[Pearce Godwin] Sotomayor for SCOTUS?, Affirmative Action & More

[Pearce Godwin]

Just over 100 days into his Presidency, Barack Obama has excercised what some argue is the greatest power of the President, appointing a Supreme Court justice.  This person's influence over our nation will extend decades after Obama's administration has ended and is thus of huge consequence.  His pick, Sonia Sotomayor, is an Appeals Court justice with a compelling life story but a very troubling judicial philosophy as understood by looking at her past statements and cases.  

A quote most have seen by now is from a speech she delivered at Berkeley in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."  Try to imagine what would have happened to a White male who had made the same comment, only about his inherent superiority as a justice to a hispanic woman.  His career would be over.  In the face of growing pressure from Democrats, the White House has attempted to address the statement with Obama saying he is "sure she would have restated it."

Another problem for Sotomayor is the Ricci case in which white firefighters were denied promotions despite passing the necessary test because no black candidates scored high enough to be promoted.  Sotomayor dismissed the case, drawing harsh criticism from a colleage appointed by Clinton.  Her decision is likely to be overturned by the Supreme Court just before she would assume one of its chairs.  

Finally, at my alma mater Duke, she stated that "the appeals court is where policy is made."  A comment that flies in the face of the constitutional role of the judicial branch of government to interpret, not make, law.  There is very little doubt the Sotomayor will assume the bench as the first Hispanic on the Supreme Court, but I agree that while Republicans may lose the vote, they can win the argument by making a good case against judicial activism.  After all, "there is something in our political DNA that wants impartial umpires who apply the rules, regardless of who thereby wins or loses."

Obama’s nomination of Sotomayor to the Supreme Court has brought to the forefront the issue of affirmative action, both because she, a Hispanic woman, was chosen and as it relates to her court decisions and statements.  In light of the nomination, I have thought and talked more than ever about the issue of affirmative action and have decided to address the issue here and open up the comments section and PG Polls for each of you to share your view.

I’ve always viewed affirmative action as a temporal issue.  By that I mean that, like most policy problems, it is not black and white, and furthermore, that it is a matter of timing.  The day after blacks were emancipated from the tragedy of slavery in America, they certainly needed a boost to assimilate into the already advanced white society and economic market.  At some later point, affirmative action becomes counterproductive and detrimental to its own ends of racial equality.  

Affirmative action, without question, accentuates and perpetuates division based on the color of one’s skin.  The more we artificially elevate or suppress opportunity for a person based on race, the more we highlight color differences, foster resentment and cheat equality.  Any special treatment, positive or negative, someone receives based on nothing more than the color of his or her skin is quite literally racist and not the ideal for America.  The ideal is for there to be no material differentiation between people based on the color of their skin.  As an aside, I believe the “melting pot” that is the United States affords us a wonderful opportunity to celebrate and learn from diverse cultures, races and ethnicities.  I do not believe we should ever be “color blind.”  That is unrealistic and undesirable.  We all benefit from people who are different from us and rightly celebrate our shared heritage with those who are similar.  However, there is a stark difference between celebrating disparate races and scoring a person differently based solely on skin color.

As I said, I believe affirmative action was necessary after slavery and at some point becomes detrimental and wrong.  Now, whether that “tipping point” has been reached or is still some point in the future is a matter of honest debate.  I do not pretend to have the answer; however, I suspect we are not quite there yet.  To be clear, based on my experience, I believe affirmative action is still appropriate in certain circumstances but is growing less so.  A friend of mine, arguing against affirmative action, pointed to the election of President Obama as proof that the ultimate end of affirmative action had been reached and thus it is no longer necessary.  Leaving politics aside for the moment, the election of Barack Obama was an inspiration to the entire world and a huge step toward racial equality in this nation.  The intangible impact of a black man taking the oath of office in a nation where 146 years before such a man may have been a slave is enormous.  However, it is not necessarily indicative of the end game in racial equality.  Equality will have been achieved when over a 100 or 200 year span the proportion of black presidents approximately reflects the proportion of blacks in society.  Barack Obama is a remarkable man who has accomplished a first; however, I’m not sure that means we can honestly expect those proportions to equalize without a little more boosting of previously suppressed minorities.

The impact of Obama's election illustrates one of what I see as the three major justifications of affirmative action.  A black man serving as president, or CEO or doctor serves to shatter glass ceilings that children of the same race may have believed existed, giving them hope that they too can reach for the highest levels of position and success, even to be the most powerful person in the world.  When later generations are not constrained by the weight of what has never been done before, they will reach higher and achieve more, further equalizing the races, erasing the opportunity and achievement gap and moving the nation towards a time when the color of one’s skin says nothing about who the person will grow to be and need not be considered in getting them there.  For proof of this point, I look no further than the new hip hop song by Maino entitled All The Above.  In the song, Maino says, “This what the ghetto done made me; I put that on my father.  Tryna hope for tomorrow.  When I think that I can't, I envision Obama.”  

