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Yes, It's All About Race
As conservatives call Sonia Sotomayor an “activist” judge today, you should remember one thing, Matthew Yglesias writes. Conservatives love activist judges. They just prefer when they advance the interests of white people.
Plus: The complete Daily Beast coverage of the nomination hearings.
Conservative responses to Judge Sonia Sotomayor's nomination to fill a vacancy on the Supreme Court have, naturally enough, involved invocations of the dread specter of "judicial activism," the allegedly horrifying practice through which liberal judges go fishing through the language of the Constitution to find reasons to strike down democratically enacted legislation. The right has also made a great deal of hay out of Sonia Sotomayor's decision in the case of Ricci v. DeStefano. The decision to highlight this case is not surprising, as it puts Sotomayor on the side of unpopular affirmative-action programs and with a set of facts that makes the liberal side look especially bad. To make a long story short, Frank Ricci was a New Haven firefighter with a sympathetic life story who was in line for a promotion. Then the test results got thrown out on the grounds that no minority firefighters did well enough to qualify for a promotion.
The conservative movement in the United States has long stood for the proposition that white people are being treated unfairly.
As a test case for opponents of affirmative action, this is a pretty sweet deal. It works especially well because though a promotion in the New Haven Fire Department was highly desirable to Ricci and his colleagues, it's not exactly a pass into the American elite. Firefighting is a quintessential working class line of enterprise, so it's hard to see Ricci and other white firefighters as representing some immensely privileged overclass that ought to pay the penalty for America's past racial sins. It's a good case for the right, in other words, except for one thing: their passionate embrace of Ricci's cause on the one hand completely undermines their argument about judicial activism on the other.
After all, Sonia Sotomayor was not a member of the New Haven City Council. She wasn't the mayor. She doesn't sit in the Connecticut state legislature. She has nothing to do with setting fire-department policies. She was an appeals court judge who happened to sit on the circuit that covers Connecticut. What she was being asked to do was toss out a decision reached by the appropriate elected officials in the name of a more abstract concept of justice. And not just any concept, but specifically a concept that was at odds with the way courts had traditionally construed the relevant portions of the Civil Rights Act. She declined to do so, and rightly so; it's not the role of appeals court judges to throw out precedents.
The U.S. Supreme Court, by a 5-4 margin, chose to do otherwise, deeming New Haven's actions an intolerable act of racial discrimination. And there should be little surprise that they did. The conservative movement in the United States has long stood for the proposition that white people are being treated unfairly. Sen. Barry Goldwater opposed the Civil Rights Act and carried the Deep South. Ronald Reagan made a name for himself opposing fair-housing laws. The George W. Bush administration dedicated the time of the staff of the Justice Department's Civil Rights Division to attacking college-affirmative-action policies. Justices Kennedy, Roberts, Alito, Thomas, and Scalia overruled Sotomayor's decision in Ricci. And earlier Tuesday, Sen. Jeff Sessions, himself rejected for a judicial post in the 1980s on the grounds that he's a racist, was berating Sotomayor for her alleged belief that Hispanic judges can use life experience to reach superior decisions to white ones.
Conservative commentators like George Will like to portray their outrage over the Ricci case as a principled stance in favor of racial blindness, writing of "the predictable price of failing to simply insist that government cannot take cognizance of race." But looking at the record quickly reveals that Will, like most conservatives, rarely if ever bemoans instances of racial discrimination against nonwhites. They oppose racial classifications for the specific reason that they fear such classifications are being used to disadvantage white people, and seek to advance this pro-white agenda through, among other things, activist judging.
But race is hardly the only principle on which conservative jurists deploy constitutional reasoning to overturn democratic majorities. In last year's District of Columbia v. Heller, a conservative majority overruled Washington, D.C.'s democratically enacted restrictions on handgun possession. Earlier in 1995's U.S. v. Lopez, the court overturned aspects of congress' Gun Free Schools Act. In the Morrison case, portions of the Violence Against Women Act were struck down. In Eastern Enterprises v. Apfel, the court struck down the Coal Industry Retiree Health Benefit Act on the grounds that Congress' efforts to ensure secure retirement for former coal industry employees violated the fifth amendment rights of coal companies.
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Jacob Bernstein is a senior reporter at The Daily Beast. Previously, he was a features writer at WWD and W Magazine. He has also written for New York magazine, Paper, and The Huffington Post.
