Senator Dianne Feinstein finally said what I've been waiting for someone to say about the whole "reverse racism" charge now being levied by Republicans against President Barack Obama's first Supreme Court pick, Judge Sonia Sotomayor. From this weekend's Face The Nation, Feinstein summed the entire controversy up in her first response to moderator Bob Schieffer:
Well, there's one word, Bob, in the statement. It's the word "better." That a Latina woman who has gone through these experiences, that her views would be better. And without that one word, it's a perfectly fine statement. And I understand what she meant by it.
So you could say the use of that word was inartful. But I think you have to look at an individual in their total context. This is, in fact, an amazing woman. She is, in fact, the American dream.
Sotomayor's full quote, utterly removed from the context of her full speech, was: "I would hope that a Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasnâ€™t lived that life." I won't get into putting her entire speech in context, because many others have already adequately done so. Instead, I'd like to focus on the point Feinstein was making.
OK, one tiny bit of context is necessary. From the same paragraph as the quote Republicans are focusing on, Sotomayor leads in with the original quote she is riffing off of (the paragraph can be found on page five of her speech), which she attributes to both Justice O'Connor and (possibly) Justice Coyle: "a wise old man and wise old woman will reach the same conclusion in deciding cases."
Feinstein is right. If Sotomayor had paraphrased a little more closely, she would have kept the final clause intact (the "same conclusion" instead of "a better conclusion"). She didn't, which is where the controversy arises. But even for what right-wingers are calling "reverse racism," this is pretty tame stuff. The preceding clause to the offending "better" is also important -- "more often than not." This means, taken at her literal wording, Sotomayor believes a Latina would come to a better conclusion than a white man something more than 50 percent of the time. As racial superiority rhetoric goes, this is not exactly bomb-throwing language.
But Feinstein correctly focuses in on the one word which is deemed not acceptible to the public at large. This isn't racism so much as egalitarianism. Americans feel resentful against anyone -- of any race or class or status -- who espouses that they are superior to others by dint of their situation. This abhorrence of what is properly called "elitism" runs deep in the American psyche and always has.
But who knew white males had such thin skins? Up until about a half-century ago (and much later, in some areas) -- for centuries before, I might add -- it was socially quite acceptible to espouse that white males were superior to every other demographic in this country. This country was founded not upon rights for all, but instead upon rights not just for white males but white property-owning males. Poor white males couldn't even vote in a lot of places long after the Constitution's ink was dry. Everybody else had to fight to slowly get the rights (like voting or serving on a jury) that property-owning males have enjoyed since the beginning.
You just can't escape from the fact that of the 110 Supreme Court justices over our country's history, 106 of them have been white males. Two women, and two African-Americans, have also served on our highest court. Until roughly thirty years ago, a woman had never sat on that bench.
So it's not like white males should really feel all that threatened, even though technically they are a minority themselves (white women are the largest demographic in this country).
But the question itself should be addressed: will Sotomayor be some sort of "reverse racist" judge -- an "activist" judge to boot, no doubt -- or will she apply the law fairly no matter who comes before her in court?
The second arrow in the quiver of the Republicans attacking Sotomayor is a case currently before the Supreme Court, where her appellate decision may be overturned -- the Ricci case (Ricci v. DeStefano). This case, which pitted firefighters against the city of New Haven, Connecticut, was decided unanimously by the Second Circuit in a very brief and unsigned opinion which upheld the lower court's ruling on the case.
To use this case against Sotomayor in trying to paint her as some sort of "activist judge" (a label I called an oxymoron last week) is such a profound example of doublethink that I'm surprised Republicans haven't had an epidemic of whiplash from snapping their heads around in the opposite direction so fast.
