If you doubt that President Obama has changed American politics, consider that we are about to have the first Supreme Court confirmation hearing in almost a quarter-century that does not revolve, in one way or another, around Roe v. Wade. The appeals-court judge Sonia Sotomayor has ruled on just three cases that dealt, indirectly, with abortion. She has written a lot about racial preferences, though. That is one reason the country is set to have a knock-down, drag-out fight over affirmative action instead.
Judging from his dramatic introduction in the East Room, the President is dazzled by his nominee's Puerto Rican background. Obama has an unfortunate tendency to conflate personality and principle. "I stand here today as someone whose own life was made possible by these documents," he said during his national-security speech at the National Archives in May. As if there were any American for whom that is not true. Or as if ethnic minorities can make that claim more plausibly than other Americans. (See pictures of Judge Sonia Sotomayor.)
Obama referred to Sotomayor's "qualities" and "qualifications," but he was a lot more interested in the former than the latter. She grew up in the South Bronx, got diabetes at 8, lost her father at 9 and fought her way to Princeton and the federal bench thanks to a strong-willed mother who procured the "only set of encyclopedias in the neighborhood." She has "a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live." Obama has spoken of wanting judges with "empathy."
You would need a heart of stone not to be inspired by Sotomayor's story. But does her superior knowledge of "ordinary" people arise from being Hispanic? Sotomayor thinks so, if we believe the snippet from a 2001 speech at the University of California, Berkeley, law school that rippled across the Internet this week. She believes judges cannot help being affected by gender and ethnic identity. "I would hope that a wise Latina woman with the richness of her experiences," she said, "would more often than not reach a better conclusion than a white male who hasn't lived that life." This doesn't make Sotomayor a bad person or a racist, even if Rush Limbaugh has called her one. But it is not what most Americans would define as empathy. (See the top 10 Supreme Court nomination battles.)
A few of Sotomayor's decisions may ring a bell. It was she who ruled in 1999 that a law-school graduate with a learning disability was entitled to extra time to take a bar exam. More recently, she forbade the Environmental Protection Agency to use a cost-benefit analysis in antipollution enforcement (her ruling was later overturned). But the real fight over her confirmation will focus on her role in a case about tests for promotion within the New Haven, Conn., fire department. Although the tests were designed to be race-neutral, the pass rate for blacks was half that for whites. So New Haven threw out the test results. Several white firefighters who scored high enough for promotion sued the city. One of the plaintiffs was dyslexic and had hired tutors to help him. Sotomayor was on the three-judge panel that okayed New Haven's decision to nullify the tests. The panel did so in a one-paragraph blow-off that ignored a host of pressing constitutional issues and was striking for its lack of empathy, compassion and all those noble qualities that are supposed to come with growing up in the South Bronx. The case is now before the U.S. Supreme Court, which could well overturn the decision in the next few weeks.
Whether or not you like racial preferences, they involve a way of looking at the law that is sophisticated rather than commonsensical. If the New Haven opinion is fair, it is the kind of fairness you learn at Yale Law School, not the kind you learn in the South Bronx. Sotomayor may be a child of the barrio, culturally speaking, but the judicial philosophy she represents comes from the mandarin, not the proletarian, wing of the Democratic Party.
Affirmative action has been a revolution in American rights and in our ideas of citizenship. To judge from almost all polls and referendums over the past few decades, it is reliably unpopular. Judges prop it up. Since the election of the first black President, it has been a shoe waiting to drop. The rationale it rests on that minorities are cut off from fair access to positions of influence in society has been undermined, to put it mildly. Elevating a hard-line defender of affirmative action is thus a provocation in a way that it would not have been in years past.
Obama and his advisers may realize that their best chance to win an argument on the issue is now, when racial-preference programs are represented by a popular President's nominee and the opposition to them is represented by Limbaugh. Each side will claim to speak in the name of ordinary people, plausibly or not.
Caldwell is a senior editor at the Weekly Standard