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. . . .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.
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.
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