"American law does not permit the use of foreign law or international law to interpret the Constitution," Judge Sonia Sotomayor declared at one point in her confirmation testimony last month.

"Foreign law cannot be used as a holding or precedent or to bind or to influence the outcome of a legal conclusion interpreting the Constitution," she asserted at another point.

"I will not use foreign law to interpret the Constitution," she said at a third point.

But there was much less than meets to eye to Sotomayor's apparently categorical assertions. They seemed to say that she would never engage in what has become the five more liberal justices' practice of relying in part on foreign and international law to interpret the Constitution. But it's clear when one reads all the way through her various, somewhat muddled statements on the subject that she would do just that.

The key to the apparent contradiction is Sotomayor's redefinition of the word "use." It calls to mind Bill Clinton's classic word game: "It depends on what the meaning of the word 'is' is."

Sotomayor's statements that she would not "use" foreign law in constitutional interpretation turn out to mean only that she would not use it "in the sense of relying on decisions of foreign courts as binding or controlling precedent" (emphasis added), as she specified in her post-testimony, off-camera answers to senators' written questions.

That's a little bit like a baseball pitcher vowing not to "use" knuckleballs to win a game, when all he means is that he won't rely exclusively on knuckleballs, but rather will throw some fastballs and curveballs too.

Continue reading Sotomayor, Foreign Law And The Constitution

"Detailed discussions of 'disparate impact'... are not big ratings-grabbers," Howard Kurtz of the Washington Post observed during the Senate Judiciary hearings on Sonia Sotomayor.

Indeed not. That's why most of the media understandably took a minimalist approach to explaining the issue at the core of Judge Sotomayor's most controversial decision, in the New Haven firefighter case, and the Supreme Court's 5-4 ruling on June 29 reversing it.
Disparate-impact lawsuits -- typically brought by blacks and/or Hispanics who challenge as discriminatory employers' use of objective tests on which those minorities do poorly -- are unavoidably complex.

But perhaps the educated public might find the complexities worth understanding if the media explained how such lawsuits can -- depending on how the extraordinarily vague rules codified by Congress in 1991 are interpreted -- either open opportunities to qualified minorities, or foster discrimination against better-qualified whites, or some of both.

I explored some of this terrain in my May 31 column. But it's worth revisiting because the firefighter decision, Ricci v. DeStefano, both clarified the law and pointed to the need for further clarification.

The majority made it somewhat easier for employers to defend against disparate-impact suits -- and harder to justify discriminating against whites based on fear of such suits.

But that will change, the four liberal dissenters made clear, if they can get one more vote to impose broader disparate-impact liability -- which, as the majority explained, would be (and sometimes has been) an engine of quotas and discrimination.

This is not to deny that disparate-impact lawsuits can play a valuable role in protecting minorities against tests and other selection criteria that disproportionately exclude minorities for lacking skills of little relevance to the positions they seek. One example is using IQ scores to screen applicants for jobs that don't involve difficult cognitive tasks. But the tests in use by most employers now are carefully designed and reasonably related to the requirements of the job.

The firefighter case was not itself a disparate-impact suit. But it dramatized how even the mere threat of such suits can lead to overt racial discrimination against whites, especially by employers who -- as in New Haven -- may already have political motives to discriminate.

Continue reading The Importance Of 'Disparate Impact'

Princeton University was guilty of "an institutional pattern of discrimination" against Chicanos and Puerto Ricans, then-sophomore Sonia Sotomayor wrote in a letter published in the May 10, 1974 edition of the student newspaper, The Daily Princetonian.

Explaining this charge and the rest of a complaint filed by university students with the Health, Education and Welfare Department, Sotomayor's letter continued:

The facts imply and reflect the total absence of regard, concern and respect for an entire people and their culture. In effect, they reflect an attempt -- a successful attempt so far -- to relegate an important cultural sector of the population to oblivion.

As proof of these charges, Sotomayor said:

The facts of the complaint are these: 1) There is not one Puerto Rican or Chicano administrator or faculty member in the university; 2) There are two million Puerto Ricans in the United States and two and a half million more on the island itself. Yet there were only 66 Puerto Rican applicants this year, and only 31 Puerto Rican students on campus. While there are 12 million Chicanos in the United States, there were only 111 Chicano applicants and 27 students on campus this year; 3) Not one permanent course in this university now deals in any notable detail with the Puerto Rican or Chicano cultures.

Sotomayor's parents had moved from Puerto Rico to New York in search of better opportunities. Those opportunities ultimately came to include her admission to the university that she so sharply attacked. At Princeton, she was, among other things, co-chair of a group called Accion Puertorriquena.

In October 1974, Princeton allowed Sotomayor and two other students to initiate a seminar, for full credit and with the university's blessings, on the Puerto Rican experience and its relation to contemporary America.

Some may see the fact that Princeton awarded Sotomayor a summa cum laude degree and the prestigious Pyne Prize when she graduated in 1976 as evidence of her unparalleled brilliance in overcoming a "total absence of regard, concern, and respect" for people such as her.

And some may see Sotomayor's letter as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton's Board of Trustees.

Read the complete text of Sotomayor's 1974 letter and a 1974 story about the complaint in which she's quoted.

The Princetonian posts two other letters signed by Sotomayor while a student:

- 'The making of a dean'
- 'Rights of all'