Empathy for whom?

Christopher Caldwell:

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A few of Sotomayor's decisions may ring a bell. It was she who ruled in 1999 that a law-school graduate with a learning disability was entitled to extra time to take a bar exam. More recently, she forbade the Environmental Protection Agency to use a cost-benefit analysis in antipollution enforcement (her ruling was later overturned). But the real fight over her confirmation will focus on her role in a case about tests for promotion within the New Haven, Conn., fire department. Although the tests were designed to be race-neutral, the pass rate for blacks was half that for whites. So New Haven threw out the test results. Several white firefighters who scored high enough for promotion sued the city. One of the plaintiffs was dyslexic and had hired tutors to help him. Sotomayor was on the three-judge panel that okayed New Haven's decision to nullify the tests. The panel did so in a one-paragraph blow-off that ignored a host of pressing constitutional issues and was striking for its lack of empathy, compassion and all those noble qualities that are supposed to come with growing up in the South Bronx. The case is now before the U.S. Supreme Court, which could well overturn the decision in the next few weeks.

Whether or not you like racial preferences, they involve a way of looking at the law that is sophisticated rather than commonsensical. If the New Haven opinion is fair, it is the kind of fairness you learn at Yale Law School, not the kind you learn in the South Bronx. Sotomayor may be a child of the barrio, culturally speaking, but the judicial philosophy she represents comes from the mandarin, not the proletarian, wing of the Democratic Party.

Affirmative action has been a revolution in American rights and in our ideas of citizenship. To judge from almost all polls and referendums over the past few decades, it is reliably unpopular. Judges prop it up. Since the election of the first black President, it has been a shoe waiting to drop. The rationale it rests on — that minorities are cut off from fair access to positions of influence in society — has been undermined, to put it mildly. Elevating a hard-line defender of affirmative action is thus a provocation in a way that it would not have been in years past.

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The Ricci case reinforces the perspective about Sotomayor that she thinks a "wise" Latina is smarter than a white guy. The left seems somewhat conflicted on this statement. Some are lashing out at Limbaugh and Newt Gingrich and calling them racist for challenging Sotomayor's clearly racist and sexist statement. At the same time others are counseling a walk back of the statement and an apology because they recongnize how offensive the staement is to most Americans.

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