The Sotomayor Case And Affirmative Action

The more one digs into that conjectural, fact-free Jeffrey Rosen article in TNR slandering Judge Sonia Sotomayor, the more one finds. We learn that Rosen's brother-in-law, Neal Katyal, would stand to gain a promotion to Solicitor General if Sotomayor is passed over in favor of another top pick, current Solicitor General Elena Kagan.

Additionally, Katyal himself was once a clerk for a Second Circuit judge, obviously raising the question of whether he was one of the anonymous sources for his brother-in-law's hit piece disparaging Sotomayor's intellect and character.

One can question whether this Rosen/Katyal relationship should have been disclosed by TNR (on balance, it was probably unnecessary), but at the very least, these are illustrative of the types of problems that inevitably arise when anonymous sources are used so casually in a political culture rife with incestuous relationships and conflicts of interest.

Katyal argued the Hamdan case at the Supreme Court and would make a fine Solicitor General, and Kagan by all accounts would be a good selection. The larger point concerns conflicts of interest, and more important, the lightning-quick establishment response to define Sonia Sotomayor based on a completely source-free, potentially ethically compromised screed by a member of the "sensible establishment." DougJ writes:

My first question is this: why did the attacks on Sotomayor from the right-center (Halperin, Cohen, TNR) come so quickly and in such a coordinated way?

My other question is this: is Sully’s take on this accurate?

So I will merely note how interesting it is as a media phenomenon. Washington’s old journalistic guard is not yet fully aware that the pool they operate in now is much larger than it was, and the cozy familiarity of it all – the sustenance of reputation, the quiet hierarchy of the Northwest quadrant – is now history. What might have been sent into the ether as a small provocation, summing up a coterie’s assumptions, will no longer be given credence because of its provenance. It will have to make its case in a brutally frank environment. Or fail to.

In order for this to represent real change, we have to diagnose the actual problem here. Just as journalists generally feel besieged by the new media environment and this storming of the gates by the barbaric hordes of the reality-based community, those same chatterers, mostly white men, feel besieged by affirmative action. Judge Sotomayor, who as many people consider brilliant as the unnamed sources in Rosen's report, wrote an opinion in the Ricci case allowing an affirmative action program for firefighters in Connecticut to go forward - in other words, not stepping in to halt it like an "activist judge". People like Richard Cohen have analogized her decision in that case, which they abhor, to Sotomayor herself, turning her into a doofus lucky duckie only getting consideration for the nation's highest court because of her ethnicity. Adam Serwer explains the juxtaposition between these two issues.

The reaction to Sonia Sotomayor makes the perfect case for why we still need affirmative action. She's been a federal judge since the early 1990s, she served as an ADA in Manhattan, she's worked in private practice. On paper, she's qualified, but yesterday Jeffrey Rosen, admittedly knowing next to nothing about her, wrote that the summa cum laude from Yale Law School Princeton might not be "that smart." The folks at National Review got the signal. "So she's dumb and obnoxious. Got it," wrote Mark Hemingway. Responded John Derbyshire, "Judge Sotomayor may indeed be dumb and obnoxious; but she's also female and Hispanic and those are the things that count nowadays." This from someone who believes that social statistics prove that whites as a group are smarter than say, black people. Mark Krikorian concluded that "I'm sure Mark H. is right about Sotomayor's being dumb and obnoxious, just as Derb is right about her being female and Hispanic is all the matters," but that "an Hispanic Supreme Court justice is an almost mandatory consolation prize for the amnesty folks."

This is exactly what affirmative action is meant to correct: People coming to the arbitrary conclusion that someone is "an idiot" despite all evidence to the contrary, except if you consider not being a white man evidence. Sotomayor's detractors see themselves as Frank Riccis, white men whose greatness isn't recognized because we're too busy giving brown people who can't tie their shoes certificates of achievement. But the truth is that in life and in employment, discrimination rarely manifests itself the way it did against Ricci, as something as easy to quantify as an unfair test. It's far more insidious -- a rumor, a feeling, a notion that the person standing in front of you who doesn't look like you is just "dumb and obnoxious." So you throw their resume in the "no" pile because you don't like their name, you seat them in the back of the class, you promote another person. You just can't really explain why. It's... just a feeling.

There's a fair bit of "white man's burden" rage tied up in all of this. Just watch the Chris Matthews show on a daily basis if you want to see it in action. Ezra Klein makes mincemeat of their logic as it relates to the Supreme Court pick, but it ought to be seen in a broader context. Privileged white men in positions of power think that providing opportunity for more Americans equals discrimination. They will go to any lengths, using the power at their disposal, to vindictively short-circuit that. They needlessly smeared a capable woman sitting on the federal bench because affirmative action makes them feel icky. And yet another guy on the federal bench, Jay Bybee, keeps going to work every day...