Serious Questions About Sotomayor and Race

With the Supreme Court narrowly striking down Judge Sonia Sotomayor's decision in the New Haven fire fighter's case, it emphasizes the importance of a single vote and there are renewed questions about her judgment on race. It brings back into focus not only her comments on the superiority of certain racial groups and women, but when combined with her recent comments on the Belizean Grove club indicate a very selective and self serving decisions on deciding when discrimination is occurring.

Judge Sonia Sotomayor can't take back her seven speeches over a decade where she talked about women's (or Latina women's) judgment being superior to men' (or white men's). But, about a week ago, almost a month after her Supreme Court nomination, Judge Sotomayor resigned as a member of the extremely exclusive all-woman club, the Belizean Grove. If she were a Republican man, such a withdrawal would have come too late. Worse, her letter announcing her withdrawal from the organization raises questions about her judgment.

In June 1990, all but one of the Democrats on the Senate Judiciary Committee and one then Republican, Arlen Specter, warned future judicial nominees that membership in an organization that determines membership based on gender could be sufficient to deny confirmation. Further, it would be held against the nominee unless they "actively engaged" in efforts to get underrepresented groups into the organization.

Did Sotomayor try to get men admitted to the club? She doesn't mention it. Instead, she has taken a far more evasive tack. "I believe the Belizean Grove does not practice invidious discrimination and my membership did not violate the Judicial Code of Ethics, but I do not want questions about this to distract anyone from my qualifications and record," Judge Sotomayor wrote in a letter to ranking members of the Senate Judiciary Committee, Chairman Patrick Leahy, a Vermont Democrat, and Sen. Jeff Sessions, an Alabama Republican.

"Invidious" means to "unfairly discriminate," "create ill will or resentment," or "causing or tending to cause animosity, resentment, or envy." It seems as if the club meets these definitions.

The club determines membership first and foremost based solely on gender, not purely on ability. In the club's own words, it is "a constellation of influential women" (powerful Wall Street business executives, former ambassadors, and judges), women who, as we have reported previously, met to discuss "how to obtain money and power" and who would "help one another in any way they can."

Does Judge Sotomayor seriously want to argue that men wouldn't want to join this organization? Will she actually go before the Senate Judiciary Committee and claim that excluding men from these benefits won't create "animosity, resentment, or envy"? More may even be at stake in joining the Belizean Grove than getting a promotion in the New Haven fire department. The Belizean Grove surely meets the standard of proof of discrimination Judge Sotomayor approved of in that very case.

But the bottom line is clear: all clubs exclude people and can't help but produce" animosity, resentment, or envy" -- some people get in the club and others don't. But that is OK. Men or women want to get together with others of their own gender. Women like places where they can be open and share their experiences with other women. But so do men, and shouldn't we hold all judicial nominees to the same standard?

From what can seen of her record, Judge Sotomayor has been willing to go quite far in finding discrimination where none exists. Now take her decision in the case Ricci v. DeStefano just decided by the Supreme Court. Fire fighter promotion tests were designed specifically to ensure race neutrality, a test designed by the respected firm Industrial/Organization Solutions and used in many municipalities, but only whites and Hispanics passed it when it was given in New Haven. Sotomayor joined the ruling that said it was fine to throw out the test results simply because blacks had not passed at a rate that reflected their share in the population. Would the Belizean Grove have passed this share of the population test for discrimination?

The real damage from her withdrawal from the club is her defense. When it would cut against her she has blinders on in seeing discrimination. This is fine for a politician, not a judge, particularly not a justice on the Supreme Court. The closely decided New Haven fire fighters case makes Judge Sotomayor's decision to find racial discrimination solely on the basis of outcomes that she doesn't like a real concern.

John Lott is a senior research scientist at the University of Maryland and the author of Freedomnomics. John Lott's past pieces for can be found here and here.