Why Sen. Graham Got It Wrong

Sen. Lindsey Graham’s brief on behalf of beleaguered white men was delivered with a honeyed tongue and a swift blow from the first day of the confirmation hearings of Judge Sonia Sotomayor. His argument is instilled in his central thesis: If a white man had made the same statements as those made by Judge Sotomayor in her speech in which she suggests that a “wise Latina” would decide some cases better than those who did not share her “rich experiences,” his “career would be over.” Sen. Graham marveled to Judge Sotomayor that she “can say those things and have a chance to get on the Supreme Court.”

The point was clear. White men could never get away with making the statements that a minority woman is allowed to make. It’s a surreal world in which white men are the aggrieved minority, and black women and Latinas wield unmerited power and enjoy endless advantage.

It’s a breathtaking piece of arrogance that enables Sen. Graham to forcefully press this argument. Of course, it’s the deliberate misunderstanding and de-contextualizing of Judge Sotomayor’s statement. Her “wise Latina” speech, read in its entirety, is about the importance of recognizing how a judge’s experiences and perspectives might influence their approach to legal decision-making. Rather than displaying arrogance and a belief that she is a better judge than a white man, Judge Sotomayor humbly and candidly pledges to “constant[ly] and continuous[ly] ... check my assumptions, presumptions and perspectives.”

But even if one adopts the distorted interpretation of her speech, Graham is just wrong. Making statements that espouse racism is not automatically a career-killing move for white men. Graham’s colleague, Sen. Jeff Sessions, is the perfect example. When he was nominated to serve as a federal district court judge, Sen. Sessions was alleged to have made several statements that would objectively be regarded as demonstrating racism. Witnesses alleged in 1986 that Sessions had expressed admiration for the KKK, that he referred to the NAACP as a Communist-influenced organization, and that he called a black male staffer “boy.” Sessions denied those allegations, but he lost his chance to be confirmed as a federal district court judge. But far from killing his career, Sessions’ alleged remarks catapulted him into political life and a seat in the U.S. Senate. He now serves as the ranking minority leader on the Senate Judiciary Committee—a position from which he can publicly denounce the first Latina Supreme Court nominee. Today, news reports about the allegations made against him in 1986 are hard to find.

When William Rehnquist faced the Senate Judiciary Committee in 1971, at his confirmation hearings to serve on the Supreme Court, he faced aggressive questioning by Sen. Edward Kennedy and other Democrats about Rehnquist’s public and forceful opposition to an ordinance desegregating public accommodations in Phoenix, Ariz., in 1964. In a letter to the editor of an Arizona paper, Rehnquist had opposed the law and questioned “whether the freedom of the property owner ought to be sacrificed in order to give these minorities a chance to have access to integrated eating places at all.” Rehnquist also faced questions about credible allegations that he had participated in organized activities by the Republican Party in Arizona to intimidate black voters at the polls in 1964. At his confirmation hearings, Rehnquist denied the voter intimidation charges and distanced himself from the views he had expressed in his letter to the editor. He was confirmed by a vote of 68-26. He was later elevated to chief justice of the United States in 1986 by a vote of 65-33.

Yes, former Sen. Trent Lott was compelled to relinquish his post as Senate majority leader after he waxed nostalgic for a world in which the 1948 segregationist presidential campaign of Strom Thurmond would have been victorious. But far from ending his career, Lott remained in the Senate and only resigned in 2007 to undertake a lucrative lobbying career.

It’s particularly revealing that Graham’s lament on the career-killing effect of racist statements by whites comes just as Audra Shay of Louisiana was elected last week to serve as chairperson of the Young Republican Federation, despite revelations that she endorsed racist comments about blacks on her Facebook page.

And there have been countless cases all over the country in which white men, alleged to have made racist comments in the workplace, have kept their jobs or even been promoted. Discrimination claims filed by black employees challenging those statements often fail because the black employee is unable to satisfy a judge that the offensive statements created a “hostile work environment,” as required by the law.

A greater irony, perhaps, is the fact that it was Judge Sotomayor who fought to save the career of an admitted white supremacist, when in Pappas v. Giuliani, she dissented from a 2006 decision in which the 2nd Circuit Court of Appeals upheld the firing of a New York City cop who had sent white supremacist material through the mail. The materials Thomas Pappas sent described the “Negro wolf … destroying American civilization with rape, robbery and murder,” and lamented “how the Jews control the TV networks.” The majority found that the “capacity of [Mr. Pappas’] statements to damage the effectiveness of the police department in the community is immense,” and affirmed the district court’s opinion upholding Pappas’ termination by the NYPD. Judge Sotomayor argued in her dissent that Pappas had a First Amendment right to engage in this odious speech because the speech “occurred away from the office … on the employee’s own time” and when there was “no evidence of workplace disruption.” She noted that Pappas was not a street cop, but a computer operator within the department. Pappas lost his job as a New York City police officer—but over the objection of Judge Sotomayor. There are no plans to call Pappas as a witness at the confirmation hearings.

It’s perfectly appropriate for Sen. Graham to question Judge Sotomayor about what she meant in her speeches when she seems to talk about the superior decision-making of a “wise Latina” judge. But in adopting a scolding tone and a sense of outraged unfairness, Graham denies the reality—evident even in the Senate Judiciary Committee’s chamber room—that second chances are often extended to white men who make racist statements. And in the case of Pappas, it was a wise Latina judge who, if she had her way, would have provided that second chance.

Sherrilyn A. Ifill is a regular contributor to The Root.