Why Race Won't Go Away for Sotomayor

The vitriolic and unwarranted charges of racism lodged against Supreme Court nominee Judge Sonia Sotomayor this past week constitute a new low in confirmation character assassination.

But perhaps it shouldn’t have come as a surprise that race would take center stage in the weeks leading up to what will most assuredly be the late-summer confirmation of the first Latina Supreme Court justice.

Even before she was named, commentators (and not just those on the right) were trafficking in racial and gender stereotypes—speculating that the summa cum laude graduate of Princeton, Yale Law Review editor, prosecutor and partner in a commercial law firm and federal appellate court judge might lack sufficient intellectual heft to sit on the Supreme Court bench. Other reports peddled the story that the Puerto Rican divorcee has a “temper.”

By the end of last week, when Judge Sotomayor had been called a “Latina racist” by former House Speaker Newt Gingrich and a “bigot” by right-wing radio shock jock Rush Limbaugh, things had gotten very ugly, very fast. Backtracks began Friday, when Texas Sen. John Cornyn (R-Texas) condemned the attacks on Judge Sotomayor. On Sunday morning news shows, Sens. Jeff Sessions (R-Ala.) and Lindsey Graham (R-S.C.)—both of the Senate Judiciary Committee—were assuring listeners that they don’t think that Judge Sotomayor is a racist.

It probably helps that Republican Party leaders and Sen. John Cornyn, who hail from states with a significant Latino population, are smart enough to know that they cannot afford to alienate the Latino electorate by joining unelected pundits in disrespecting the first Latina Supreme Court nominee.

Nevertheless, we should expect that race will continue to be an underlying theme of this confirmation process.

The fact that Judge Sotomayor sat on the panel of the 2nd Circuit Court of Appeals, judges who ruled against a white firefighter in the Ricci v. DeStefano affirmative action case currently in front of the Supreme Court, ensures that questions about race will be key in the upcoming hearings.

Affirmative action is the gift that keeps on giving for a Republican Party perpetually engaged in feeding its base. The sympathetic white, dyslexic firefighter Frank Ricci, who passed the New Haven firefighters’ promotions exam only to have the city refuse to certify the results of the exam, has become a hero to the rallying point of opposition to Judge Sotomayor’s confirmation. The case is more complicated than the bare fact of the city throwing out an exam that black applicants didn’t pass, but in all of the predictably heated exchanges about so-called “reverse discrimination,” those details won’t matter.

But even without Judge Sotomayor’s Puerto Rican heritage and her involvement in the Ricci case, the truth is that race is now an essential feature of the contemporary confirmation process. In fact, the modern confirmation hearing is a product of racial conflict. It wasn’t until 1955, a year after Brown v. Board of Education was decided, that a Supreme Court justice, John Marshall Harlan II, was subjected to the full monty of hostile questioning by the Senate Judiciary Committee. Before that, there had been one or two occasions when justices came before the committee to answer specific charges. But after Brown, the confirmation hearings became an important forum for southern senators to express their resistance to school integration by questioning nominees about Brown, school integration and the limits of the Constitution.

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.