Sotomayor's Opponents Apply Racial and Gendered Double-Standard

The hundreds of cases Sonia Sotomayor has decided do not allow her opponents to build an honest case against her. Accordingly, they seek to portray her as unfit for the Supreme Court by extracting and distorting phrases from a few of her speeches and law review articles. Sotomayor's opponents have relied heavily on comments she made during a 2001 conference at the University of California at Berkeley in order to portray her as a racist and impartial jurist. Although Media Matters has handily refuted such arguments, I have not seen any media coverage that examines similar race and gender commentary by current and former Supreme Court justices. If Sotomayor's comments on race and gender make her unfit for the Supreme Court, then statements by Justice O'Connor, Justice Rehnquist (now deceased), Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Ginsburg make them unfit for the Supreme Court as well.

Justice O'Connor
In JEB v. Alabama, O'Connor agreed with the majority of the Court which held that prosecutors could not exclude jurors based on sex. O'Connor, however, wrote a concurring opinion that criticizes the view that gender is irrelevant to the legal process:

We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

O'Connor also stated that she hoped the Court would not extend the ruling to prohibit private lawyers from considering gender when selecting jurors. O'Connor said that a reasonable attorney would want women on the jury in cases such as sexual harassment. Clearly, O'Connor believes that women offer a qualitatively different (perhaps even better) perspective than men in certain settings.

Justice Ginsburg
In United States v. Virginia, Justice Ginsburg wrote the majority opinion invalidating a Virginia Military Institute policy that excluded women. Ginsburg's opinion discusses the relevance of gender in society and law, citing a long line of Supreme Court precedent:

Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .

"Inherent differences" between men and women. . .remain cause for celebration. . . .Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . [and] to advance full development of the talent and capacities of our Nation's people. . . .

Ginsburg believes that gender remains relevant for the advancement of the "talent" and "capacities" of the Nation, and the Supreme Court continues to validate laws and policies which it concludes rest on "real" or "inherent" differences between men and women. Supreme Court precedent credits the very claims about sex that Sotomayor has previously made.

Justice Scalia
In McCleskey v. Kemp, Scalia voted with the majority and rejected the petitioner's claim that Georgia applied the death penalty in a racially discriminatory fashion. The majority concluded that McCleskey did not prove the he suffered from discrimination in his individual case. Prior to the issuance of the McCleskey decision, however, Scalia wrote a memorandum to the other justices in which he stated that he actually did not need additional "proof" of racial discrimination because he believes race influences jurors and prosecutors but that the Supreme Court could not eradicate this behavior:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Furthermore, in Johnson v. Transportation Agency of Santa Clara County, Scalia argued that white men are "victims" in society but that women and people of color are powerful. He made this observation in a dissenting opinion, which disagreed with the majority's conclusion that an employer did not violate federal antidiscrimination law by taking gender into account when it decided to promote a woman over a male candidate: "[T]he only losers in the process are the Johnsons of the country . . . ."

Not only does Scalia "empathize" with white men, but he concludes that they are powerless relative to women and persons of color, and his believes the Court should have issued a ruling based on this observation. If Scalia's views on race and sex do not disqualify him from the bench, then neither should Sotomayor's prior statements.

Justice Rehnquist
Before Justice Rehnquist was confirmed to the Supreme Court he had a history of racial insensitivity. For example, as a law clerk, he advised Justice Jackson to uphold the "separate but equal" principle announced in Plessy v. Ferguson and to vote against the plaintiffs who challenged school segregation in Brown v. Board of Education.

Rehnquist also urged Justice Jackson to rule that the Democratic Party's use of "white primaries" in Texas (which excluded black and Latino voters) did not violate the Constitution. Rehnquist, seemingly exhausted by the racial progress that occurred during his clerkship, argued that: "It is about time the Court faced the fact that the white people of the south don’t like the colored people. . . ."

As the Attorney General in the Nixon administration, Rehnquist, echoing his opposition to Brown, drafted a constitutional amendment which would have banned busing in order to remedy school segregation. Also, as a resident of Phoenix, Arizona he opposed the enactment of a local ordinance that banned racial discrimination in places of public accommodation. Despite his racist views, Rehnquist was confirmed as an Associate Justice and later as Chief Justice over the objection of liberals who cited to his past racial positions.

Justice Kennedy
Justice Kennedy authored the majority ruling in Gonzalez v. Carhart, which upheld the federal prohibition of partial-birth abortion. In the ruling, Kennedy expresses empathy toward hypothetical women whom he says could regret their decision to undergo the procedure. Based on his romanticized and paternalistic notions about gender, Kennedy argues that Congress could ban the procedure altogether in order to protect women from their bad decisions:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .

As Ginsburg notes in her dissent, Kennedy's "way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . ." Kennedy's ruling implies that the 5-male majority in Carhart (and the hundreds of men in Congress who enacted the law) can make better decisions than women who want to undergo this procedure after consulting their medical providers. Kennedy's gender-based perspective, however, has not eroded his prestige among conservatives.

Justice Thomas
Finally, Justice Thomas has discussed race by drawing upon his experiences as a black person who grew up in Southern segregation (see this series of articles discussing his autobiography). For example, Thomas always agrees with conservatives in affirmative action cases, but he usually writes separately to discuss his views about the negative impact of affirmative on blacks -- a position that many blacks reject.

Thomas also wrote a passionate dissent in Virginia v. Blacks, a case in which the Supreme Court invalidated a Virginia law that made cross-burning a crime. A majority of the Court argued that the statute infringed the First Amendment. And while there were several dissenting opinions, Thomas, who admits growing up in fear of the Ku Klux Klan, wrote a dissent, in which no other justice joined. Thomas argued that cross-burning is never intended to do anything other than convey a threat or to intimidate individuals:

That cross burning subjects its targets, and, sometimes, an unintended audience. . .to extreme emotional distress, and is virtually never viewed merely as "unwanted communication," but rather, as a physical threat, is of no concern to the plurality.

