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The Independent Institute
Commentary

Sonia Sotomayor Unfit for the Supreme Court


Suppose a nominee for the Supreme Court had consistently and repeatedly expressed the considered view that the opinions of nonwhite and/or female judges are inferior to those of white male judges. Would such statements not plainly show the nominee unfit to be a judge? After all, our nation’s jurists are supposed to render decisions based on neutral legal principles rather than on the sex, race or ethnicity of the litigants.

Judge Sonia Sotomayor’s defenders will insist that her racist and sexist sentiments should be evaluated “in context.” And rightly so. But the context here is not simply a single off-hand, unconsidered and inept statement susceptible to multiple interpretations. Her opinion that white male judges will make inferior decisions is something she has expressed again and again in prepared speeches that allowed ample opportunity to craft her phrases exactly as she meant them.

There can also be no doubt about what she meant, no matter how she now seeks to evade the meaning when it is politically disadvantageous. She did not simply make the self-evident point that diversity is important because judges’ opinions may be shaped by their differing backgrounds. Rather, she says the reverse—that the background of Latin females makes them better decision-makers than white male judges.

Note that the necessary implication of her statements is the adoption of racist and sexist qualifications for the judiciary. The implication of what she’s saying is not that diversity is good, but that it’s bad; if we want the best judges, all judges should be Hispanic women. This necessary inference is not refuted by the fact that it’s nonsense. While racism and sexism are indeed nonsense, many people believe fervently in racist and sexist ideas. And Sotomayor’s considered and repeated statements show that she’s emphatically one of them, despite the fact that she is an unusual variety of racist.

This is, of course, consistent with her most famous ruling, the New Haven, Conn., case in which she held that white firefighters who had passed a promotion test could be denied promotion because black firefighters had flunked the test. Understandably, the Supreme Court reversed this racial ruling.

What has been missed here is the margin by which the court repudiated this ruling. It is true that four of the nine justices dissented in the case. But that was because they endorsed a different theory Sotomayor had not used. As to the theory Sotomayor used, all nine justices agreed that it was wrong.

When her nomination is confirmed—as the almost worshipful statements of the senators hearing her testimony show she will be—Sotomayor will be the first openly racist and sexist Supreme Court justice in more than 65 years. The last being Justice James McReynolds, who was appointed in 1914 and served into the 1940s. A man of limited intelligence, he was a more conventional bigot who despised women and especially blacks, and refused to talk to colleagues justices Louis D. Brandeis and Benjamin Cardozo because they were Jewish.

Is diversity a good thing? Of course. But not bigotry masquerading as diversity. As the confirmation hearings are under way, the Senate Judiciary Committee must remember that there’s no room in American government for racism or sexism, especially not on the Supreme Court.


Don B. Kates is a criminologist and constitutional lawyer who is a Research Fellow with the Independent Institute in Oakland, California.