Again, without getting into the facts of the case (which many others have done a much better job than I ever could), Republicans are actually arguing here that Sotomayor should have been an activist judge in this case. The question before her, as a member of an appellate circuit court, was whether the law had been applied correctly in the lower court's ruling. What was the law? Did the ruling follow the law? Is the law constitutional? Sotomayor, in this case, decided that whatever her own personal empathetic feelings were, that the law was clear -- what New Haven had done was legal, in other words -- and that the ruling did indeed follow the law as written. Republicans are insisting that she should have come to some other conclusion, but that would have been their exact definition of "judicial activism" -- a judge making law from the bench, in other words. And we all know how much Republicans are against legislating from the bench, right? Except in this case, it appears, when that is exactly what they are saying Sotomayor (and the other judges on the circuit court -- this was a unanimous ruling, remember, not Sotomayor's alone) should have done.
Intellectually, the Republicans' argument -- taken in the context of just about everything else they've ever said on the subject of judicial activism -- is laughable in its inconsistency.
Which brings us to a third subject which may get a bit more play in the days ahead. Glenn Greenwald over at Salon has the story (which he credits a commenter on Andrew Sullivan's blog for pointing out).
This is an interesting case, which (had Sotomayor actually been a white male) may have been brought up against her (or him, in this example) in the context of judicial attitudes towards racism. The case is known as Pappas v. Giuliani and involved a white policeman who was apparently fed up with getting donation pleas in the mail from various organizations. So he -- completely anonymously, and not identifying himself as a New York City police officer -- stuffed their return envelopes with blatant and quite ugly racist pamphlets, which he then mailed back to the organization "in protest" (as he later averred in his court case). After a lengthy investigation involving coded return envelopes being sent out in subsequent mailings, Pappas was identified as the source of the racist propaganda (which was quite ugly, as racial statements tend to be). The city fired him (which is why Rudy Giuliani is the first named defendant). Pappas sued. He lost when his case was dismissed. The court found that the NYPD were within their rights to weed out racists within their ranks, even if such racist speech was anonymous, did not identify the city or the police department, and was done on his own time.
Sotomayor's circuit court handled Pappas' appeal. In a split decision, two out of three of the judges who heard the appeal ruled with the lower court. But Sotomayor dissented, and wrote the dissent herself. She held that Pappas' First Amendment rights allowed him to be a racist on his own time, especially since he was doing so anonymously and not identifying himself as a police officer. You can read her whole dissent from the trial transcript, if interested.
Meaning Sotomayor stood up for the rights of a white racist cop over the city's right to fire him for being a white racist cop. This doesn't exactly fit with the caricature Republicans are drawing of her right now. And, as I said (in an ironic twist), if Sotomayor had been a white male, this case would now be getting a lot more attention, to say the least.
So when fairly examining the charge from the right that Sotomayor is some species of Latina-power "racist" who is on a judicial activist mission to favor minorities over white folks from the bench, it's fairly easy to see that the charge just isn't going to stick. They are reduced to making their argument over one word from one sentence from one speech given years ago. That word -- "better" -- was indeed inartfully chosen. But if she truly believed what her critics are accusing her of believing, some other evidence of her beliefs would have surfaced by now. Thousands of people, both professional and amateur, are combing her voluminous writings and decisions for political reasons right now. And all they've found is one word from one speech.
Sotomayor's critics then try to pirouette into painting her as some sort of "judicial activist" favoring minorities by using a case where she showed judicial restraint, and ignored whatever empathetic urges she may have had to legislate from the bench. That this argument makes absolutely no sense when measured against virtually every other thing Republicans have ever said about judges simply has not dawned on the mainstream media quite yet.
And in what could be called her most racially explosive case so far unearthed, Sotomayor did indeed buck the majority on her court -- in favor of a white supremacist racist cop. She's hardly a Latina Malcolm X, in other words.
What these cases prove to me, so far (there's always the possibility of "the other shoe dropping" of course) is that if anything, Sotomayor scrupulously avoids letting her heritage have any sort of bias in her decision-making as a judge, no matter how strong the provocation, or how strong the urge to legislate from the bench.
In other words, if she wasn't a Latina and a woman, she would be exactly the kind of judge Republicans have always said they support. Which begs the question, what is it exactly about Sotomayor which enrages her critics? The only difference between her and their professed ideal judge seems to be her ethnic background and her gender. I leave it for everyone to make their own conclusions as to how racism (and sexism) is truly a part of this debate.
-- Chris Weigant