In the minds of her detractors, the hue and cry about Sonia Sotomayor's incessantly distorted comments about how background affects jurisprudence are about Sotomayor's predilection for "tribal justice." Sotomayor's detractors have called her a judicial activist who tailors her opinions based on race.
Yet one empirical study of her rulings after another has shown this isn't the case. Even in the Ricci case, Sotomayor's decision to rule in favor of the city was based on established precedent--it's just that conservatives didn't like the precedent. That won't stop Republicans from using the plaintiffs in the Ricci case to try and embarrass Sotomayor during her confirmation hearing, as two of the plaintiffs, Frank Ricci and Ben Vargas, have been called to testify.
Vargas, the only Latino firefighter to be denied promotion along with the other firefighters, will be used to deflect the obvious: Conservatives are concerned about racial discrimination exclusively when they see it happening to those they identify with, which most of the time happens to be white men.
Vargas and Ricci are not legal experts. They won't be able to argue legal matters better than the avalanche of legal experts who have endorsed Sotomayor, like the American Bar Association or conservative legal champion Ken Starr for example, or that Sotomayor wasn't doing her job right when she ruled in New Haven's favor. They are there to be sympathetic plaintiffs who were "denied justice" by Sotomayor. Despite Republican caterwauling about empathy in judicial nominees, the case against Sotomayor is increasingly being defined by her decision not to empathize with the plaintiffs in the Ricci case instead of following precedent. Moreover, despite the hyperbole of the majority's ruling--the plaintiffs were not denied promotions because they were white. The test was thrown out because the city feared a discrimination lawsuit based on the racial breakdown in test results. I'm also hard pressed to think of a time when Democrats pulled a similar stunt by say--bringing the relatives of victims of a mass shooting to protest a conservative's rulings on gun rights.
More frustrating is conservatives single-minded focus on discrimination in society--but only as it applies to people they identify with. If only there were as much outrage about say, banks targeting "mud people" for "ghetto loans" as there are for circumstances of so-called "reverse racism." Instead of outrage though, we get conservatives blaming the government for outlawing discrimination against borrowers based on skin color.
-- A. Serwer
