Posted by Brad @ 1:49 pm on May 30th 2009

I Don’t Care About Affirmative Action

I know that’s a very un-PC thing to say, and me being a young white man, more than a little hypocritical. Yet I know it animates a lot of liberals and conservatives who otherwise roughly fall in with me on various issues, and I just can’t drum up much interest.

It is not that I don’t believe there are very real racial issues in America today—of course there are. People are still discriminated against, and on the flip side structures and cultures are put into place to try to combat that that wind up being obnoxious and collectivist tools of thought enforcement. But, for the most part, I think the much vaunted standard of “equality of opportunity” is here. It is not perfect, by any stretch, but it never will be given the soup of prejudices, real and imagined, that will always exist in the human condition. Racism will never be dispelled, nor sexism, nor any other -ism. That does not mean you ought to stop trying, but it also does not mean you must remain hyper-vigilant. You just do the best you can, and I think we’ve, on the whole, done pretty good, at least as far as the major institutions or macro-policies go. On an individual level, of course, people can still be narrow-minded bigots, but that’s part of the reason why I dislike treating this issue on anything but a case-by-case basis. It’s the preoccupation with it on a societal level that disinterests me.

This, of course, is informing a lot of my reaction to the reaction to Sonia Sotomayor. We discussed last week her comments about how her latina-ness might inform her judicial thinking, and I say “fair enough” and leave it at that. I am sure it does, as I am sure my white male-ness would inform mine, the difference being that we are in no danger of running out of sympathetic minds towards whiteness or maleness in our political or judicial superstructure (well, unless you read a lot of Mark Steyn) so, on balance, I can buy that it’s probably a Good Thing to have more perspectives on courts. Certainly, if you buy the demographic data, hispanics or females are, in one case not really a minority at all, and in the other case may not be for long, and yet they still are, decidedly so, in the seats of power which are given the task on passing judgment on behalf of society. I don’t think a person should be considered solely for the demographic swath they might represent, but I also can understand it not being a neutral consideration either.

So maybe my “not caring” isn’t so much that I don’t have any interest in the issues, but that, for me, they come out to be more or less a wash.

I can agree, to some extent, with the crowd that believes society has become far too interested in thought policing, and now and again that DOES animate me (I was very outraged, for instance, in the treatment of Larry Summers at Harvard, and I get very, very angry at cheap accusations of “racism” or “sexism” or whatever at political or personal enemies). But I can also agree with Megan McArdle in this post, which makes the point that there’s a difference between vigilant about such things, and being thoroughly preoccupied with them (it’s easy to see how the aforementioned Steyn, or a guy like Pat Buchanan or Tom Tancredo, have swung way too far in the latter direction). Another point she makes that I’ve been making here is: really? We have a new Supreme Court nominee, in this day and age, and we’re worried that she might be too sympathetic in racial discrimination cases?

HL Mencken once defined Fundamentalism as “the terrible, pervasive fear that someone, somewhere, is having fun”. I’ve been thinking of this a lot watching some of the attacks on Sotomayor, but I’d frame the critics as suffering from the terrible, pervasive fear that some brown person, somewhere, is getting away with something.

Posit that everything the critics say about Sotomayor is true; that indeed, everything they say about affirmative action is true. Is this the biggest problem facing America? Is this the biggest problem facing America from Sonia Sotomayor?

Given my politics, I am probably not going to like how she rules on many, maybe even most, issues. But almost none of those issues involve racial preferences, which, even if they are a problem, are a small problem for America, affecting fewer people than almost any of the other major policy questions we’re debating today. Making race, or racial politics, the central complaint, makes it seem like your biggest policy priority is making sure that not one minority in the land gets anything they don’t deserve. But hey, we all get things we don’t deserve. I’ll go further: almost all of us get something we don’t deserve as a result of our race, including white people. Perhaps even especially white people. […]

Sonia Sotomayor is not manifestly unqualified to be a Supreme Court justice, so focusing on affirmative action is completely irrelevant. You can argue with her politics or her legal judgement, and hey, I’m all ears. But the affirmative action complaints aren’t advancing our quest to find out whether or not she’d be a good justice. They’re just alienating the people you want to convince.

Or, as Andrew Sullivan put it the other day. “This is so 1995”.

