” candidates. Once you’re down to that elite pool, the decision amounts to a president’s highly subjective assessment of the specific character, experience, and philosophy of individual candidates, bearing in mind the composition of the rest of the court. And when you’re carrying out that level of individualized analysis, for a job that includes interpreting the meaning of “equal protection” or “hostile work environment” for a diverse population, it’s hardly mysterious why membership in a disadvantaged group might seem relevant—it’s not independent from some external, independent criterion of “bestness.”

Sotomayor got into Princeton despite subpar SATs but excelled once she got there.  She was appointed to the federal bench by George H.W. Bush over more stellar candidates because he was looking for a Hispanic nominee and had a small pool to choose from but she was both demonstrably qualified for the job and performed it well.  Presumably, Bill Clinton wanted to make the appeals courts “look more like America” and tabbed  Sotomayor from, again, a very small pool of qualified Latinas.  Now Obama has done it again.

Sometimes, affirmative action picks are obviously stellar.  Thurgood Marshall had a spectacular resume and would previously have been denied consideration because he was black.

Would Sandra Day O’Connor have been on the short list for the Supreme Court were she Sam O’Connor?  No.  Frankly, there probably wasn’t a woman in the country — let alone a Republican woman — who was superbly qualified for the Supreme Court in 1981.  Most of the law schools had excluded women until not long before then.

Clarence Thomas, were he white?   No, again.  There just weren’t a whole lot of black Republicans to choose from and it would have been politically difficult to appoint a white justice to replace Marshall, thereby turning the court back into an all-white institution.

Both had the requisite skills to do the job and proved to be competent additions to the bunch.   But neither were Antonin Scalia or Louis Brandeis.

My preference would be for every president to swing for the fences with every Supreme Court pick, going for a spectacular legal mind who would have the potential for greatness on the bench.  But I’ve got no real heartburn with affirmative action picks, either, so long as they’re of the type Julian advocates.   All manner of considerations other than intellectual greatness are going to factor in:  party affiliation, ideology, personality, age, and, increasingly, confirmability come readily to mind.  While ensuring diversity of race, ethnicity, religion, and gender isn’t something I much care about (so long as they aren’t negative factors) there’s no reason they can’t be “tiebreakers” or of minor consideration along with the others.

FILED UNDER: Law and the Courts, Race and Politics, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. floyd says:

    Bravo! Truly articulate rationalization!

  2. What are the limits of affirmative action?

    Within living memory, there was a great deal of consternation about the idea of a Catholic president. So should we regard Alito an affirmative action pick because of that?

    Law schools graduate about an equal number of men and women. Colleges overall are graduating more women than men. The trend is likely to lead to more women than men. Does this make Roberts a farsighted anticipatory affirmative action pick?

    Given the reverse discrimination of Asians in higher education (limiting the number accepted despite their higher scores), why wouldn’t Obama looked for a wise Asian?

    When affirmative action was started, we were in or coming from a time when there were definite legal obstacles. Today, economic class is more likely to be an issue than race or religion. But the notion of granting permanent victim status to some groups is so embedded in the liberal pantheon of ideas to bow to unquestioningly, that no matter the reality on the ground, it is accepted as a “good thing”.

    Given the supreme courts importance (e.g. depending on your viewpoint, the decision by 5 justices has allowed the legal killing of over 40 million Americans), shouldn’t we be looking for the absolute best legal minds and not be kowtowing to the “we need more white people” mindset of the left?

  3. just me says:

    Personally i am okay with affirmative action picks as long as the qualifications are there.

    I am pretty sure Sotomayor will not be my ideal justice, but I don’t think she is unqualified either. I find it difficult to argue against her confirmation. I have no doubt though that there are brighter and capable legal minds out there that could be nominated, but she isn’t an idiot and should be capable of the job.

  4. The “brightest” are often the most narrow.

    There is no requirement that a justice be a lawyer or judge. No requirement that they be a legal scholar, let alone a particularly brilliant legal scholar. These are all invented criteria.

    It makes you think that maybe the Founders wanted justices with a broader base of knowledge. Maybe, just as they were suspicious of kings, they were suspicious of ivory tower intellectuals who know nothing outside of their specialty.

