It's a little strange to see folk on the other side of the Senate aisle who were prepared to go down the line for Harriet Miers nitpicking about and against Sonia Sotomayor. Measured across the sweep of Supreme Court justices over the course of American history, she is not at all an embarrassment. More than that, Sotomayor has shown an intellectual flexibility that has scared many true-believers in the liberal catechism. But this flexibility shows more thoughtfulness about legal issues than the predictability of some of her colleagues on the appellate bench. Take the Ninth Circuit, for example. Alright, she is not as subtle as Steven Breyer. But who is?

I guess she is not especially predictable on all abortion issues or on business regulation. That's OK with me, many of these matters requiring a gritty sense of factuality more than abstract principles. So, while Jeff Rosen was rather diffident in his first writing in this space about the judge, I am enthusiastic. Yes, once the president actually nominated her, Jeff came aboard.

I am completely put off by those critics, in the Senate and outside, who complain that her life's road has been paved by preference. I know something about this sort of preference. When I started my teaching career as a graduate student at Harvard in 1961 (and for several years thereafter), most classrooms and many residential dining halls were unpunctuated by black faces or Latino faces or, for that matter, Asian faces.

Oh, yes, there were some Latinos or Asians, but virtually all from among their elites. I myself had as a student the grandson of the dictator of Brazil and a prince of Thailand. Come to think of it, there were a handful of blacks, as well, all of whom were white shoe.

This started to change a bit in the late sixties and, more so, in the early seventies. Yet they were a rarity. Of course, later on, Harvard and other colleges and universities, elite and not so elite, welcomed "difference" into their halls and were panicked when they didn't have it. (Right now, there's an all-fired-up controversy at the University of Texas at Austin, reported in The New York Times, about how legislatively mandated standards of admission to this campus at UT have been admitting the top 10% of each high school graduating class and, thus, keeping out better students lower down in ranking but from superior and larger schools in the suburbs. The question is: is there too much "difference" when excellent students are kept out in favor of middling students? I am eager to see how Sotomayor will handle this case when it winds its way up to the Supremes.)

Back to preferential treatment. Of course, I paid special attention to those who might have felt a bit out-of-it at Harvard, and precisely out-of-it because of their race or ethnicity. Many of these youngsters, for that is what they are at 18, needed more help in writing papers than white freshmen and sophomores coming from the top of their class at near-white high schools and, at the time, mostly almost all-white prep schools. Some of these students were a bit aggressive in compensating for what was, for almost all of them, an entirely new situation. Some were actually docile. If I as their professor could ease their landing, I would have been remiss in not doing so.

Some of this work on my part went easily. Some of it was hard, even painful. Sometimes we fought, as one of my now-best friends will remember--fought ideologically in a way that marred our relationship for a time. Sometimes I would go to bat, more vigorously than usual, for these young men and women applying for a job or for grad school at places where neither Afro-Americans nor Hispanic Americans had been especially welcome before. 

This is, I suppose, the kind of preferential treatment Judge Sotomayor received. I expect that millions of young people like her, and some not as successful as she has been, received this kind of care. That's why America is well on its way to being a multi-racial, multi-ethnic Republic "with liberty and justice for all."