Judging through race–colored glasses

Barack Obama’s selection of Sonia Sotomayor for the Supreme Court is par for the course with this president, a man who ascended the presidency on the basis of a compelling personal story and a bag full of bromides about post-partisan hope and change. Those who bought the Obama schtick may not have known it then, but they elected a hyper-partisan pol with big dreams of remaking America into a social justice utopia where the ends always justify the means. Rules—and indeed the rule of law—mean little in this world where grievance politics dominate, and the playing field shifts regularly to protect those suffering all manner of “discrimination” at the hands of the (white) power structure. Its typical class warfare, only this time it is practiced with extreme efficiency and on the backs of a huge Congressional left-wing majority. For those who believe that America is a meritocracy and should be truly “color-blind”, the country is now being run by those who see everything through race-colored glasses.

The nomination of Sotomayor is a perfect example of this. Obama picked her not because she has the finest legal mind in the country (she does not), but because of she is an Hispanic woman who has a personal history that is appealing. She grew up poor in the Bronx and worked hard, and made something of herself. She also satisfies two check boxes on the identity politics checklist—being a woman and a minority—which brings Obama praise from NOW and other interest groups.

Ironically, Sotomayor’s story is little different than that of conservative Justice Clarence Thomas—a point eloquently made by Kim Strassel in today’s Wall Street Journal. But whereas Thomas’ personal struggles led him to embrace the lesson that if “I can do it, so can others”—Sotomayor fell firmly into victimization’s clutches, where she joins a legion of other minorities in the belief that the system is arrayed against them. The irony, of course, is that the evidence of their own success from hard-scrabble beginnings has done nothing to dissuade them from their hardened belief that somehow “the man” is out to get them. This is yet another example of how facts have little bearing on the “feeling” politics practiced by the left.

Sotomayor has made it clear that her view of the world—and the law—is based principally on her gender and background. It is something that she feels makes her better positioned to “come to a wise decision” than is a white man who hasn’t been subjected to the devastating discrimination that people like Sotomayor see lurking behind every tree. If you view America as a mean place where Hispanics, women and other minorities need protection, then I suppose this is a reasonable position to take. But is this what a Justice of the United States Supreme Court should believe? Someone appointed to intepret the Constitution for all Americans—white, black or other? A process that, by definition, must be impartial and based on legal fact and analysis?

As it happens, a famous case of Sotomayor’s from her tenure on the Second Circuit Court of Appeals is now being reviewed by the current Supreme Court—as the WSJ outlines today in the case of the New Haven Fire Department.

With a single paragraph, Judge Sonia Sotomayor and two colleagues dashed the hopes of firefighters here who believed they’d scored high enough on exams to win a promotion.

The three federal appeals judges said last year the city had the right to reject the results of two tests because no black firefighters scored high enough. The ruling is now turning into perhaps the most contentious of the 4,000 Judge Sotomayor made in 17 years on the federal bench, and it is likely to come up in her Supreme Court confirmation hearings. The justices whom she may soon join on the high court are expected to rule within weeks on the case, which they took on an appeal by white firefighters.

The facts of the case are as follows:

A total of 118 applicants took the two tests for promotion to lieutenant or captain in late 2003, and 59 earned passing scores. Because there were limited vacancies, only the top scorers were eligible for promotion—a group of 17 whites, and two Hispanics. None of the 27 black firefighters with passing scores was eligible. New Haven city lawyers advised the city’s Civil Service Board to reject the results, warning the city could be exposed to a race-discrimination lawsuit by minority firefighters if it let the exam stand. The board heard conflicting views on whether the test could have been re-engineered to have a less disparate impact. It split 2-2, which meant the exam wasn’t certified.

This is classic liberal social engineering at work: you give a merit based test to determine promotions and tell firefighters to study hard for it. They take the test and when the results come back in a way that you don’t like, you throw the results out and say “nevermind”. If no blacks and only two Hispanics scored high enough, it must be because of some discrimination at work. Let’s not reward those who passed—let’s reengineer the test so more blacks and Hispanics will pass.

Sotomayor was at the heart of this decision—stating that it was in the “state’s interest” to throw out the results so that the outcome was more to her liking. And what about the white firefighters who have now been discriminated against? To Sotomayor, it doesn’t matter, because she lives in a world where color matters more than principle. This is a woman who values outcomes over equality—even if it results in a decision that is reverse discrimination.

We can take some solace that her decision in New Haven is almost certainly going to be reversed by the current Supreme Court. But it leaves little comfort that we are now poised to put this very same judge on the highest court in the land for a generation to come.

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