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Jeff Madrick is a contributor to the New York Review of Books and a former economics columnist for the New York Times. He is editor of Challenge Magazine, visiting professor of humanities at Cooper Union, and senior fellow at the New School's Schwartz Center for Economic Policy Analysis. He is the author of Taking America, The End of Affluence (Random House) and The Case for Big Government.
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Matthew Yglesias is a Fellow at the Center for American Progress Action Fund. He is the author of Heads in the Sand: How the Republicans Screw Up Foreign Policy and Foreign Policy Screws Up the Democrats.
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Matthew Yglesias is a Fellow at the Center for American Progress Action Fund. He is the author of Heads in the Sand: How the Republicans Screw Up Foreign Policy and Foreign Policy Screws Up the Democrats.
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Matthew Yglesias is a Fellow at the Center for American Progress Action Fund. He is the author of Heads in the Sand: How the Republicans Screw Up Foreign Policy and Foreign Policy Screws Up the Democrats.
Does anyone really expect Republicans to remember anything they learned in Constitutional Law 101?
Great article ... it is about race ... just think what would happen to the anti-abortion groups if only women of color were having abortions ...
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Notice that Sotomayor has not said that she's biased towards any race, in fact she's worked hard at her hearings to make that clear.
What she values is variety of experience. A poor Puerto Rican girl growing up in the Bronx will have a VERY different view of the world then a wealthy white boy growing up in an affluent Texas suburb will.
Imagine they both have brilliant legal minds. But one of them has seen injustice up close. One of them is told, verbally and non-verbally, that she's not supposed to want what she wants. A better life isn't for her.
No one tells a little white boy that he can't be a lawyer, or a scientist, or a banker, or a supreme court justice because he's white. And a boy. Heavens, the mere THOUGHT that someone possibly COULD crush that little white boy's tender dreams is what's been the driving force behind the dismantling of Affirmative Action. Don't worry little white boy. You can be anything you dream of being.
And you won't have to fight no colored people to become it.
Assuming that because Sotomayor's statements about making BETTER decisions based on her race mean that she will be BIAS toward her own race is honestly, pretty insulting to someone whose whole job is to be as fair as possible. There is simply no evidence to support your statement that she is racially biased to her own race.
I think you completely missed one of the main points of this article. Namely, paragraph 5 where the author clearly answers your question.
It's not about racial blindness. It's about how it's applied. Overturning democratically enacted legislation is, by definition, "activist" judging. Upholding the legislation is NOT being an activist. And if conservative white men don't like the outcome because it negatively affects their race, they are not actually being as racially neutral as they would like to believe.
and i'm pretty sure that was the point of the article.
I'm wondering why it seems racial discrimination is treated differently than religious discrimination or that based on sexual orientation. Is it because of the religious and sexual proclivities of certain liberal-aligned ethnic groups? As a liberal, but with libertarian leanings, this bothers me.
Most people do not understand the job of a Supreme court judge. They are appointed with an agreement to follow orders. Before an important vote is cast they must call their benefactors. The choice of Sotomayor will not be reflected in her vote, only of the bosses that appointed her.
Great point, melpol! Individual justices are beholden to the administration that appointed them; it's true I tells ya!
Ike was clearly pulling the strings with Brennan and Warren.
And what better example than the man whom is currently being replaced! Souter used to call GHW Bush before he voted... mm hmm!
I even heard from our magical pixie friends that, should Souter author an opinion, he would first send a draft George I for approval on the verbage.
Mm hmmm.
"Yes, It's All About Race"
"Conservatives love activist judges. They just prefer when they advance the interests of white people."
Wow ! Quite the broad brush generalization.
Why not take it a step further and call
all white conservatives racists,
the way far right lunatics refer to all
liberals as radicals.
The world would be a better place if all the extremists, both
on the far left, and far right eloped to a deserted island.
You're all the same, no objectivity.
The columnist is right. It's all about race.
How could any white person possibly approve of Sotomayor.
Must stop the Boricua.
Why reward the white and latino Connecticut firefighters because their scores were higher than the black candidate.
This might come as a shock,
but many Latinos consider themselves conservatives,
pro choice, small government, low taxes, marriage
between a man and a woman only, and yes, some are for
protecting the border.
As we know, anyone who believes in protecting our
border is nothing more than a racist, a Xenophobe.
How could anyone want to actually
hold up the laws of this country.
That's so outrageous.
Your blend of aphorisms and sarcasm is interesting.
Does it make sense.
Do you have a coherent and/or cogent point.
Do you hate question marks or just refuse to use them when you engage in annoying rhetorical questions.
