I’m Old Enough to Remember When George Will Was Respectable

by Brien Jackson

It seems that, in addition to having a bit of a problem with honesty, George Will is also something of a racist, as evidenced by his latest column denouncing the Sotomayor nomination as “Identity Justice.” Publius already addressed this, but he was far too nice about it for my liking.

First of all, let’s establish one thing; anyone who tries to argue that Sotomayor is not qualified for the court should not be taken seriously, and is unquestionably attempting to construct the affirmative action appointment talking point. Anyone doing that is either, a) a racist, b) attempting to cultivate racial resentment in others. That’s because there’s no contemporary standard by which Sotomayor is not qualified from the court. She has an undergraduate degree from Princeton and a law degree from Yale, the exact same educational resume of one Samuel Alito. She first became a judge when George H.W. Bush appointed her to the District Court in 1991, then was promoted to the 2nd Circuit i 1998, meaning she’s been a federal judge for 18 years. Chief Justice John Roberts, by contrast, had all of 2 years of judicial experience when George W. Bush nominated him to replace William Rehnquist, who had no prior judicial experience whatsoever before joining the court in 1971. The Justice Sotomayor would replace, David Souter, spent less than 5 months on the 1st Circuit before being elevated to SCOTUS in 1991, although he did have 7 years eperience on the New Hampshire state Supreme Court.

What’s even more telling than the denigration of what, were Sotomayor a white male, would undoubtedly be considered an impeccable set of credentials is that, in all of 18 years, apparently the only case of Sotomayor’s that the right-wing can find to disagree with concerns affirmative action, and is about as textbook of an example of judicial restraint as you could find. But here’s how Will describes it:

Before Sotomayor’s confirmation hearings begin, the Supreme Court probably will overturn a ruling she supported on the 2nd Circuit — the propriety of New Haven, Conn., canceling fire department promotions because there were no African Americans (although there was a Hispanic) among the 18 firemen the selection test made eligible for promotion. A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court’s dismissal of the firemen’s complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved[…]

Perhaps Sotomayor subscribes to the Thurgood Marshall doctrine: “You do what you think is right and let the law catch up” (quoted in the Stanford Law Review, summer 1992). Does she think the figure of Justice should lift her blindfold, an emblem of impartiality, and be partial to certain categories of persons? 

 Except, as one should probably expect from Will, this isn’t an accurate representation of the Ricci case, or the 2nd Circuit’s ruling whatsoever. In Ricci, the city of New Haven decided to throw out promotion tests for the fire department after a disproportionate number of minorities failed to pass on the basis of counsel from the city attorney, who warned that using the tests could leave the city open to a lawsuit under Title VII of the Civil Rights Act. After the city did so, a dyslexic white male sued, claiming this was a violation of his Civil Rights. The 2nd Circuit’s ruling essentially affirmed two things; first, that discarding the first test and requiring all participants to take a new test was not a violation of anyone’s civil rights. Secondly, they found that the city was perfectly within their authority to attempt to comply with existing federal law, because the city attorney was absolutely right; the city almost certainly would have been sued, successfully, had they used the tests. The outcome certainly may not be optimal from a social policy standpoint, but if you feel that way then your problem is with the law, not tht court that applied the law as it is written. This is nice, however, because it blatantly affirms the obvious; conservatives don’t want “judicial restraint” or “strict construction,” they want very, very activist judges. They just want them to reach outcomes that they prefer. And they have no problem distorting facts either.

And The Washington Post will happily give them the media space to do so.

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