But, I don’t think any issue ought to be off the table, so let’s take it, real quickly. The purported fear of Sotomayor on racial issues, as I understand it, is that she will be too much of an affirmative action crusader (there is also the point, as James makes, that there were probably more qualified candidates out there once you take gender and racial political considerations away, and that is almost certainly true, though that’s the political realities we live in—although I would also add that that point doesn’t much animate me either, given that I’m pretty sure you could pick a few hundred of the top judges on the federal benches and they’d all be roughly equally qualified and the probabilities of them making Great or Terrible Justices would come out roughly the same as well). There is a very quick answer to the question of how Sotomayor will judge racial questions that come before her on the court. Look at how Sotomayor has judged racial questions that have come before her on the court (novel, ain’t it?).

Take it away Scotusblog…

Iíve now completed the study of every one of Judge Sotomayorís race-related cases that I mention in the post below. Iíll write more in the morning about particular cases, but here is what the data shows in sum:

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissentís point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1. […]

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.

Fair enough. That matches, more or less, my first impression of her. She’s a pretty milquetoast jurist, inoffensive but by the same token unlikely to shake up the court in any profound way (for good or ill). Even on questions of race, where, to listen to the dialogue on her, one would expect her to be her MOST radical, she is, if anything, skewed the other way, towards consensus and prone, more often than not, to strike down claims of racial discrimination (at roughly the same rate, even a bit less, than most white male jurists). If anything, there is at least some support that on this issue, abortion, and probably a few others, the meme starting to develop that she might turn out to be a pretty big disappointment to liberals hoping for a full-throated liberal voice on these matters on the court has some merit. She’s sort of an Obama candidate. A cipher for the Grand Liberal Dreams that, in reality, is a pretty pragmatic middle-of-the-roader. If anything, I think conservatives should perhaps be a bit more satisfied at how un-game-changing she is, and liberals a bit more critical.

That settles it for me, then. I don’t care about affirmative action or racial discrimination cases. Or rather, I do, but it ranks really, really low on my list of concerns I might have for the future of this court.

Unfortunately, I have a feeling it sucks up about 80% of the confirmation hearing.

5 Comments »

  1. I think you are underestimating this issue. At its most basic level affirmative action attacks competence, and that hurts everyone and society in general.

    Take the Ricci case, for example. Yeah, being a fireman is not all about intelligence, but an informed, prepared and intelligent fireman, will on average, do a better job then an ill-prepared and incompetent one. This is particularly true for leadship positions, which the test was screening for.

    This is true for all sorts of things, such as medical personel of all sorts, police, pilots, etc., all of which are subject to affirmative action issues. Search on MLK hospital in LA to here some medical horror stories.

    Also, AA corrupts the political process. The civil service exams were created to stop political bosses from awarding jobs to their supporters. In many cases AA is just an attempt to get around that and reward supporters of color jobs for their support at the polls. We are going backwards on this one.

    Finally, there are very basic issues of justice involved. Do you know a recent Asian (for example) immigrant is entitled to preferential treatment for government contracts under minority awards programs? This makes absolutely no sense but is the policy of the land. It is fundamentially unfair and unnecessary

    It is worth taking this appointment to have a discussion about AA, which is an important and divisive issue in this country.

    Comment by daveg — 6/1/2009 @ 2:24 am

  2. I may have spoken too soon about intellegence being a requirement for the command level fire position under discussion in Ricci.

    From the Oral Arguments in Ricci:

    I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. … Please look at the examinations. … You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don’t do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn’t require any knowledge to do the job.

    Sounds compelling to me, actually.

    Sotomayor on Ricci.

    Comment by daveg — 6/1/2009 @ 10:45 pm

  3. That should be “intellegence not being too great a requirement.” It is obviously very important.

    Comment by daveg — 6/1/2009 @ 10:46 pm

  4. I don’t think it wise or accurate to conflate AA in general with Sotomayor’s decision in Ricci. Everything I have read, including the transcript daveg linked, suggests that this was a conservative decision based upon a narrow reading of the law, and that it would have been far more, er, judicially activist, to go the other way. It seems to show distinct respect for precedent, stare decisis and all that. Combined with her finding in the white racist cop case, and the analysis of her findings in 96 other race/AA/discrimination type cases, I think it is the left that will end up a bit suprised with this Justice, particularly her apparent deference to all things government or cop. She offers little for a libertarian to love, except possibly on First Ammendment issues.

    Comment by Jack — 6/2/2009 @ 6:52 pm

  5. Incidentally, daveg, assuming you are attempting to make your case here, i.e., convince people, VDARE’s Steve Sailor is about the last person you should use.

    Comment by Jack — 6/2/2009 @ 7:01 pm

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