Bench Memos

More Troublesome Revelations about Sotomayor and Ethnicity

The New York Times has an article today headlined “Videos Reveal Sotomayor’s Positions on Affirmative Action and Other Issues.” It is not very reassuring.

In particular, she appears to be solidly in favor of preferential treatment based on national origin. For instance, according to the Times, in the videos she “rejected the proposition that minorities must become advocates of ‘selection by merit alone.’” She repeats the often-disproved canard that standardized tests have “cultural biases” that are “built into testing” — and the common but illogical prescription of overlaying racial and ethnic preferences onto the tests (rather than fixing or not using the supposedly biased tests). She insisted that she herself received such preferential treatment. She acknowledged that, while serving on the board of the Puerto Rican Legal Defense Fund, she encouraged “cases attacking civil service testing.”

She also said “diversity improved the legal system — like having a Hispanic judge in a case where a litigant and his family is Hispanic, and who can translate what is happening into Spanish.” So, we can assume that all Hispanics speak Spanish, and that no non-Hispanics can, and that having this translation ability at the ready justifies the use of preferences in judicial selection based on national origin? And she repeats themes from her notorious “wise Latina” speech: “Since I have difficulty defining merit and what merit alone means, and in any context, whether it’s judicial or otherwise, I accept that different experiences in and of itself, bring merit to the system. . . . I think it brings to the system more of a sense of fairness when these litigants see people like myself on the bench.”

As I said, all this is not very reassuring.