June 30, 2009 | Commentary on Legal Issues
Sonia Sotomayor has broken quite a few barriers in her life. If she is confirmed as a Supreme Court justice--as seems likely--she will become the first Puerto Rican to sit on the high court. She may even become the first justice to come from one of the Bronx's notorious government housing projects. She will not, however, be the first Hispanic, nor the first Latin.
You may ask before reading on, why is that important? It wouldn't be, in a rational world. But it has been Judge Sotomayor herself, as well as her supporters, trumpeting her ethnic bona fides. The judge, moreover, has consistently displayed a weakness for the grievance industry that parallels our hodge-podge of ethnic labels. By insisting - not just in a single quote, but over a lifetime of activism - that her background permits her to use the rules of logic differently, Sotomayor has invited scrutiny on just what these labels really mean.
First let's dispense with the claims for the Hispanic and Latin landmarks. The first "honor" belongs to Benjamin Cardozo, who was appointed to the Supreme Court in 1932 by Herbert Hoover. The second goes to Antonin Scalia, nominated in 1986 by Ronald Reagan.
Cardozo, whose four grandparents belonged to the Spanish and Portuguese Jewish community, would qualify today as "Hispanic" under current Census Bureau definitions. His religion is immaterial.
Latin is of older vintage and does have some ethnic and linguistic cohesion. It, however, covers slightly larger ground than just Puerto Rico and Mexico, and takes in all the countries in Europe where Romance languages are spoken. Thus Scalia (and now Samuel Alito).
These labels, of course, are meaningless in determining whether someone can identify logical fallacies in an argument. In the case of Hispanic, the term itself is almost worthless in determining even one's origin.
The Census says Hispanic is a smorgasbord, applying to people who "may be of any race" or religion, and whose origins can be in whole or in part from Europe, Africa, Asia or the New World, as long as their ancestors transited through Iberia or Latin America.
So even if Judge Sotomayor was right when she infamously said that "inherent physiological or cultural differences" may affect judging, being "Hispanic" would determine exactly nothing.
Even if we took Hispanic to mean only Latin Americans of any race (the more conventional view), can we really say that people as different as Guatemalans, Argentines and Dominicans will reason similarly, and use the rules of logic differently from others? What quickly becomes apparent when one plows through in-depth articles on Judge Sotomayor is that the determining trait supposedly making her empathetic is not being Hispanic, but growing up poor. Journalists and commentators often conflate the two terms, as if all Puerto Ricans grew up in the barrio.
Experience, of course, does count for something. My searing childhood memories of watching my parents struggle with a totalitarian regime in Cuba made me an uncompromising defender of human freedom. I suppose that does help me in my job today as VP of communications at The Heritage Foundation. But there's nothing genetic in a trait I share with Chinese as well as Czechs.
Judge Sotomayor, however, takes hollow ethnic labels very seriously.
Indeed, she has made a career of demanding that they be used as the foundation for preferences in hiring. As a college sophomore in 1973, she asked the federal government to push the Ivy League school that had admitted her, Princeton, to accept quotas and time tables for the hiring of Puerto Rican and Mexican faculty.
Sotomayor, however, appears not to have thought through one of the most pernicious consequences of racial preferences - that they leave those who benefit from such preferences uncertain about their achievements. Small wonder then, that at Yale Law School in 1978 she took umbrage to a question posed by a recruiter from a Washington law firm.
What was the racist remark that made her complain to the dean, and forced the law firm to apologize? The recruiter dared ask, "Would you have been admitted to the law school if you were not a Puerto Rican?"
Ah ... that must have stung. But what on earth did Sotomayor expect? What else can possibly result from racial preferences? When one asks universities, companies and governments to consider one's ethnicity, one is asking that merit not be the sole deciding factor in the hiring process. Is it then not entirely fair for a recruiter to ponder, "Would merit alone have gotten you here?"
In a 2001 speech Judge Sotomayor famously said, "Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion."
It's a shame that Judge Sotomayor has gone through life thinking that American society views her with suspicion. But she's in a bed she made for herself by insisting that people with certain labels be given special preferences. Whatever the case, do we really want someone with this mindset to sit on the U.S. Supreme Court?
Michael Gonzalez, a former reporter and editor at the Wall Street Journal, is vice president of communications at The Heritage Foundation. He served in the Bush administration from 2005-2008.
First moved on the McClatchy-Tribune news wire.