Phi Beta Cons

The Right take on higher education.

Sotomayor and Group Preferences


The Sotomayor hearings are bringing to light the conflict between individual vs. group rights, and whether America is a nation based on the equality of all individuals before the law or on proportional group equality enforced by law, the latter at the expense of individual citizens from unfavored groups.  

Linda Chavez’s superb testimony and her clear responses to questions brought this out to a great extent. She explained how affirmative-action supporters’ constant resort to statistical disparities between minorities’ and women’s share of the population vs. their representation in colleges, graduate schools, job categories, and the professions, is an indirect call for quotas and proportional representation. And when Lindsey Graham threw her a couple of questions defending the desire to have women and minorities in various positions, Chavez promptly responded that that desire is different from quotas or proportional representation. Again and again it is necessary to point out that the benign face of affirmative action, fairness, openness, pluralism, etc., disguises a naked spoils system based on race, gender, and ethnicity.     Sotomayor is trying to present herself as a judge who strictly follows the law. But her colloquy with Senator Kohl about affirmative action belies this. The exchange between them is of interest for several reasons. Kohl began:   
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.  
Once again, we see the delusion (or is it a deliberate deception), that considering race does not mean lower qualifications or quotas, when we know it does, and we have Sotomayor’s own words that she was admitted to Princeton and Yale with lower scores.
Be that as it may, Kohl continued:  

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?

To this, Sotomayor replied:

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.
The wider context of her remarks makes clear that she is referring to Grutter, but she has changed the meaning of Grutter from allowing the use of race as a “plus” factor — bad enough as that is — into requiring the use of race, supposedly to ensure equal protection for minorities under the Fourteenth Amendment’s Equal Protection Clause. Like Humpty Dumpty, Sotomayor can make words mean what she wants them to mean — equal protection requires unequal treatment in order to achieve what she is calling equality, namely, proportional representation of minority groups.        And Sotomayor endorsed the “hope” of Grutter’s proposed sunsetting of affirmative action in 25 years, now less than 20 years away, but emphasized that it is only a hope, with the implication that ongoing preferences may be necessary.        On this, 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.


Sign up for free NRO e-mails today:

Subscribe to National Review