Sotomayor: 14th Amendment Requires Affirmative Action!

On Saturday Carol Iannone pointed to a revealing exchange between Sen. Kohl (D-Wis) and Judge Sotomayor.

From the transcript:

SEN. KOHL: …. I’d like to ask you questions about a few issues that have generated much discussion. First, affirmative action. Judge, first I’d like to discuss the issue of affirmative action. We can all agree that it is good for our society when employers, schools and government institutions encourage diversity. On the other hand, the consideration of ethnicity or gender should not trump qualifications or turn into a rigid quota system. Without asking you how you would rule in any particular case, what do you think of affirmative action? Do you believe that affirmative action is a necessary part of our society today? Do you agree with Justice O’Connor that she expects in 25 years the use of racial preferences will no longer be necessary to promote diversity? Do you believe affirmative action is more justified in education than in employment? Or do you think it makes no difference?

Presumably a flexible quota system — aka affirmative action; aka racial preference — is O.K. with Sen. Kohl, but let’s move on to Judge Sotomayor’s response:

JUDGE SOTOMAYOR: The question of whether affirmative action is necessary in our society or not and what form it should take is always first a legislative determination in terms of legislative or government employer determination, in terms of what issue it is addressing and what remedy it is looking to structure.

The Constitution promotes and requires the equal protection of law of all citizens in its 14th Amendment. To ensure that protection, there are situations in which race in some form must be considered. The courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court.

It is firmly my hope, as it was expressed by Justice O’Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years race in our society won’t be needed to be considered in any situation.

That’s the hope…. [Emphasis added]

Sotomayor thus asserts, citing no cases, that in some situations affirmative action is mandatory, presumably commanded by the 14th Amendment. That will be news to the Justices she is about to join.

Roger Clegg got this right, but much of the press either didn’t report Sotomayor’s remarkable claim or reported it wrong. For example, a writer at the Los Angeles Times, for example, reported:

[t]he courts have recognized, she said, that at some times race can be considered to protect some rights. [Emphasis added]

USA Today didn’t notice the gaffe in its live coverage. Nor did McClatchy.

And just as in other, much-quoted testimony Sotomayor converted her “wise Latina” disagreement with Justice O’Connor’s comment about a wise old man and wise old woman reaching the same conclusion into a claim of agreement, so here, too, she claims to be agreeing with O’Connor while saying something substantially different. Regarding the disappearance of affirmative action as merely a “hope,” Iannone quotes a relevant passage from Justice’s O’Connor’s Grutter opinion, noting that “even the abominable Grutter is better”:

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.

I can’t escape the belief that Judge Sotomayor agrees with this statement about to the same degree that she believes in the desirability and possibility of race-blind, ethnicity-blind, gender-blind judicial objectivity.

Say What? (1)

  1. Vercingetorix July 21, 2009 at 2:36 pm | | Reply

    Grutter was handed down 6 years ago. Does Sotomayor think racial preferences should be abolished within the next 19 years? Her answer wasn’t clear on that point.

    Should all preferences end simultaneously in 2028, or would gradual abolition be okay? If the latter, why don’t we enforce California’s Proposition 209 and similar State measures now, to make progress toward O’Connor’s goal?

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