State-Sponsored Discrimination and the Supreme Court Nominee

Republicans won’t stop the president from appointing Sonia Sotomayor from being the next Supreme Court nominee.

The media is already warning Republicans not to anger Hispanic voters by opposing her nomination.

And there is some political risk in opposing Ms. Sotomayor. Republicans need to be cognizant of that risk.

But that doesn’t mean that they should just roll over and play dead.

While conservative interest groups will attempt to paint her as a liberal on socially explosive issues like abortion and same-sex marriage (and she probably is), that won’t disqualify her from the high court.

But disqualification shouldn’t be the goal here.

The goal should be clarification.

And for me, one issue needs the most clarification.

Where does Ms. Sotomayor stand on state-sponsored discrimination?

Does the federal government have not only the right, but also the duty, to discriminate against certain kinds of people so that other kinds of people can get ahead?

This issue has special resonance because of a case that is on its way to the Supreme Court, the case of the New Haven, Conn., firefighter who worked especially hard to win a promotion but lost that chance when the state scrapped the test he passed after the results came in because not enough diversity was achieved.

As one liberal blogger put it, “The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained ‘no reference whatsoever to the constitutional issues at the core of this case.’ (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)”

That last part is crucial. A case that went to her Appeals Court (and now is going to the Supreme Court) is a big deal, but nobody knows where she stands on it, other than the fact that she didn’t support the firefighters.

Why is this a big deal? Well, because state-sponsored discrimination should be a bad thing. In the supposedly post-racial world in which we all live, putting somebody on the highest court of the land who believes that state-sponsored discrimination can be a good thing is politically notable. Getting her position on this issue clarified would be politically useful.

From public comments made by Ms. Sotomayor, she believes that she is a superior judge to white males because her life experience gives her more perspective from which to make better judgments.

That is a debatable proposition.

But to many Americans, the thought of the government acting as a diversity policeman who can scrap any fair contest because the end result isn’t acceptable to a liberal judge is a little bit scary.

This is a good debate to have before the president’s nominee gets a final vote sometime this summer.

Many Republicans will make a federal case over the word “empathy,” and they will try to paint Ms. Sotomayor as a judicial activist.

I think it would be far more useful to find out where she really stands on state-sponsored discrimination. And I would think there are more than a few firemen and cops out there who would like to know, too.



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