Disturbing as I find it to defend Pat Buchanan in any dispute about race, one aspect of the argument Rachel Maddow makes in this much-blogged-about exchange seems rather odd to me. She challenges Buchanan to explain why 108 of 110 Supreme Court justices have been white, arguing that this suggests minority candidates have been unfairly denied consideration. In a way, this weirdly understates the severity of institutional racism in the United States, since it implies that there were all these qualified minority jurists who were getting short shrift from the Oval Office. If only! Buchanan’s answer, though noxiously put, actually seems closer to correct: This was an overwhelmingly white country until the 70s, and endemic discrimination meant that the non-white tenth of the population was not, as a rule, welcome in elite law schools—or, for that matter, minimally adequate elementary schools. If, in the 20th century, there had been plenty of qualified minority legal thinkers, because we were actually affording minority populations some kind of decent educational opportunities, but these people were later slighted by prejudiced presidents, that would be an awesomely happier story of American race relations—get some less bigoted presidents and the problem is solved!
The actually-racist part of Buchanan’s argument is the presumption that Sotomayor must be unqualified since she admits to being an “affirmative action baby.” Frankly, she would seem to be damn near the Platonic ideal of how affirmative action is supposed to work, and probably not the sort of example opponents of such policies want to hold up as paradigmatic. That is, she was a woman of clear ability and intelligence who, as a result of her disadvantaged background, was given a pass on subpar standardized test scores in college admissions—and sure enough, rose to the challenge spectacularly when given an opportunity to study an environment that was both highly demanding and intellectually nourishing. For Buchanan, it seems that either that early boost poisons the spring of her achievements at the source, or he’s assuming without evidence that she didn’t genuinely earn her later accomplishments by really flourishing once she’d arrived at Princeton.*
These two stories are actually complimentary. That is, academic affirmative action makes the most sense—bracketing for a moment the separate case grounded in the educational value of a diverse student body—if you think that one legacy of institutional racism in the United States is that minority populations have not been given the opportunity to excel, such that “neutral” measures like standardized tests will not reveal the true potential of minority applicants. But if you think that’s true—if you think that a long history of state-supported systemic racism might actually have some kind of lasting impact on the life prospects of disfavored populations, even after formal discrimination is ended—then you should not expect anything close to parity of qualifications as measured by neutral criteria.
All that said, I find truly bizarre the conflation of “affirmative action” in the academic and ordinary hiring contexts with Sotomayor’s putative status as an “affirmative action” pick. Again, while I think it’s fairly clear that she is an affirmative action pick in one sense, it’s pretty close to the ideal of how affirmative action is supposed to work, which is to say: From a pool of highly qualified candidates, you let ethnicity act as a tiebreaker. It seems self-evident to me that John Smith with Sonia Sotomayor’s resume would be a reasonable pick for the Supreme Court. I think it’s equally evident that, when it came time to choose from the highly elite people with the requisite experience and qualifications, it mattered that she was a Latina. For an institution like the Supreme Court, I have no serious problem with that being a consideration, provided we’re talking about the choice between candidates who meet the prior threshold of excellence you want any justice to surpass. It’s not like there’s some Supreme Court SAT that lets you objectively rank jurists, such that Sotomayor is “unfairly” promoted ahead of “better” candidates. Once you’re down to that elite pool, the decision amounts to a president’s highly subjective assessment of the specific character, experience, and philosophy of individual candidates, bearing in mind the composition of the rest of the court. And when you’re carrying out that level of individualized analysis, for a job that includes interpreting the meaning of “equal protection” or “hostile work environment” for a diverse population, it’s hardly mysterious why membership in a disadvantaged group might seem relevant—it’s not independent from some external, independent criterion of “bestness.” The plaintiffs in Ricci, even if you think the case was wrongly decided, at least had a colorable claim to be entitled to consideration for promotion on the basis of the facially neutral selection procedure that New Haven had established. Seats on the Supreme Court, at the risk of stating the obvious, don’t work like that. So in that context, I’m not sure the claim that Sotomayor is an “affirmative action pick” really has any sting to it.
* This requires explaining away her Pyne Prize—which Buchanan doesn’t bother with—and her summa, which he does, with a bit of handwaving about how “everyone” gets honors at elite universities. As of 2001, after decades of grade inflation, it appears that 44 percent of Princeton students graduated with some sort of honors (cum laude, magna, or summa). On any kind of ordinary distribution of those honors, that might mean, at most, the top 5–10 percent earning a summa. The irony here is that Buchanan goes on and on about how he doesn’t assume racism just because success in some field or another isn’t perfectly evenly distributed. But he does go into wild contortions to attribute Sotomayor’s success to racial preferences.