  5. PD Shaw says:

    It makes you think that maybe the Founders wanted justices with a broader base of knowledge.

    The Founders all selected lawyers to the Supreme Court, but many had diverse experience outside of the law. See John Marshall’s bio for an example. I think some of this is mainly just enhanced specialization in today’s world. I’m not sure it’s possible today to have been a Captain in the Army, foreign minister to France, have a successful private law practice, and have served in Congress and in the President’s cabinet by the age of 45.

  6. PD Shaw says:

    Interesting fact: over 40% of all Harvard Law School graduates that ever sat on the SCOTUS are currently sitting there. (And that’s not counting Ginsburg who attended there, but graduated from Cornell)

  7. PD:
    It’s possible not to have spent your entire life in a law library. Which is what you end up doing if you need conservatives to anoint you as a brilliant legal scholar.

    I am always amazed that conservatives who sneer at every other sort of academic love the legal academics. An ivory tower’s an ivory tower, regardless of your “major.”

  8. An Interested Party says:

    It figures that a post like this would rattle a few chains…how horrifying that choosing a Supreme Court Justice involves a little more than just a simplistic choice of the “best” legal mind…like James wrote, without some form of affirmative action, conservatives never would have had their hero, Clarence Thomas, sitting on the Supreme Court…what a tragic loss that would have been…

  9. Mike says:

    I think the issue is not that affirmative action sometimes works – it always will work sometimes – the issue is that it is outdated and creates an ongoing perception that if you see a certain ethnicity in a key job, you think wait a second. That is not always the case and the thought may be dispelled after meeting the person but it is much more common than most people want to admit. there was a study done for VA law schools in early 2000 which the law schools themselves did not want published – the results are pretty shocking and demonstrate that as a whole, affirmative action is a failure.

  10. ac halle says:

    Simple merit?
    Where did that little bastard go?
    AA is long past it’s prime.
    We keep setting up ‘systems’, ‘groups’, ‘logistical interface’, Jesus Christ, where do the excuses end and actual work begin.
    What is left of this republic is so far down the road of EXCUSES, and non responsibility of action, it is almost humorous.
    No funny in 2010.
    The whip will come down.
    We are a joke.

  11. kth says:

    Just consider for a moment the possibility that conservatives got a better deal, ideologically, because Obama factored diversity into the equation. Given that there’s nothing in Sotomayor’s judicial record that suggests she will be a dramatic departure from the voting pattern of David Souter: would conservatives have been happier with a more reliably activist liberal nominee whose race and gender weren’t taken into account (especially as they probably couldn’t have stopped his/her confirmation anymore than they could Sotomayor’s)?

  12. superdestroyer says:

    The problem with Affirmative Action is that it violates the constitution and goes against the Supreme Courts own ruling about separate and unequal.

    The worst problem with Affirmative Action is that it is the gift that keeps on giving. If blacks and Hispanics could get a one time use only, AA card then Sotomayor could have used it to get into Princeton but should never have been aided again. The Princeton admission was a huge gift that 99.9% of High School students had zero chance of getting. Why should Ms. Sotomayor keep getting a leg up after the first one?

  13. Dave says:

    I have no doubt the she (Sotomayer) is a very qualified jurist in regards to the law. My concern is that she is racist if not also a bigamist, she is also sexist. She can claim all the she wants that her comment fell flat and did/ does not reflect her views, that might wash if she had only said what she did once , but she said it on numerous occasions, so apparently she does believe that and it does reflect her views. She also makes rulings that are based on emotion, rather than on the facts/merits of the case.
    She was picked for her race and sex, and damn those that are opposed to her elevation to SCOTUS. AA and the PC crowd are succeeding in their mission to hamstring this country

  14. An Interested Party says:

    How exactly is Judge Sotomayor a bigamist? Or is bigot the word you were searching for?

    AA and the PC crowd are succeeding in their mission to hamstring this country

    Oh didn’t you know? It’s all a grand conspiracy among all minorities to destroy this country for all its years of treating them badly…