I can’t resist piling on.

Kirn writes, “The fact that she (Sotomayor) graduated from Princeton with highest academic honors and went on to reach the upper echelons of her chosen career, the law, speaks well of her intellect.”

Not necessarily. The fact is that “affirmative-action babies” are often coddled after admission just as much as they were before. Professors coddle them and later politicians do. And we don’t know a whole lot about her intellect; much of the work of federal judges is done by their law clerks, so we don’t know what a judge’s opinions reveal about his or her intellect.

Kirn continues, “but it doesn’t speak well, necessarily, of the conventional, test-based notions of merit that might well have stopped her, had they been strictly applied, before she even got started.”

That’s the well-worn affirmative-action tactic of implying that without preferential treatment, the person would have done nothing — “stopped her.” Nonsense. Without preferential treatment, Sotomayor would have gone to some other college or university, gone to a less elite law school (or maybe done something else and more productive!), and now would probably be writing briefs and arguing cases rather than deciding them. She would have had a different career, not no career.

Affirmative action isn’t a yes-or-no proposition like a light switch. It merely steers some people to different channels than otherwise. Without it, someone other than Sonia Sotomayor would have been picked for the opening on the Second Circuit — maybe someone less self-absorbed and less solicitous of governmental power, but maybe not. If so, we’d now have a different nominee for the Court, a jurist at least as good but probably better when you reflect on the Supreme Court’s reaction to Ricci and other Sotomayor decisions.

Those “conventional notions of merit” aren’t ideal, but are racial preferences better?