Will I ever know.
Do I care.
Do you have a question mark key on your keyboard. (sic)
Race matters. Even saying race doesn't matter is a racially charged statement. For the first few hundred years of American history, an aggressively hostile, entirely Caucasian legal system stunted the progress of minorities in this country for the benefit of not only them but their progeny. This is crucial to remember - poverty and disenfranchisement are as inherited as wealth and affluence. Saying we should all now get over race and become one America is like a rapist proposing marriage to his victim's offspring. The oppressor cannot mandate the forgiveness of his victims.
I love you.
Me too.
Best post on this entire effin' website.
How come all the diversity is ethnic and racial and gender? Used to be the justices on the supreme court came from divergent life experience backgrounds, elected officials and prominent non judges. Now they're all Ivy Leaguers who came up through the federal court system. What Price "Diversity" Now? George Patton
This makes no sense.
You failed the internet.
BOO!
Which diverse bqackgrounds and non-judges are you referring to? Name at least two.
Eykis121: It took me less that 30 seconds to track down a list of the 40 Supreme Court justices that were never judges. My favorite: Earl Warren. Others include William Rehnquist, Lewis Powell, Abe Fortas, Byron White, Arthur Goldberg, and William O. Douglas.
Happy now?
Since Roe vs. Wade in the 70s Supreme Court nominations have only been about one thing--overturning Roe vs. Wade. Conservatives are going to nit pick over any issue they can find in an attempt to discredit her. If she seemed to lean pro-abortion nothing else would matter.
The reverse is true for liberals.
I agree with this.
Although I'm pretty sure most leading candidates for the Supreme Court at this point -- conservative or liberal -- are loathe to overturn Roe.
@winkingchef:
I'm wondering why it seems racial discrimination is treated differently than religious discrimination or that based on sexual orientation. Is it because of the religious and sexual proclivities of certain liberal-aligned ethnic groups? As a liberal, but with libertarian leanings, this bothers me.
I'm not a legal scholar, but my understanding is that this question can't be at all satisfactorily answered without looking at it historically rather than through the lens of the current alignment of coalition members in politics in the year 2009. Racial discrimination has a particularly strong history in American law, from slavery through Jim Crow. Race has just been more politically salient in American history, and while it's not acceptable in any significant quarter these days to be explicitly racist (it's still acceptable, however, to be anti-Mormon or anti-atheist, for example, and certainly to be anti-gay), racism is more politically deep-seated than religious discrimination or homophobia. So the depth of the wound of racial discrimination that has been with the country since before its founding combines with a public commitment against racial discrimination in a way to make racial discrimination treated more seriously than religious or sexuality discrimination.
Wow, what a terrible, terrible article. The bias isn't even remotely hidden. As has been already pointed out, you're painting with an awfully broad brush, Yglesias, all the while completely misunderstanding what an activist judge is.
Let me define it for you: an activist judge is one that places their own opinion above the law, ruling based on their own political leanings as opposed to the letter of the Constitution. Granted, there are different theories that govern constitutional law, and activist judges typically subscribe to a "living document" viewpoint, while conservatives do not.
Accordingly, your argument falls apart. Conservatives, at least in word, support a judge that will uphold the constitution. Sometimes this means breaking with the electorate, some times this means supporting it. What they fear from an activist is that they will strike down the law because they disagree with it. It's a legitimate concern, even though conservative judges often end up being activist, themselves.
Secondly, you're making the assumption that all conservatives are rich, white folk, something that is obviously not the case. Granted, white people make up a large portion of the Republican party, but they are by no means the only people represented and the vast majority of them are quite poor.
While you're entitled to your own opinions, presenting a flawed argument is a discredit to yourself. I'm sure you're a smart guy, maybe give us something truthful instead of willfully and shamelessly biased.
Bias? It's an opinion piece, silly.
Where does it say in the Constitution that Florida could not hold a recount in the 2000 presidential election?
Man, white conservatives are in a no-win with this author.
From his examples I can see that the conservatives hate everyone but white men, and liberals love everyone (except white men?).
By the way, why was it racist to allow gun ownership in DC? Doesnt that mean minorities can own guns, too? What am I missing on that one?
When you look at the track record of white conservatives (slavery, rebellion in the Civil War, the KKK, lynch parties, etc.), perhaps you can see why this author (and others like me) have a bit of trouble with them.
Not all conservatives are like this, of course. But there are still lots around that would love to go back to the "good old days".
