Why Race Won’t Go Away for Sotomayor

Since Brown v. Board of Education, race has become a key issue in almost all Supreme Court confirmation battles.

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The confirmation hearings for Thurgood Marshall to the Supreme Court in 1967 were perhaps the most openly hostile and provocative, with southern Sens. Strom Thurmond and James Eastland attempting to paint Marshall, then-solicitor general of the United States, as a communist, a liar and as intellectually unprepared to sit on the court. It’s difficult to read the transcripts without cringing at the obvious racism and disrespect meted out by members of the Judiciary Committee.

When Justices Hugo Black and John Marshall Harlan II resigned within two weeks of each other, it provided President Richard Nixon with the opportunity to select two Supreme Court justices in 1971. The president—an opponent of busing for integration—made it clear to the aides forming his court shortlist, “I’m not going to put anybody in that thing that doesn’t share my views on busing, period.” After weighing the merits of several potential nominees over the course of a month, Nixon eventually nominated Lewis Powell and William Rehnquist.

Four years earlier, Nixon had been compelled to withdraw the name of his second nominee to fill the seat vacated by Justice Abe Fortas, after it was learned that nominee G. Harrold Carswell, a Floridian, had been an open and unwavering supporter of what Carswell, in his own words, called “the principles of white supremacy.”

Over the past 35 years, confirmation hearing questions about what southern (and some northern) senators called “forced busing” or about affirmative action have nearly equaled those related to abortion in the most controversial nomination battles, except that of Judge Robert Bork in 1987. We forget that the NAACP opposed the confirmation of David Souter in 1990, citing a speech in which Souter had referred to affirmative action as “affirmative discrimination.” And of course, we don’t need to resurrect the sordid details of the Clarence Thomas confirmation hearings to bring to mind the prominence of race. It may well be the only confirmation hearing in which lynching was mentioned—perversely, I might add. Although given the nomination of at least one former Klansman to the bench—Justice Hugo Black in 1937—it probably should have come up sooner.

Both Chief Justice John Roberts and Justice Samuel Alito had records that raised concerns for civil rights groups. Despite his very safe and reassuring answers at his confirmation hearing, self-described judicial umpire John Roberts has proven remarkably adept at consistently calling only strikes on batters representing civil rights claimants since ascending to the bench. Justice Alito, who sought to explain his membership in a questionable Princeton alumni anti-affirmative action organization, has been a similarly consistent opponent to affirmative action in his decision making in civil rights cases.

No doubt affirmative action will be front and center this time around given Judge Sotomayor’s participation in the Ricci case and the likelihood that the Supreme Court may reverse Judge Sotomayor’s opinion. But even without Ricci, race would have been there, hovering over the proceedings in every veiled question about “judicial activism,” about whether Judge Sotomayor will adhere to the rule of law, about whether she lacks judicial temperament.

Anyone who was hoping that last November’s election had launched America into a period of post-racialism had better wait until this fall, when Judge Sotomayor’s confirmation hearings are over.

Sherrilyn A. Ifill is a professor of law at the University of Maryland School of Law and a civil rights lawyer.