That’s the title of my new Confirmation Tales post, which examines how Sonia Sotomayor and her colleagues on a Second Circuit panel failed to give serious attention to the claims of racial discrimination brought by the white and Hispanic firefighters in Ricci v. DeStefano. Judge José Cabranes’s blistering dissent from the Second Circuit’s denial of rehearing en banc is well worth a read. Here’s an excerpt from my post:
The firefighters surely did not take any solace from the statement by Sotomayor and her colleagues that “We are not unsympathetic to the plaintiffs’ expression of frustration.” They were not undertaking to make an “expression of frustration.” They were advancing legal claims that they had been discriminated against on the basis of race. And they expected those legal claims to be addressed seriously.
For Sotomayor at least, it is also difficult to believe that she was “not unsympathetic” to the firefighters’ claims. Sotomayor was deeply distrustful of tests. As her biographer Biskupic writes, she “attributed differences in test scores between well-off whites and disadvantaged minorities to the cultural biases built into testing.” She declared herself “the perfect affirmative action baby”: “My test scores were not comparable to that [sic] of my colleagues at Princeton or Yale,” she acknowledged, so if there had been heavy reliance on those scores, “it would have been highly questionable whether I would have been accepted.”
Unlike some other beneficiaries of racial preferences, Sotomayor was deeply wedded to the system of advantages they conferred on her. Per Biskupic:
She had climbed the ladder of the law not just because she was smart and worked hard but because people in positions of power … sought to hire and promote blacks and Hispanics. Sotomayor understood that she was sometimes chosen over white candidates because of her ethnicity, but she objected to contentions that she was not as qualified or as competent because of the boosts she received.
In short, this “wise Latina” seemed to have learned from “the richness of her experiences” that claims by whites that they had been victimized by racial discrimination did not deserve to be taken seriously.
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