In this game, if there are too few blacks and Hispanics who are lawyers or engineers or doctors, there must be too many whites or Asians or Jews who occupy those positions. And who decides how many is too many? Does race or ethnicity entitle someone to representation in every field and at every level? Clearly the city of New Haven thought so, and it appears Judge Sotomayor agreed.
The Senate Judiciary Committee takes up Sotomayor's nomination July 13. The committee should press her on her views about proportional representation -- and not let her get away with the usual demurral on quotas. Do our civil rights laws guarantee equal opportunity or equal results? If the former, how does she justify throwing out test results that don't happen to conform to her idea of what the racial makeup of the officer ranks in a fire department should be? If test results consistently thwart promotion of minorities, should we abandon testing altogether? What are the limits of her own preference for groupthink? Should we be interested in promoting individual rights or group rights, especially when the latter interferes with the former?
Every one of the New Haven firefighters who wanted to be promoted to lieutenant or captain took the identical tests and had access to the same study materials provided by the department. The exam had been meticulously designed to test the actual skills and knowledge required on the job and to have no cultural biases. Some firefighters succeeded and others failed, based not on their race or ethnicity but on their effort and abilities.
During the original debate over the Civil Rights Act of 1964, proponents argued that it would never be used to require racial preferences or proportional representation. Americans deserve to know whether Judge Sotomayor agrees.