Justice Sonia Sotomayor this week took the unusual step of reading her dissent in a case involving state-sponsored affirmative action in Michigan. In doing so, she showed herself not only petulant to be on the losing side in a 6-2 decision, but unable to divorce her legal reasoning from her own sense of racial grievance. It was an embarrassing but predictable performance.
In 2009, I was one of a handful of witnesses who testified against Sotomayor's confirmation before the Senate Judiciary Committee. I did so with sadness, because there is much to admire in Sotomayor's personal history.
Raised by a single mom after her alcoholic father's death when she was 9, Sotomayor overcame poverty and poor health (she had juvenile diabetes) to graduate summa cum laude from Princeton University and excel at Yale Law School. But rather than ascribe her own success to hard work -- she quickly realized at Princeton that her English and writing were deficient and began reading the classics and studying proper grammar to independently improve her skills -- she attributes virtually all her accomplishments to affirmative action. How sad.
Her myopia was clearly on display in her long, vituperative dissent in the Michigan case. At issue in Scheutte v. Coalition to Defend Affirmative Action was whether voters in the state had a right to ban racial, ethnic or gender preferences in public college admissions, state contracting and state employment through the passage of a ballot initiative amending the state constitution.
In Sotomayor's view, policies that apply the same standards to all individuals regardless of race place an unfair burden on minorities. "The Constitution does not protect racial minorities from political defeat," she wrote, joined by Justice Ruth Bader Ginsburg. "But neither does it give the majority free rein to erect selective barriers against racial minorities."
So what exactly were those "selective barriers" in the Michigan case? Sotomayor implies that the election process in a majority white state makes it difficult for minorities to prevail. But the facts in the Michigan election that banned racial preferences in 2006 suggest otherwise.
The deck was stacked against those who proposed to ban racial preferences, not the other way around. Opponents of the measure outspent proponents by 3-1. Virtually every establishment group in the state, including the Republican Party, opposed the measure, from business groups to unions to the clergy. Opponents' ads featured cross burnings and other highly charged symbols of racism to taint the initiative. Still, voters in the state approved the measure with almost 60 percent of the vote.
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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