Questions of racism also framed past hearings

Supreme Court nominee Sonia Sotomayor talks with Senate Judiciary Committee members Sen. John Cornyn, and Sen. Lindsey Graham (AP Photo/Charles Dharapak)

On May 26, 2009, President Barack Obama nominated Judge Sonia Sotomayor of the Second Circuit Court of Appeals to be the nation's first Latina and only the third woman to sit on the United States Supreme Court.

Even before her nomination, currently going through the congressional hearing process, The New Republic's Jeffrey Rosen made the case that Sotomayor wasn't "smart enough" for the job. It didn't take long for other pundits to connect doubts about her intellectual bona fides to the role that affirmative action likely played in her admission to Princeton and, perhaps, Yale Law School. Shortly after her nomination, in response to a speech Sotomayor made in which she claimed "that a wise Latina woman" would "reach a better conclusion than a white male who hasn't lived that life," Rush Limbaugh and others called her a reverse-racist. These responses to Sotomayor's nomination, as well as the line of questioning which has been directed her way since the start of this week's congressional hearings, make it clear that race is decidedly on the agenda.

This peculiar salience of race should give us pause. Supreme Court nomination bids frame and are framed by the most heated issues of the day. Just four years ago, Senator Arlen Specter asked then-Judge John Roberts whether Roe v. Wade was "super-duper precedent." For decades, at least since Sandra Day O'Connor's hearings, the issue of abortion has dominated the public conversation about Supreme Court nominations. This hyper-importance of Roe, however, is itself an anomaly; for much of our history, race was the contested issue at center stage in Supreme Court nomination melodramas.

In his article "How the Conservatives Canonized Brown v. Board of Education," Professor Brad Snyder traces Brown and its central role to the hearings of numerous Supreme Court nominees during the 1950s and 1960s. Eisenhower nominee Potter Stewart was grilled for over two hours concerning the logic, validity, and constitutionality of Brown.

Consider the saga of William Rehnquist. Having learned from the two failed Nixon nominees, Rehnquist wholeheartedly endorsed the validity of Brown. Although some senators on the Judiciary Committee balked at Rehnquist's speckled civil rights record, he appeared to be on the path to easy confirmation. Until, that is, a somewhat embarrassing memo surfaced.

Rehnquist had been a law clerk for Justice Jackson on the Supreme Court during the term in which Brown was first argued. In this memo, the young law clerk argued, among other things, that "Plessy v. Ferguson," which upheld the doctrine of "separate but equal," "was right and should be re-affirmed." The memo caused obvious outrage.

In response, Rehnquist claimed that he wrote the memo at his boss's behest, and that the views contained in the memo were Justice Jackson's, not his own. In a further attempt to get his nomination back on the rails, Rehnquist reaffirmed Brown's moral and legal rightness. In the end, Rehnquist successfully used Brown as a shield: the Senate confirmed him, although he received more negative votes than any justice in nearly half a century.

The upshot of this historical detour is that candid discussion of race and racism isn't entirely alien to the Senate chambers. And race has been central to Judge Sotomayor's hearings thus far, not only because of the personal accusations mentioned above, but also because of her involvement in the recently decided Supreme Court case Ricci v. DeStefano.

The details of this case have been widely reported and discussed in the congressional hearings. In a 5-4 decision, the Supreme Court found for the white and Latino firefighters and reversed the decision of the lower court panel on which Judge Sotomayor sat. There is no doubt that conservative members of the Judiciary Committee will continue to confront Sotomayor with the Supreme Court's decision in Ricci and ask her why she found against the white and Latino firefighters. Other race-based issues, such as the constitutionality of the Voting Rights Act, the disparate-impact prong of Title VII, and affirmative action are also on the agenda.

Activists and the general public, of course, can't have much influence on the hearings themselves but they can use those hearings as an opportunity to have a constructive and inclusive conversation about race. They can talk about the importance of institutional diversity and having a Latina woman on the court, with a candid recognition of the difference Justices such as Thurgood Marshall, Sandra Day O'Connor and Ruth Bader Ginsburg have had on the law and the Court by bringing their unique life experience to bear.

They can talk about subterranean, structural racism, the way in which opportunity is racially distributed in our society, and the continuing importance of disparate-impact lawsuits under Title VII. And they can talk about Sotomayor's own life story as an example of the effectiveness of affirmative action policies.

Judge Sotomayor's nomination can be a catalyst for all of these conversations and more. To avoid them is to cede the argument to those who think that race shouldn't be part of our public discourse. In other words, it would once again be a missed opportunity to make the case for race-consciousness in law and in life.

Legal Intern Brookes Hammock also contributed to this article