Let's Have That Discussion About Race, Shall We?
The nomination of Sonia Sotomayor to the Supreme Court has vaulted the president, the Senate, and the entire country into a discussion about race and the meaning of equal protection under the law. The president could have gone another route -- choosing, for example, a distinguished justice like Diane Wood who did not have controversial decisions, speeches, and law review articles suggesting that there are different strains of jurisprudence depending on the ethnicity of the judge. But he did not. And now Eric Holder will have his wish -- everyone is talking about race.
The much-discussed New Haven firefighter case encapsulates many of the arguments which rage today about "diversity," race, and equal protection. And it suggests Sotomayor is not the sort of judge to enforce the colorblind conception of the Constitution which was the foundation of the civil rights movement and which is set out in the plain language of the 14th Amendment. ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")
Frank Ricci, a dyslexic white firefighter, brought suit after the city of New Haven threw out the test scores on a promotion exam which none of the African American firefighters passed. Stuart Taylor explains:
A three-judge panel including Sotomayor upheld, and adopted as its own, a federal District judge's ruling against the white firefighters. The panel set aside the anti-discrimination principle on the grounds that New Haven feared (among other things) that promoting the whites "would subject the city to public criticism" and would probably result in a disparate-impact lawsuit by blacks "that, for political reasons, the city did not want to defend."
So much for the anti-discrimination principle -- not to mention President Obama's professed desire to find judges with "empathy" for, among others, wronged workers who sue employers and for people who invoke their "individual rights" against governments.
The other Clinton-appointed Hispanic judge, Jose Cabranes, was so disturbed when he learned of the panel's curiously "perfunctory disposition" that he sought to have it reconsidered by the full 2nd Circuit. He lost by a 7-6 vote. In a dissent for the six, Cabranes suggested that the case might involve "an unconstitutional racial quota or set-aside."
"At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"
Sotomayor's argument in support of the city is a strange one indeed. One wonders how we have gotten to the point at which city officials are cowed into abandoning equal treatment of its citizens for fear of "bad press" and of the "civil rights" lobby, which stands ready to pounce on any employer (private or public) whose "numbers" don't look "right." (The city didn't say that its test was defective, only that it would have to go to the trouble of defending the exam against the sort of meritless claim that is all too popular these days.)
It has long been accepted in state and federal anti-discrimination law that employers can't discriminate in hiring because of "customer preferences" (e.g., a restaurant can't defend refusal to hire African-Americans on the grounds its customers are bigots and won't frequent the restaurant). It simply isn't a good argument to say that you can treat someone differently on the basis of race because some third parties would otherwise make a fuss.
But here Sotomayor and the rest of her panel in essence gave the mob of aggrieved race-conscious advocates a veto over the employment decisions of city officials. The "they won't like it" defense doesn't excuse kowtowing to racist customers, and yet Sotomayor offered protection for city officials who she rightly suspected wouldn't have the nerve to defend in court their own fair treatment of Frank Ricci. One can understand how it is that spineless politicians make such political calculations. It is nevertheless hard to understand why an appellate judge would allow and encourage such behavior.
And then there is the issue of Sotomayor's back-of-the-hand treatment of the firefighters' claims. As Cabranes pointed out, it was hard to miss the constitutional issue. Well, unless the aim was to hide the case from full review.
But perhaps there is a less nefarious but no less disturbing explanation. As her "wise Latina" speech showed, Sotomayor is very much a product of and proponent of the new civil rights movement. Progress is a function of numbers:
In 1992, nearly ten years ago, when I was first appointed a District Court Judge, the percentage of women in the total federal judiciary was only 13%. Now, the growth of Latino representation is somewhat less favorable. As of today we have, as I noted earlier, no Supreme Court justices, and we have only 10 out of 147 active Circuit Court judges and 30 out of 587 active district court judges. Those numbers are grossly below our proportion of the population.
And the goal is clear:
We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.
That movement doesn't envision that the Frank Riccis have legitimate claims to be treated purely on the basis of merit. It's all about the numbers. As U.S. Commission on Civil Rights member Abigail Thernstrom puts it, "She's a quintessential spokesman for racial spoils."
The civil rights movement today has been hijacked by advocates of race-based preferences in hiring, education, and contracting and by those who sneer at the notion of colorblindness. The "game" now is to get the numbers right -- that is boost the numbers of some but not all "disadvantaged minorities." ( The affected individuals personally don't need to have been disadvantaged, of course. And if your minority group is successful, don't expect any favors.) And progress is measured by the collection of data and never-ending tut-tutting which follows the inevitable discovery that members of different racial and ethnic groups do not succeed in various endeavors in exact proportion to their share of the population. It doesn't dawn on the self-appointed gurus of racial "fairness" that the number-counting is itself pernicious.
So maybe Sotomayor was not finagling to deprive Ricci of his claim; she might have been clueless. She didn't spot the constitutional issue because she doesn't conceive of the 14th Amendment as a barrier to racial bean-counting. The city's motives are assumed to be "good" -- because who wants to get in the cross-hairs of the NAACP, after all? There is no inkling that what the city and the race-conscious civil rights lobby are up to is fundamentally wrong and violative of the essence of "equal protection."
We will hear more and more about Frank Ricci and what Sotomayor thinks about equal protection. But it may be that in his search for someone who "understands the impact of law on average people" or who embodies "empathy" Obama has selected someone who is blind to the plight of those like Frank Ricci, upon whose rights the new civil rights lobby would gladly trample. And it certainly appears that the president has found a judge who thinks the 14th Amendment doesn't mean what it says.