Why should white people be disadvantaged? Why is the argument Will makes that disadvantaging white people is morally reprehensible wrong? Children born today are born almost exclusively to parents that, like Obama, were born after the civil rights struggles of the 1950s and 60s. Most new couples in their 20s barely remember a time when black performers weren't at the pinnacle of pop culture cool be it Michael Jackson, Gangsta rap or Denzel Washington and Morgan Freeman. To younger people it seems kind of ridiculous that for the relatively small racial slights remaining we're denied slots at schools or jobs (slots that are VERY hard to get regardless of race) to make up for things our parents, parents (often long dead) might have done.
If anything it is more disadvantageous to be gay or atheist then black or brown these days. I can name dozens of black and brown political successes (Obama being the most obvious) but how many open atheists do you know of in congress? How about gay members not named Barney Frank? Atheists make up more of the population then either hispanics or blacks, but a lower population of public office holders, so where is our preferential admission? Remember when the mere rumor that Bill Bradley might not be full on religious was enough to torpedo him in 2000? I sure do.
There are, of course, other groups that have difficulties in their lives. Those with bipolar disorder, the dyslexic, midgets, giants, amputees, stupid people and more are all almost certainly more disadvantaged in a day to day capacity then those with a dark skin tone, where's their bailout in admissions and job testing? The main point here is if everyone who has any difficulty gets a handicap A) how do we determine which advantages are worse and B) how do we determine what counts as a handicap? Seems better to just not handicap anyone and let the chips fall where they may, fairly.
Noone spending years upon years fighting fires has had an easy cushy job they should be punished for I assure you.
Why should anyone be disadvantaged? Or do you just really think that white folks are smarter than minorities?
If so, then there's no sense in reasoning.
If not, then one should agree that there must be something inherently wrong with the test.
By the same logic the court used (tests are tests) the reverse should also be true. They must believe that it's an acceptable test even if ALL whites scored LOWER than their minority counterparts on the New Haven test. And we all know how that would turn out... This entire SCOTUS decision wreaks of "identity politics."
Also, a couple other things that I think are important in this situation. One, would it surprise you to know that the plaintiff, Mr Ricci, actually sued the Fire Department of New Haven for discrimination because he claimed that they didn't hire him due to his dyslexia? This guy apparently loves the 14th Amendment when it works for him, but not when it works for others. Second, Ricci brought 4 different discrimination lawsuits against Fire Departments he worked for during the next 10 years. Is this guy a serial victim or what?He's a joke. And your reference to "other groups that have difficulties in their lives" makes this point exactly. Is this really who you want to defend? One who used his dyslexia to get his job when he didn't get hired?
One other thing that's important, the New Haven Fire Department, had a history of discrimination in promoting minority firefighters up until the late 90's. This isn't some arcane ancient history... THIS HAPPENED LESS THAN 15 YEARS AGO. And you're right, we shouldn't handicap anyone, but blacks and minorities were handicapped in this country for hundreds of years and still are today. And your whole notion that blacks are OK because of a few dozen "Ganster Rappers" and Movie Stars would be laughable if I didn't think you really meant it.
Why should the black and Hispanic fire fighters be disadvantaged so white people can get jobs? Do you think that their jobs are more cushy than those of whites?
I don't understand why the author kept referrencing that conservative justices would routinely overturn the will of elected officials. Regardless of what elected officials desire, the laws of any locality must be constitutional. The author lost me early with his non-sensical argument.
Thank you for decoding this strange ritual. "Activist" is only one of the codes in play in discussion of the Supreme Court.
The most absurd in my eyes are the discussions around 'original intent' that treat the language of the Constitution as a kind of quasi-religious revelation subject only to a fundamentalist interpretation.
There is certainly a pragmatist argument for stare decisis and the enlightened design of separation of powers and the Bill of Rights in the Constitution, etc. But to elevate the document to a 'revealed text' seems blasphemous as well as a means to preserving injustice rather than increasing justice. After all, the Consitution's 'original intent' was to count black people as 3/5 of a person.
It's actually about principles, but why bother with the argument with hopeless tiresome ideologues like you.
Yglesias, I find your articles void of any real facts, insight or meaning and contain a constant, nauseating stream of political spin. You are as bad as those you rail against.
splinter: You've obviously been spoiled by the "No Spin Zone" of Bill O'Reilly.
O'Reilly spins in exactly the opposite direction, equally fast. Dragging Fox News into this is a blatant deflection tactic. "We can do it because they do it" is a bullsh*t argument. Alan, grow some testis and demand more honesty from your own side.
