The big political news of the past week was President Obama’s selection of Sonia Sotomayor, currently a judge on the U.S. Court of Appeals for the Second Circuit, as his nominee to replace the retiring David Souter on the Supreme Court. I had planned on doing a post outlining the nominee’s views of the law and discussing some of the issues at stake in the conflict between liberal and conservative readings of the Constitution. I’ll try to do that post at some point before the start of Sotomayor’s confirmation hearings, but for now it’ll unfortunately have to wait.
Sotomayor’s résumé is typical of recent Court appointments. After attending Princeton University and Yale Law School, she worked for a time in the Manhattan district attorney’s office and in private legal practice before being nominated to Manhattan’s U.S. District Court by President George H.W. Bush in 1991 and elevated to the Court of Appeals by President Clinton in 1998. Sotomayor has also worked as an adjunct professor of law at New York University and as a lecturer at Columbia. Her résumé is strikingly similar to that of Samuel Alito, the most recent justice to be confirmed, another Princeton/Yale Law grad who served as an appellate judge and an adjunct law professor in the years prior to joining the Supreme Court. Sotomayor would be the first Latina and only the third woman ever to serve on the Court.
Given these realities, as well as the fact that Sotomayor is nearly certain to be confirmed by the Democrat-controlled Senate, I expected that Republicans would tread lightly on her biography and qualifications and instead try to paint her as some kind of far-out liberal. But I was mostly mistaken. Instead, a number of prominent conservatives have launched a full-scale assault on the nominee on the basis of her race and gender. She’s been labeled a “racist” by both Newt Gingrich and Rush Limbaugh, on the basis of a tendentious reading of a single out-of-context quote from a 2001 speech. Former Colorado congressman and GOP presidential hopeful Tom Tancredo has attacked her membership in the National Council of La Raza, a Latino civil rights organization that Tancredo hysterically (in both senses of the word) labeled “a Latino KKK” (a description that would no doubt come as a surprise to John McCain, who gave the keynote address at the group’s annual meeting in 2004). A blogger on National Review Online has even attacked the pronunciation of her name, calling the stress on the final syllable “unnatural in English” and implying that Sotomayor has been less than properly assimilated into American culture. Others, including Karl Rove on Fox News, have questioned her intellectual ability, despite her Ivy League education.
Perhaps even more disturbing are the quixotic efforts of The Weekly Standard’s Michael Goldfarb, among others, to hunt down examples of “preferential treatment” Sotomayor supposedly received going back to her school days—as if anyone, including the seven white men currently on the Court, achieves such a high professional position in life without someone helping them out along the way. (Apparently, the definition of “preferential treatment” now encompasses behavior that some of us would call racial discrimination. Puerto Rican girls from the projects have so many unfair advantages in our society.) Even the pro-Sotomayor New York Times has now validated this storyline with a piece about how the Sotomayor nomination represents the return of “identity politics” to the forefront of American political discourse.
In fairness, I should also mention that the reaction from Republican members of the Senate Judiciary Committee, as well as that of several non-insane conservatives in the media, has been more temperate, with senators John Cornyn (R-TX) and Orrin Hatch (R-UT) going so far as to denounce the comments of Gingrich and Limbaugh. But nevertheless, with the possible exception of Tancredo, the figures and publications referenced above are all solidly within the mainstream of the Republican Party. They can only be dismissed as “far right” or “fringe” elements if one is willing to acknowledge that such voices now make up a significant proportion of the party, a point I’d certainly be willing to stipulate.
It’s worth noting here that in the Supreme Court, we’re talking about an institution that’s historically been so hostile to white men that a mere 106 of the 110 justices in its history have fallen in that demographic, including seven of the current nine. Given this history and the presence of several more-or-less equally qualified candidates for the Court, it seems entirely reasonable to me that Obama might have seen Sotomayor’s race and modest socioeconomic background as assets to her candidacy. I recognize that some will disagree with this notion, and that’s fine. What’s not fine are the obvious double standards at work here: Why are Sotomayor’s intellectual and professional credentials being picked apart, while Alito’s very similar résumé was accepted at face value? Why is Obama’s selection of Sotomayor seen as some sort of “affirmative action” pick designed to appease a specific political constituency, while Ronald Reagan’s choice of Antonin Scalia, another highly qualified jurist who happened to be the first Italian American justice in Court history, was not? Why are Sotomayor's references to her ethnic background considered evidence of "reverse racism," while Alito's similar comments on the influence of his own Italian-immigrant ancestors on his judicial philosophy were not?
The only logical conclusion to be drawn is that, in the eyes of many of Sotomayor’s critics, her race and gender are, ipso facto, proof that she must be an unqualified hack whose nomination was solely the product of “identity politics.” This is racist nonsense and needs to be called out for what it is. Most liberals in politics and the media are so easily cowed by conservative whining about “political correctness” that they’ve become unwilling to speak out against blatant instances of racial bias. I guess racism—at least racism against nonwhites—is just another partisan political issue now. I can’t remember the last time a national conservative political figure spoke out against an instance of racism, whereas even the slightest hint of “political correctness” is enough to set off howls of outrage across the conservative blogosphere. As Matthew Yglesias has repeatedly noted over the past few months, most prominent conservatives in this country behave as if they genuinely believe that antiracist rhetoric is a bigger social problem than actual racism.
Just to be clear: I’m not referring here to any of the legitimate questions that have been raised about Sotomayor’s judicial philosophy and views on specific issues, including affirmative action. Such topics can and should be discussed at her confirmation hearings. Both of George W. Bush’s successful nominees, Alito and Chief Justice John Roberts, were challenged on legal and constitutional issues by Senate Democrats and both ultimately received many no votes. But I don’t remember any ad hominem attacks on either man that even approached the vitriol directed against Sotomayor over the past week.
Clearly, the country is changing—a mere look at the faces of Sotomayor and Michelle Obama gracing the past two covers of Time magazine is enough to confirm that. But make no mistake about it: even in "post-racial" America, a significant segment of the political and media elite remains heavily invested in protecting the prerogatives of white male privilege. Normally, these prerogatives are effectively masked by supposed concerns with other issues, like “qualifications” or who the “best person” for the job is, but once in a while the mask slips. We’re witnessing one of those moments right now.