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Nasty Business--Steele on Sotomayor

By Jack M. Balkin

The lead Op-Ed in the Wall Street Journal by Shelby Steele excoriating President Obama for nominating Judge Sotomayor is just plain nasty. And the presupposition of his argument, that Judge Sotomayor is unqualified for the position, is absurd. Steele writes:

The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit. (Here, too, is the ugly faithlessness in minority merit that always underlies such maneuverings.)

Her Hispanic heritage no doubt played a role in her selection. So what? Presidents have always considered such factors in their appointments (as Reagan did with O'Connor and Bush did with Thomas). At any given time, a multitude of lawyers possess the ability, knowledge, and character necessary to sit on the Supreme Court. There is no such thing as the "best" person for the job. Presidents narrow the list to qualified people and then factor in other considerations, including rewarding political constituencies.

On what basis does Steele assert that Sotomayor was not selected for her merit? She was a prosecutor, a corporate lawyer, a federal district judge, and a federal appellate judge (with vastly more judicial experience than Justice Roberts). Steele appears to suggest that she was selected because she is Hispanic and therefore her selection was not based on merit. The flaw in this reasoning is obvious.

Where Steele goes completely off is in his suggestion that Sotomayor has gotten ahead by playing identity politics rather than pursuing excellence:

Judge Sotomayor is the archetypal challenger. Challengers see the moral authority that comes from their group's historic grievance as an entitlement to immediate parity with whites -- whether or not their group has actually earned this parity through development. If their group is not yet competitive with whites, the moral authority that comes from their grievance should be allowed to compensate for what they lack in development. This creates a terrible corruption in which the group's historic grievance is allowed to count as individual merit. And so a perverse incentive is created: Weakness and victimization are rewarded over development. Better to be a troublemaker than to pursue excellence.

What is Steele talking about? Sotomayor may have benefitted from affirmative action to get into Princeton, but she graduated summa. Not only was she competitive with whites, she excelled. Her entire life story is about striving for excellence.

Conservatives who oppose her nomination should stick to questions about Sotomayor's judicial philosophy. They have no grounds to question her qualifications for the job.

Full post as published by Balkinization on June 08, 2009 (boomark / email).