Thanks for commenting on a theme that has grown to a large level of importance without really having a meaning. The idea that "judicial activism" is bad is silly; if the judiciary weren't meant to be active at appropriate times, there'd be no reason to have a judiciary.
I'm not a fan of the polemic, Scalia-esque tone of the article, but then again, I didn't write it, and it's your decision how to get the point across.
I do think it's somewhat racist to essentially argue for the disadvantaging of whites, regardless of the view one might have on whether the colorblind theory is tenable.
But more importantly, I think you made a more obvious mistake in giving in to the desire to at least partially paint conservatives as tools of big business, in including corporations among the interests conservative jurists are seeking to advance. You could hardly pick a worse example than Ricci for this point. As a result of the court's ruling here, corporations are likely to be inundated with lawsuits as the judiciary attempts to define at just what point affirmative action programs go too far. Had the case been decided the other way, businesses could have rested assured that the affirmative action programs they've instituted to avoid liability wouldn't be accused of overreaching.
"They just prefer when they advance the interests of white people."
Au contraire, dear blogger. They just prefer when they advance the interests of corporations. The fact that most corporations are run by white men is beside the point?
Actually, the corrected quote should be:
"They just prefer when they advance the interests of RICH white people."
Furthermore, Mr. Yglesias, you do not seem to understand what "judicial activism" means.
It is also known as "interpretative" law, and is in exact opposition to originalism.
Sotomayor could not have engaged in activism however she ruled (or agreed), as the written laws (the Civil Rights Act and the 14th amendment) seem to be in direct conflict.
In short, overruling precedent would not have made her an activist. Nor is the 5-man majority in Ricci activist; their decision was based explicitly on written laws.
Understand?
And... I stop reading the Daily Beast.
This is the last straw; what a garbage article.
*bookmark changed*
*searching for decent news outlet*
Take a moment to ponder.
How do you go about explaining things like racism, institutionalized oppression and power structures to people who have absolutely no familiarity with that line of thought and are used to seeing prejudice only as individual acts of intolerance?
Obviously there are people who just want to maintain their privilege at all costs, and (whether consciously or unconsciously) see any challenge of the status quo as some kind of threat to their dominance. But I think there are also genuinely well-meaning people who don't understand, for example, why it sounds ridiculous when white people claim to be oppressed, or why having gay pride parades but not straight pride parades isn't actually unfair, because they only see prejudice/oppression as straightforward individual acts, like, for example, going up to someone and saying "I hate you because you're a member of Group B."
They don't seem to understand the way prejudice operates as a systemic institution that privileges Group A above Group B in the way society operates, and indoctrinate people from birth to view Group A as inherently superior to Group B and reinforces the ways in which Group B is disadvantaged.
Sorry to lose you, buffgbob. Say hi to WorldNetDaily and Fox News.
Anyone who only gets their news from one source is blind. Blind to the fact that most of these blog sites are leaning in one direction or another. That's not to say that a left or right leaning story is wrong just that it should be taken with a big helping of salt.
If you only frequent one source for news, or discount something just because you dislike the source.You are willfully pulling the wool over your eyes.
Baaahhh
buff left in a huff. Pompous Lindsey Grahm sure thinks high of himself with his snarky, smary, and self righteous opening comments.
Oh, give me a break, Yglesias. Is it "helping the white race" to insist that the people who can actually pass the tests are the ones who get promoted.
I never hear the affirmative action crowd whining that airline cockpits and the ranks of cardiologists and brain surgeons don't perfectly represent all the colors of America.
I know for sure that there aren't very many black airline pilots. or even black private and non-airline commercial pilots. Must we immediately remedy this?
Is it "helping the white race" to insist that tests are given that only white people can pass?
Remember the great southern tradition of denying blacks the vote because "they weren't educated enough"?
As for airline pilots, cardiologists, and brain surgeons, I suspect that the dismal state of education in mostly-black schools (as well as the relative lack of financial resources of most black families) would help account for the few blacks in these professions.
I assure you that lots of people of all races want a level playing field.
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"They just prefer when they advance the interests of white (I think you mean "all") people". That's the only problem with your thinking, Mr. I.
While watching the confirmation hearings yesterday and in particular that little slimy punk from Alabama it struck me that the Republican Party through leadership of the drug addict Limbaugh and the Clown Beck has become more aligned with White Supremacist organizations like Stormfront than mainstream America. Heck, you mignt as well give 'em sheets and hoods.
Thank you.
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