Cose: Affirmative Action and Sotomayor's Critics

In introducing Sonia Sotomayor as his first pick for the Supreme Court, Barack Obama served up the requisite lavish praise. She possessed "not only the knowledge and experience acquired over a course of a brilliant legal career, but the wisdom accumulated from an inspiring life's journey."

Those words were not casually chosen. They were aimed at a charge that had made its way into the public sphere even before Sotomayor's name was formally put forth: that she may not have the intellectual heft to serve on the high court. The suggestion originated in a New Republic article questioning Sotomayor's "ability to provide an intellectual counterweight to the conservative justices." The idea then moved into the blogosphere and other media. (In National Review's formulation, she became not only "dumb" but "obnoxious.") Let me first acknowledge, in the interest of full disclosure, that Stomayor is a friend. But even were she not a friend, I would find it odd and strangely patronizing that a summa cum laude graduate of Princeton (where she earned its top academic award, the M. Taylor Pyne Honor Prize) who was a Yale Law Journal editor is now portrayed as an intellectual lightweight. While there are any number of legitimate questions one could raise about Sotomayor's approach to judging, calling her dumb is, well, just stupid.

Susan Sturm, a Columbia University law professor who worked with Sotomayor on the law journal, sees the attack as an example of a "stereotype shaping public discourse." In short, a poor Puerto Rican girl from the Bronx must have gotten into those fancy schools because of affirmative action and therefore, despite her enviable achievements, can't really be all that smart. Sturm believes the Senate Judiciary Committee will easily see past the whispers of intellectual inadequacy. But it's worth considering, if only momentarily, why the charge gained even a modicum of credibility, why it is so galling and whether it is time to put aside the assumptions that made it so easy to question Sotomayor's competence.

I have no idea what role, if any, Sotomayor's ethnicity or gender had to do with her admission to Princeton. But it's a sure bet that Ivy League recruiters would have coveted even a white male who had overcome what she had (childhood diabetes, a father's death, life in the projects and a childhood spent speaking a foreign language) and gone on to compile a brilliant academic record at a competitive high school. And had that male graduated summa, his accomplishments would have been celebrated, not questioned. As presidential adviser Valerie Jarrett put it during a recent conversation, "The last time I checked, summa cum laude had nothing to do with affirmative action." So why is it so easy for people, on the basis of no credible evidence, to label Sotomayor intellectually suspect? Because stereotypes don't require evidence; they require only a lazy mind.

It's not just Sotomayor's intellect that is under attack. She also stands accused of being a judicial activist who will drag her experiences as a woman and a Latina into arguments where they don't belong. Those who know her well see something almost comical in the notion. Ted Shaw, a Columbia law professor who attended New York's Cardinal Spellman High School with her, says Sotomayor was "not a cause person." Her only activism, he says, "was to excel in everything she did." Ironically, even as conservative groups were making her out to be some kind of racially tainted radical, some prominent Latinos were debating whether she had been too evenhanded, too disinclined to embrace the Latino community.

As for being unduly influenced by her personal background, even Sotomayor admits that she cannot be other than what she is—that her experiences as a woman and a Latina will lead her to see things differently than a white male. Professor Sturm says Sotomayor is merely stating the obvious; that all judges have biases shaped by their experiences. Surely anyone who has closely followed the high court knows it is impossible for judges to separate their backgrounds—and biases—from their judging. In a recent New Yorker article, Jeffrey Toobin persuasively argues that Chief Justice John Roberts's life of extreme privilege and executive-branch employment has resulted in a clear bias on behalf of the wealthy and the powerful. Obama predicted as much in refusing to vote for his confirmation. Indeed, given the court's ideological divisions, Sturm thinks Sotomayor might be something of a tonic: "She's the kind of bridge builder who is crucial for the court."

Sturm also thinks that even the unmerited attacks on Sotomayor's intellect could have an upside. For in demonstrating that the person bears no relation to the caricature, Sotomayor just might help the nation acknowledge and confront the prejudice that still sometimes colors serious discourse. At this juncture, no one can precisely predict what Sotomayor's role will be on the court or on the national stage. But what is obvious, given her history, is that she will certainly surprise those who can see her only through the lens of their own preconceptions.