Confession of a lawmaking judge.(THE LAST WORD)(appointment of Sonia Sotomayor as Supreme Court Justice)

Soon America will move, in all likelihood, from a Supreme Court with a Justice David Souter as a member to a court with a Justice Sonia Sotomayor. Neither the alphabetical order of the justices nor the constitutional disorder will change. Little will change but gender and ethnicity, which the major news media would have us believe are the most important considerations.

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The story line is so appealing: the first African-American president appoints the first Latin American to the highest court in the land. Some have already disparaged it as an affirmative-action pick. The charge is as unfair now as it was 18 years ago, when President George H.W. Bush nominated Clarence Thomas. Sotomayor has ample intellect and experience to get where she is. She likely did not have to play either the gender or ethnic card.

But she may have been fortunate that she did not have those cards played against her, as did a group of New Haven firefighters, including one Hispanic firefighter, who were denied promotions because no African-Americans qualified for promotions when they took the same test. No black promotions meant no promotions. Period. End of story. The firefighters appealed, but to no avail. Their plea was dismissed when it reached the Second U.S. Circuit Court of Appeals in New York, where Judge Sotomayor sat as part of a three-judge panel. It was dismissed, as the world knows by now, without a written opinion. No need to explain to the firefighters or their attorneys, or indeed the rest of us peasants, why not promoting the firefighters who passed the test and not promoting those who failed the test equaled equal justice under the law. They--and we--probably wouldn't understand.

But Sotomayor does understand, or at least hopes she understands. As she said in a 2001 speech: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." And, let's face it, the firefighters case does have some semblance of logic. Those who passed the test and those who did not were "not promoted" equally. It brings to mind the late Sen. Roman Hruska's observation of a few decades ago that the mediocre need some representation on the Supreme Court, since there are so many of us--of them. Whatever.

But never mind the affirmative action and forget for a moment Sotomayor's foolish remark that a Latin-American woman will make better decisions than a white man. What is most revealing is something the nominee said that will no doubt be explained away as a joke or a ...