Antonin Scalia, strangely, is rarely recognized for his passion, though he certainly evinces it in dissents.
Eli Lake, of course, offered the definitive guide for wielding the catch-all term in online conversations. Lake’s usage more accurately reflects my feelings about Sotomayor’s dissent:
Retweet the hater’s tweet, appending the phrase “I love your passion,” or some variation. This may seem counterintuitive. After all, the hater has just insulted you and you respond with a compliment. But “I love your passion” is no compliment at all. It’s what you hear from someone who is about to disappoint you. It’s what you hear when you don’t get the job.
For example, if you have just proposed that the Bill and Melinda Gates Foundation fund your museum tour and folk concert to raise awareness about the negative portrayal of Eskimos in the Canadian media, you will likely find the phrase baked into a polite rejection. “It is so refreshing to hear someone talk with your energy about the plight of Greenland’s Yupik population. We all love your passion. But right now the foundation is focused on more tangible projects that are closer to home.”
The editors at National Review took the justice to task for her results-oriented decision. The whole thing is well worth reading:
In a perfectly Orwellian dissenting opinion, which she read dramatically from the bench, Justice Sotomayor argued that the decision of the people of Michigan to end racial discrimination is itself an instance of racial discrimination and that the only way to mitigate such racial discrimination is through the mandatory maintenance of racial discrimination. In this opinion she was joined by Justice Ginsburg, with Justice Kagan recusing herself from the case. Justice Sotomayor argued that Michigan’s Proposal 2, which mandates race-neutral state policies, is the sort of legislation used to “oppress minority groups.” By outlawing racial discrimination, she argued, “a majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.”
Justice Sotomayor is here arguing in effect that if a constitutional referendum doesn’t go the NAACP’s way, then its effects are invalid. This is not an exaggeration: Justice Soyomayor argues explicitly that Michigan’s voters would have been within their rights to, for example, lobby university authorities to adopt race-neutral admissions standards but that by adopting a constitutional amendment insisting on race neutrality, thereby transferring the decision from the education bureaucrats to the people themselves and their constitution, they “changed the rules in the middle of the game.” Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described “wise Latina” on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law. Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order.
This is hardly the first time the media has fawned over Sotomayor nor will it be the last. A flashback to her first, big NYT profile upon being named to the Court: “To Get to Sotomayor’s Core, Start in New York: Milestones in Work and Life, Set to a City’s Rhythms”
I wrote about it at the time, comparing it to the treatment other justices received in the same pages:
Such endeavors are naturally fluffy and positive, but you learn almost nothing about her judicial or political philosophies. By contrast, almost the entire first page of John Roberts’ NYT profile, while nominally positive, is devoted to ferreting out just how politically conservative he actually is. The writer does not offer lyrical illustrations of Roberts’ fair mind and goodness in action, but rather testimonies from friends that sound as if they came in response to the question, “So, all his friends are white Republicans, right?”
Samuel Alito’s profile is similarly devoted to assurances from liberal friends that he’s not insane (whew!), and discussion of whether he is now or ever has been a part of the Reagan Revolution. I guess Roberts and Alito can’t expect the same treatment as Sotomayor. Did they set their “milestones in work and life to the rhythms of the city?” I think not.
What’s most aggravating about the profile, however, is the implicit and common liberal conceit that compelling narratives, racial harmony, and helping others are solely the province of liberals, and particularly liberals in the Age of Obama.
If one has the patience to dig through 40 pages of NYT search results about Justice Clarence Thomas’ “anger” and Anita Hill’s accusations against him, one can find two or three sentences about a man who had no indoor plumbing for much of his childhood, lived in a neighborhood called “Blood Bucket” in the Jim Crow South, and was raised by an illiterate grandfather to work hard and overcome segregation to attend Yale Law and become a Supreme Court justice. Not bad, as narratives go. “Only in America” stories of overcoming obstacles to reach improbable heights did not begin with Barack Obama.
The custom of judges advising and mentoring clerks did not begin with Sonia Sotomayor. Christmas parties featuring both lawyers and janitors do not only happen in the nation’s enlightened urban centers.