Sotomayor, Ricci, and Affirmative Action – Part II – Standing to Speak

As noted in Part I of this post, of all Judge Sonia Sotomayor's legal decisions, the Ricci case has garnered the lion's share of the media and academic attention.  Part I of this post considered the opportunities presented by a national discussion of the issues raised in Ricci.  This part, as promised, will analyze the language that has been used to discuss Judge Sotomayor’s role in the case and her other remarks on issues of race.

The word that has been tossed-about most often in the discussion of Judge Sotomayor's role is "racist" or "reverse racist."  There seem to be four bases for this allegation: First, there is her ruling in the Ricci case which disadvantaged the white firefighters.  Second, her strong idenitifcation as a Latina has led some to opine that she does not possess an "ability to rule fairly without undue influence from her own personal race, gender, or political preferences."  Third, she is a member of the Latino civil rights advocacy group, the "National Council of La Raza."  Fourth, the following comment - "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," has led some to remark that she is incapable of judging cases involving whites impartially.

The purpose of this post is not to debunk any of these claims.  That has been done quite well elsewhere.  For instance, Dean Kevin Johnson, Feminist Law Professors' Ann Bartow, and Professor Michael Dorf have all explained that when read in context the "wise Latina" quote is not so shocking.  SCOTUS Blog completed a two-part series examining each of Judge Sotomayor's opinions in cases involving race.  The conclusion? 

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.  Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

If those points have been debunked, what is this post about?  Well, Tom Goldstein of SCOTUS Blog began his study by stating, "It is remarkable how much ink has been spilled on Sonia Sotomayor’s ethnic background rather than her legal background."  For me, this is the intriguing question.  Upon hearing the "wise Latina" comment, many remarked, "Would a white male have been able to make the same remark?"  To me, the question in response is "Would a white male have been grilled as stringently on this issue?"  

In his 1992 book Faces at the Bottom of the Well, Professor Derrick Bell wrote about the "Rules of Racial Standing."  The "Rules" were a series of guidelines for African Americans in public life.  Rule number two reads as follows:

"[There is] a widespread assumption that blacks, unlike whites, cannot be objective on racial issues and will favor their own no matter what . . . Black judges hearing racial cases are eyed suspiciously and sometimes asked to recuse themselves in favor of a white judge."

Professor Bell's rules seem to be unusually prescient in this situation.  Given the tone and tenor of the discussion, it seems the allegations of racism were based on little more than the fact that she is both Latina and a woman.   For contrast, I reviewed the hearing transcripts for Justices Roberts and Alito (available here and here respectively).  While issues of race and affirmative action were mentioned, even a cursory review of the transcripts indicates that race was not a central issue of either of the hearings.  Neither man was pressed very hard to demonstrate that he could be fair to a multitude of people.  The media coverage of their confirmations certainly did not focus on those issues.  So, the question should not be whether the Goldstein report exhonerates Judge Sotoamayor.  The question should be why such a report had to come so early in the process, weeks before the confirmination hearings.

Why should we care about the public treatment of Judge Sotomayor on issues of race?  There are at least three reasons.  First, judicial intergrity is at stake.  If the allegation that Judge Sotomayor had disdain for white litigants were true, that would definately be cause for concern.  However, again, no support has been brought forth on this score other than her ethnicity.  This is unfortunate, as it implies that non-white jurists cannot be fair to white litigants. The necessary corrollary to that line of reasoning is that white judges can only be fair to whites.  Truly, is this the message we want to send - that justice depends upon the color of the judge rather than the content of the case file?  Chief Justice Earl Warren - a white man - sided with African Americans more often than not.  Convesely, the current Court's lone African American - Clarence Thomas - does very little to advance issues of race.  Justices Blackmun, Brennan, and Marshall - all men - helped to advance the rights of women.  Justice Brennan was Catholic, but supported abortion rights in Roe and Webster.  Surely, we trod a dangerous path when we believe we can predict a Justice's vote based on phenotype, religion, or other characteristics which have nothing to do with legal acumen.  We must view these jurists as individuals and let their records speak.  To do otherwise is an unfair attack on the character of a judge.

Second, there is the issue of institutional legitimacy.  While the Executive Branch can help enforce its rulings, the Court depends largely on its institutional legitimacy to convince the public of the rectitude of its decisions.   An attack on a nominee's legal positions is fair game - always.  But an attack based on assumptions regarding a nominee's race, gender, sexual orientation, religion, or nationality - matters that are not subject to change or debate -  should be beyond the pale.   When we make those assumptions we diminish the person, as stated.  But we as we diminish the individual, we also diminish the institution he serves by making it harder to trust the fairness of the institutional output.  In short, it would be unfair to assume, for instance, that a Court comprised of a Catholic majority will be unfair to Protestants, Jews, Muslims, or others.  If such unfounded allegations are leveled, the institution suffers.   

Finally, there is a larger issue of Constitutional law here.  Our president is African American.  Our newest Supreme Court nominee is Latina.  Thus, America is ushering in a new era of leadership.  As this happens at the federal, state, and local levels, will the presumption be that any programs enacted by racial minorities to benefit other racial minorities (and support of such prograns by minority judges) are immediately suspect?  In Croson, Justice O'Connor seemed to suggest as such when she noted that heightened scrutiny was necessary because the majority of the Richmond city council that enacted the plan was African American.  As we enter a new America where people of color occupy more authority positions, many current and former presumptions and assumptions will need to be challenged.  I'm not entirely certain how this will play out, but I do know that it would be unwise to assume at the outset that minorities are only motiviated by race and therefore :1) cannot be fair to those outside of their race; and 2) will favor "their own" to the exclusion of rationality.  To engage in these assumptions would surely validate Professor Bell's Rules. 

In closing, let us be careful of the words and tone we use to discuss nominees for the good of the nominees, the institution, and our nation.

NLS