Sotomayor Heads to the Senate

Jill Filipovic

The justices who evaluated Ricci are not "raceless," yet no one suggests their whiteness influences their views on racial inequality. Sotomayor, though, is branded a "racist" because she voted to uphold a lower court decision based on well-established legal theory.

Sonia Sotomayor’s confirmation hearings begin today, and Republican senators reportedly "intend to focus on what they see as Judge Sotomayor’s
willingness to bring a personal agenda to the court, especially when it
comes to issues of race."  At issue is Sotomayor’s work
as a board member with the Puerto Rican Legal Defense Fund, and her
decision in Ricci v. DeStefano.  Sotomayor sat on
the board of PRLDEF, and was not a litigator for them; somehow, though,
she’s being held responsible for their litigation strategy — which
isn’t even that radical to begin with.  In Ricci,
Sotomayor’s Second Circuit Court of Appeals panel affirmed a District
Court’s ruling that a Connecticut fire department did not violate the
law when it decided to scrap exam results and promoted no one in an
effort to make promotions more racially balanced.

I don’t doubt that Republicans will harp on the race issue during
the confirmation hearings — as much as they love to accuse liberals of
"playing the race card," they are the true masters of assigning an
insidious agenda to anyone who isn’t white and dares discuss race (or,
heaven forbid, evaluates laws against discrimination).  Sotomayor’s
color apparently makes her "biased" towards parties who share similar,
less-than-privileged backgrounds, while the white skin worn by most of
the sitting Supreme Court justices is assumed to play no role, and
certainly not to bias them towards, say, white firefighters who feel
like they were victims of affirmative action. 

In a sane political system, Sotomayor’s opinion in Ricci and even the Supreme Court’s departure from
it would be a non-issue.  Affirming a lower court’s ruling is about the
most un-activist thing a judge can do, and the district court decision
in Ricci was affirmed unanimously by the Second
Circuit panel.  Sotomayor’s panel initially didn’t even issue an
opinion; when one finally was written on request of another judge, it
was eight sentences long.  Her role in Ricci was
hardly the Angry Latina Woman of Limbaugh lore.  The United States Supreme Court overturned the Second
Circuit’s decision, but by a narrow margin — and Justice Ruth Bader
Ginsberg felt so strongly about the Court’s decision that she read her
dissent from the bench. 

In other words, it was a tough call — one that divided the highest court in the country.

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is certainly good reason for the divisiveness. The Ricci decision struck a blow to disparate impact
theory, making it easier to maintain laws and employment practices that
are racially unbiased on their face but that in practice result in
discriminatory outcomes.  Sotomayor’s position — not that the fire
department had to scrap the test results, but that
they were legally permitted to — was hardly revolutionary or
far-left.  One more left-leaning moderate judge on the Supreme Court
and that position would have been affirmed.

The Supreme Court justices who evaluated Ricci
are not raceless; most of them are white.  And yet no one suggests that
perhaps their whiteness influences their views on racial inequality, or
that they aren’t unbiased simply by virtue of belonging to the American
cultural majority.  Sotomayor, though, is branded a "racist" because
she voted to uphold a lower court decision based on well-established
legal theory.

Luckily, it’s only a few conservative blowhards who are pulling the
racist card.  Republicans will undoubtedly bring up Sotomayor’s views
on affirmative action and race, but no one expects dramatics at the
confirmation hearings.   Despite right-wing whining about her
"temperament" and the predictable problems with her not being a white
male, it would be a surprise if the hearings did not go smoothly.  The
American Bar Association gave her their highest
, and she is by all reputable accounts a
highly-qualified, intelligent and moderate jurist.  And with a ranking
Republican member of the Senate Judiciary Committee having his own
race issues, one would hope that the GOP would tread lightly with the racism accusations. 

Of course, a lot can happen in a few days, and with all the focus
on Ricci and race, there’s been surprisingly
little effort made to push Sotomayor to publicly state her position on Roe and reproductive rights. There has been even
less talk about Sotomayor’s views on gay rights, an underdeveloped
legal area that is almost certain to make its way up to the Court in
the next decade.  And from the left, scant attention has been paid to
Sotomayor’s extreme deference to law enforcement agents, even when they
encroach on citizens’ privacy rights.  So who knows — maybe if the GOP
lets go of its race fixation, a bomb will drop and we’ll all find out
that Sotomayor would vote to extend the rights guaranteed by Roe, or that she thinks there’s no legitimate
reason why a marriage between Adam and Eve is more valid than one
between Adam and Steve (hey, here’s hoping).

But with an experienced, pedigreed and thoroughly moderate judge
like Sotomayor, and with Democrats outnumbering Republicans on the
Judiciary Committee, I wouldn’t hold my breath. More likely than not,
these will be the most boring hearings yet.  And that is probably best
for all involved — especially since it will open the door for Obama to
nominate a more progressive legal theorist in the future.  Those will
be some fireworks worth watching.

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