A few weeks ago, I predicted that President Obama’s Supreme Court nominee would definitely be a solid liberal, and would probably be a female Hispanic.
I also promised that I would not pillory the nominee. And I won’t. Because there is no point. Judge Sotomayor will be confirmed. If some skeleton is found in her closet and she has to withdraw, President Obama’s next nominee will be just as liberal, just as dedicated to justice on behalf of groups and categories rather than individuals, and that person will be confirmed.
As the President reminded his Republican opponents not long after the election, “We won.” The “and you lost so shut up and let us run the country the way we want” remained unspoken, but we got the idea.
They did win. So now he gets to pick the Supreme Court justices and the Democratic majority in the Senate gets to confirm them. I accept that. I think conservatives who are calling for battle lines to be drawn are choosing the wrong battle. This one can’t be won.
But that doesn’t mean that I like Judge Sotomayor’s judicial philosophy. I find her ruling in the Frank Ricci case deeply disturbing. As summed up by David Paul Kuhn at Real Clear Politics, the particulars of the case are as follows:
In 2003, the New Haven fire department had several vacancies for new lieutenants and captains. Candidates for promotion had to take a written and oral test. Candidates had three months to prepare. Ricci gave up a second job to study. Because he is dyslexic, Ricci paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He studied 8 to 13 hours a day. And he succeeded. Ricci’s exam ranked sixth among the 77 candidates who took the test.
But New Haven’s civil service board ruled that not enough minorities earned a qualifying score. The city is more than a third black. None of the 19 African-American firefighters who took the exam earned a sufficient score. The city tossed out the exam. No promotions were given. Ricci and 17 other white firefighters, including one Hispanic, sued New Haven for discrimination.
In 2006, a Federal District Court ruled that the city had not discriminated against the white firefighters. Judge Janet Bond Arterton argued that since “the result was the same for all because the test results were discarded and nobody was promoted,” no harm was done.
But in reality, the decision meant that Ricci and other qualified candidates were denied promotions because of the color of their skin. This is the essence of discrimination. The exclusion of a person from earned advancement because of his or her race. The Ricci case exemplifies decades of faulty policy that mistook equal opportunity for equal outcome.
When the case came before the three-judge panel of the New York federal appeals court, Arterton’s ruling was upheld in an unsigned and, as the New York Times described it, “unusually terse decision.” One of the judges who upheld the ruling was Sotomayor.
This case lays out as starkly as possible the difference between liberal and conservative philosophies. Conservatives believe in equality of opportunity while liberals believe in equality of result. Conservatives believe that justice should be color-blind while liberals believe that white men today ought to pay for the privilege that white men had in the past — even if those white men today happen to be the sons and grandsons of working-class immigrants rather than the sons and grandsons of the privileged. Conservatives believe the law ought to treat people as individuals while liberals believe the law ought to treat them as members of groups classified by ethnicity, sex, and sexual orientation.
I am not calling for a filibuster to stop the confirmation of Sonia Sotomayor. What would be the point? They won [and we lost so get over it]. The next justice is going to be a liberal who believes in the equality of outcome and different standards of justice for people based on their race and sex. So what difference does it make whether it’s Sonia Sotomayor or someone else who thinks just like she does?