The Sotomayor nomination and the Ricci case bring to mind an incident I mentioned in a prior post and which I'll reprise more fully here.
One of the criteria of evaluating faculty is service, in particular, university service. The senior female faculty member in our MIS group (no formal department) decided that she couldn't serve an assigned term on the MBA Program Admissions Committee, and the Business School Administration asked me to fill out her term over the academic year (1987-1988, I believe); I accepted. The committee consisted of 6 members, three senior faculty (all male, including the committee chair) and three junior/untenured faculty (two women and myself).
The School had an appeal process to consider applicants whom had not met two principal criteria considered for automatic acceptance: a minimum upper-division GPA and a minimum GMAT test score. We had established some informal guidelines on how far below the minimums we would consider plus we would often factor in relevant extraneous factors in the applicant's background. For example, one case I remember was a University of British Columbia PhD, whom had turned in an abysmal performance on his GMAT. The University of British Columbia has a global reputation for excellence in teaching and research. It was obvious to me from context what had happened; this guy probably was indignant that the School required him to go through the formality of taking the GMAT, and he blew it off in a passive-aggressive response. All he succeeded in doing was cutting off his nose to spite his face. I managed to push him through, but there was a lot of sympathy for the position of forcing him to take the exam over again.
In a plurality of cases, the votes were unanimous, but there were split decisions, and I was the lone dissenter (i.e., against admission) in a few cases. But in my last meeting at the end of the academic year, we faced what appeared to be an idiosyncratic case: someone who scored far below even our informal pullback criterion levels (I believe her upper-division GPA was below 2.8 on a 4.0 scale, i.e., below a B average, and she scored below average on her GMAT. I remember being confused as to why we were reviewing this candidate; we had routinely rejected people whom had done better than her on one or both criteria. We deadlocked at 3-3, with the committee chairman and the two female faculty members voting to admit her. What I remember vividly is the fact the two females remained tightlipped during the entire proceeding, refusing the comment of the blatant violation of equal protection, i.e., double standard. It was clear something was going on that I and the others didn't know about.
Next, the committee chair said, "Look, guys. The Dean has already awarded her a fellowship. The Dean needs us to admit her. It would look bad if we didn't." (I always thought fellowships were awarded AFTER admission, not the other way around.) We refused on principle; it was a matter of conscience. It wasn't fair to the students we had turned down with better criteria scores.
Finally, the committee chair pulled a blatant power move. He noted that my term on the committee ended that month, and the Dean would appoint a crony to replace me whom would back the admission. So she was going to be admitted no matter what. All we were doing was delaying the admission, a fact that he characterized as being "unfair" to the student.
I then did something that made all 5 of the committee members angry--I changed my vote to "present". My two fellow dissenters accused me of being hypocritical in letting her through, but the other side knew exactly what I was doing and wasn't happy. By changing my vote to "present", I allowed the motion to carry, but without the moral mandate of a majority decision. If the vote was deferred until the next month and carried 4-2, nobody would have known there was anything unusual about this decision.
This was not like Obama's voting "present" in the Illinois Senate, i.e., to avoid politically difficult votes. I will say to anyone that I opposed the admission and some 20 years later, I stand behind that conclusion. My decision was an artifact of a committee without a tie-breaking vote, my expiring committee term, and a corrupt business school leadership.
What Judge Sotomayor did in the Ricci case (the perfunctory judgment burying the substantive equal protection issues without comment) is very similar to what happened in that committee meeting. It was a stealth form of liberal activism which attempted to short-shrift legitimate constitutional issues.
