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Race, Republicans and the Supreme Court

When I last wrote about conservative attacks on potential Supreme Court nominee Sonia Sotomayor, I noted that the one case she’s really been pilloried for is her position as one of three judges who affirmed the dismissal of a reverse discrimination case. White male firefighters in New Haven insisted they deserved to be promoted over their black colleagues because they scored better on promotional exams. The New Haven civil service board decided not to base promotions on the exams’ results when they saw that it would have led to promotions of almost all white firefighters in a city where 66 percent of the population is black or Hispanic.

Though the full Second Circuit Court of Appeals declined to re-hear the case, suggesting a majority of judges agreed with Sotomayor, columnists from Richard Cohen of The Washington Post and Stuart Taylor at National Journal to Ed Whelan at National Review have attacked Sotomayor for allowing the city of New Haven to consider the racial impact of determining promotions based purely on an exam that had a racially disparate impact.

If we lived in a society where the law forbids ever taking race into account, then the critics might be right. But we don’t live in a race-blind society and our laws — such as the Civil Rights Act, under which New Haven could have been sued for discrimination if it had promoted only white firefighters — acknowledge that.

Take, for example, the No Child Left Behind Act, one of the signature acts of the Bush administration, signed into law in 2002 with the overwhelming support of both Republicans and Democrats in Congress. That law, recognizing that minority children in this country have historically not done as well in school as white kids, explicitly requires school districts to categorize student success by, among other things, race. And the outcomes make a big difference for the district. If minority children are performing below a certain level, schools are penalized, and eventually can even be closed. So schools have an incentive to target extra resources toward minority students that aren’t performing well to ensure they meet the law’s targets. Isn’t that a race-based standard?

Did any of the Republicans who sponsored the law – including John Boehner (R-Ohio) in the House and Judd Gregg (R-N.H.) in the Senate complain about that? Not that I can tell.

When President George W. Bush and his fellow Republicans included race-based criteria in their legislative agenda, it wasn’t illegal discrimination or affirmative action; it was compassionate conservatism. When a Latina woman is among a group of judges who acknowledge racial realities, she’s a hard-left liberal with a “very expansive” reading of the constitution that’s guided by “her personal feelings” rather than the law.

When President George H.W. Bush nominated Sotomayor to the U.S. District Court for the Southern District of New York, the Princeton and Yale graduate, former prosecutor and commercial litigator, sailed through Senate confirmation with ease. But when President Clinton nominated her to the Court of Appeals, Republicans stalled her nomination for more than a year — reportedly because they knew that a spot on the highly-regarded Second Circuit would situate her well for a future appointment to the U.S. Supreme Court.

TWI’s David Wiegel has written about how Republicans are itching to use President Obama’s first Supreme Court nomination to galvanize Republican loyalists — something The New York Times picked up on this past weekend.

These latest attacks on Sotomayor’s legal opinions are just that — politics, not principle.

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