Chief Justice John Roberts directly confronted Sotomayor in his own concurring opinion: “It is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect . . . that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”
But while Sotomayor’s overheated argument made the headlines, her most intriguing statement came in a footnote in which she noted:
Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone — for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students.
Her insistence that existing affirmative-action programs don’t result in the admission of unqualified students — and effectively amount to quotas — is at odds with the facts.
As I pointed out last month on NRO : “The median African-American student at law school has credentials lower than those of 99 percent of the Asian and white students — and underrepresented minorities admitted to law school based on a heavy preference are two to three times more likely to fail the bar exam.”