Second, all parties benefit from an educational environment that is diverse in ideas, talents, backgrounds and race.  My education at Duke was much richer for living with and learning from people of different races and cultures.  Admissions officers at Duke have told me that Duke, like most universities, practices affirmative action in making admissions decisions.  To the extent that practice enriched the diversity of my experience and thus quality of my education, I am glad they do.

Third, in professions such as law and medicine, it can be important that the demographics of the practitioners reflect that of the general population.  This is principally a matter of trust, and trust is crucial between a patient and doctor.  By and large, people are more trusting of those they see as similar to themselves, yes, even in terms of race.

The issue of affirmative action has of coursed come before the Supreme Court numerous times.  Chief Justice John Roberts said in 2007 that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  In 2003, writing the majority opinion for a Supreme Court case on the constitutionality of racial preferences in university admissions, Sandra Day O’Connor said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” 

In conclusion, I believe affirmative action is unarguably unfair on the individual level (to the white applicant who is rejected to allow for a minority’s acceptance) but is beneficial to society as a whole both today and into the future.  A world where the most qualified applicants are people of a variety of races is better than a world in which all of the most qualified applicants are white.  I, like most Americans, agree with Martin Luther King that people should “not be judged by the color of their skin but by the content of their character.”  I look forward to the day when all glass ceilings are broken and affirmative action is abolished forever.

Please comment and vote in the new polls on the site:  Do you agree that affirmative action is a temporal issue?  Do you believe affirmative action should be practiced today?

Other stories of note:

The California Supreme Court upheld the statewide vote in favor of Proposition 8, defining marriage as between a man and a woman, in what the WSJ calls a victory for democracy and Hertitage calls a victory for marriage.  The decision set off a firestorm of protests ensuring that this is an issue that will be around in California and across the nation for a very long time.  A new poll shows that 57% of Americans are against same-sex marriages.

Nicholas Kristof of the NYT has a fascinating piece about the inherent characteristics of a conservative versus a liberal. h/t Billy Hughes

Furor is growing over evidence that the Obama administration closed Crysler dealerships based on the party affiliation of the owners.

GM will file for bankruptcy today.

Business Week has a great cover story about the value of our online networks of friends.

A Texas hospital worker was forced to take down her American flag at the office.

Taxpayers are on the hook for an extra $55,000 per household.

A famous Kansas abortion doctor was killed in church this morning.

Heritage breaks down the 'largest expansion of government ever.'

Sonia Sotomayor has been described by lawers and colleages as a 'terror on the bench.'

Some believe Republicans risk losing Hispanics in opposing Sotomayor.

The NYT looks at Obama's extremely meticulous nominating process.

Opinion pieces abound on Sotomayor.  Here are several I found interesting and worth a read:

WSJ: The 'Empathy' nominee

Rove: 'Empathy' is code for judicial activism

Krauthammer: Sotomayor- rebut, then confirm

Brooks: The empathy issue

Will: Identity justice

Will: The wreck of a spoils system

Barone: Will Sotomayor's style blunt her liberal views?

Thomas: Biography & the law

Sowell: 'Empathy' in action

Joe Christenbury, just home from studying in Singapore, has written a very thorough and enlightening column with his thoughts on health care for PG this week.  Check it out!  I also got a couple of great comments in response to my look at the health care debate.  Please read what Danalee and Danny had to say.  Below is my response to their comments:

"I certainly sympathize with Danalee's concerns about socialized medicine and, like her, look to other countries currently under the system to see its downfalls. Danny made a very interesting and important point when he said, "it's not that I do not have the same fears conservatives do of a public plan, it's my understanding of how horrible our health care system is today." As to this understanding, I defer to Danny as I have very little expertise on the health care system. It is very important to appropriately frame the policy choice against the status quo. If, as Danny suggest, the current system is worse than conservatives' worst fears about a socialized system, then the lesser of two evils becomes the best policy. I am not ready to concede that to be the case because I don't have a full understanding of the problems with the current system but am convinced of the major problems with socialized medicine.

What I've come to realize with the health care debate is that where you stand depends on where you sit, sort of. More accurately than where you sit, it is where your focus and chief concern is. My point is this, if you have or most care about people who have satisfactory health care then you vigorously oppose socialized medicine for all of the reasons Danalee and the Wall Street Journal have articulated. If you can't afford or most care about people who can't afford health care under the current system then you may support any means to extend coverage universally, even through a single payer system, despite and regardless of what aggregate cost such a plan would have on the system as a whole, especially those who can now afford care. As with so many policy problems, where you stand depends on where you sit."

Note: Thanks for making May the most successful month ever for the PG Blog.  We had 571 unique visits to the website, crushing the October record of 244.  Please leave your comments and answer the poll questions on the site!  Thanks!

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Posted By Pearce Godwin to Pearce Godwin at 6/01/2009 01:14:00 AM