Conservatives latched onto one out-of-context quote from one of Sonia Sotomayor's speeches to argue that she was a dispenser of race-based justice. Today they're praising Justice Kennedy's opinion in the Ricci case calling for "a strong basis in evidence" for cities to throw out test results based on disparate impact, but the overwhelming evidence shows that Sotomayor's ethnic background has done nothing to influence her rulings in race-related cases. Conservatives didn't have a "strong basis in evidence" to claim otherwise, but they did anyway.
Of course, there is another justice who testified to how his ethnic background affected his jurisprudence, and that was Samuel Alito. Testifying in front of the Senate during his confirmation hearing, Alito said:
When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.
Frank Ricci, the plaintiff in that case, is Italian American, just like Samuel Alito. Was Alito thinking about "people in his own family" who "suffered discrimination because of their ethnic background" when he cast his vote in the Ricci case? Was his ruling and concurrent opinion affected by his "taking that into account" as he says he does in such cases?
There's no way to know. But what I find interesting is that no one's even asking the question. No one is suggesting, despite Alito's own statements, that his ruling was based on racial or ethnic sympathies. No one is questioning his motives or his judgment. In our national conversation, bias is something people of color and women have toward white men, not the other way around, history be damned. This isn't a new phenomenon either, based on some sort of (nonexistent) "reversal of fortune" for white men in society--they asked the same questions of Thurgood Marshall that they're now asking of Sotomayor.
-- A. Serwer
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