Thomas's experience living in fear of the KKK undoubtedly shaped his opinion in this case. Nevertheless, Thomas remains a respected jurist among conservatives.

Final Thought
Despite the use of race- and gender-based decision making by many Supreme Court justices -- including beloved conservatives -- Sotomayor's opponents continue to argue that she is unfit for the bench. As conservatives question Sotomayor's impartiality, they should also question the blatant double-standard they are using to challenge her nomination.

For links to all of my articles on Sotomayor, CLICK HERE.

No Longer "PC Liberal Fascist Rhetoric": Conservatives Are Suddenly Concerned About Race!

Conservative opponents of Sonia Sotomayor are making a stink about comments she made in a speech at the University of California at Berkeley in 2001. Taking the quote entirely out of context, people like Rush Limbaugh and Newt Gingrich, who normally dismiss allegations of "racism" as the misguided rantings of a politically correct liberal fascist scary monster, are seemingly preparing to launch sit-ins at the Supreme Court until they get justice.

Today, Senator Lindsay Graham joined the theatrics and has demanded that Sotomayor apologize for the comment, saying that it calls into question her objectivity. Graham's demand for an apology, however, raises concerns about his own ability to read or to conduct research. The SCOTUS blog has published an empirical study of all of the race cases that Sotomayor decided as a judge, and there is absolutely no evidence which demonstrates that she lacks objectivity. In fact, in one case, she cast a dissenting vote arguing to save the job of a racist white cop. But Sotomayor's opposition is undaunted by facts.

Sotomayor versus Rehnquist and Scalia
I find it odd that conservatives have as sudden concern that judges might exhibit racial biases. The late Chief Justice Rehnquist and Justice Scalia, for example, have a history of voting against persons of color and in favor of whites in racial discrimination cases, but they have never received the same level of scorn from conservatives.

Prior to joining the Supreme Court and before he became elevated to Chief Justice, Rehnquist made many horrible statements about race. For example, he was a law clerk for Justice Jackson when Brown v. Board of Education was pending. Rehnquist wrote a memorandum in which he urged the judge to confirm the "separate but equal" ruling in Plessy v. Ferguson -- the case that legitimized Jim Crow and segregation. Rehnquist denied that the memorandum expressed his own viewpoints, although Jackson voted with the Brown majority. Jackson's administrative assistant also offered sworn testimony in which she stated that Jackson's law clerks always wrote memos that advised the judge how to decide cases, rather than summarizing the judge's own viewpoints (her testimony describes the role of most law clerks across the nation).

Rehnquist also wrote two additional memos for Jackson that urged him to rule against blacks who sued the Democratic Party to challenge its "White Primaries" in Texas. The Democratic Party argued that as a "private" organization, it was not bound by the Constitution. Rehnquist agreed and asserted that:

The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south don’t like the colored people; the constitution restrains them from effecting thru (sic) state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.

Rehnquist's argument mirrors the Supreme Court's logic in Plessy and in the Civil Rights Cases (a 19th Century case that struck down a federal law banning racial discrimination in places of public accommodation).

Before he became a judge, Rehnquist also opposed a Phoenix, Arizona ordinance banning racial discrimination in local places of public accommodation (hotels, restaurants, etc.). Furthermore, while he was an Attorney General in the Nixon administration, he proposed a constitutional amendment that would have banned "busing" in order to achieve school desegregation.

Despite his "nasty" and clearly racist rhetoric, Rehnquist was confirmed as an Associate Justice and later as Chief Justice. It is not surprising that in most race cases he decided, Rehnquist voted against persons of color and in favor of whites.

Justice Scalia did not have the pronounced record on race that Rehnquist had prior to becming a judge, but his voting record is nearly identical, if not more conservative. One of the most striking racial moments for Justice Scalia involved a case regarding the death penalty. I wrote about this case and Scalia's views on race in an earlier blog post, which I will now quote:

In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. . . .

The majority found that, notwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Sotomayor, like Scalia, believes that race and sex impact legal decision making, but Sotomayor believes that judges have to struggle to overcome this limitation. Scalia, by contrast, acknowledges race-based decisions among jurors and prosecutors, but he would not exercise his authority as a judge to remedy the situation--even in a life or death situation.

Scalia, like Rehnquist, argued that the Court needed to just get with the program about race: whites just operate on racial bias, and there is nothing the Court can do about it.

By contrast, in cases with whites or male plaintiffs, Scalia has described women and persons of color as politically powerful and white men as the true "victims" of discrimination and a callous Supreme Court (See: Conservative Judicial Empathy? You Betcha!). Scalia has demonstrated repeatedly where his empathy lies. Despite his racial statements, Scalia remains a beloved conservative, objectively fighting for truth and equality (yes -- dripping with sarcasm).

If Rehnquist's and Scalia's comments and actions as judges are not worthy of rebuke and disdain, then conservatives should discontinue their collective meltdown over Sotomayor's comment. Certainly, conservatives cannot believe that white men should get to sit on the Court despite their demonstrated hostility to persons of color, while Sotomayor, whose statement they have taken out of context in order to portray her as a racist, cannot. Neither Sotomayor's comments nor her rulings as a judge come nearly as close to doing the racial damage that Scalia and Rehnquist have caused with their opinions. If conservatives continue this line of reasoning, they will never gain the support of significant numbers of women or persons of color and will continue to remain outsiders in national politics.

For links to all of my articles on Sotomayor, CLICK HERE.

Update: The New York Times has published a similar article: Rogues, Robes and Racists