Sonia Sotomayor and Affirmative Action

Jeffrey Rosen’s anonymous friends’ concerns about Sonia Sotomayor’s intelligence aside, if you want to see a real reason why we’re not likely to get the first Hispanic Supreme Court Justice any time soon just read Richard Cohen’s outraged white man’s lament about Judge Sotomayor’s ruling in the Ricci case about an affirmative action program in Connecticut. He’s really pissed about this and so is Stuart Taylor and in a country where most people are white people Sotomayor’s ruling is going to be very unpopular.

For what it’s worth, I don’t think that at this New Haven program makes a great deal of sense as public policy. That said, I don’t see any constitutional problem with most affirmative action programs. I think there are clearly cases when there’s a valid interest in promoting the legitimacy of important institutions by diversifying them, and if I were a judge I would be hesitant to say that it should be my role to second-guess elected officials about what they want to do in this regard.

Still, I wouldn’t cry to see these programs shut down and I wouldn’t cry if judges let them continue. But the din around this case ought to indicate what BS all the noises about “judicial activism” are. The grave sin with which Judge Sotomayor is charges is the sin of . . . letting the political process handle an emotionally charged issue rather than putting it in the hands of unelected judges. Suddenly, nobody wants to “leave it to the states”! It’s strange. At any rate, if you ask me the continued salience of these issues is exactly why it would be nice to see more minorities on the bench—or in major newspaper op-ed pages for that matter.