Written by Stephen Menendian and Brookes Hammock
Judge Sonia Sotomayor of the Second Circuit Court of Appeals is the nation’s first Latina nominated to the United States Supreme Court, and would be only the third woman to join that bench. Shortly after her nomination, in response to a speech Sotomayor made in which she claimed “that a wise Latina woman” would “reach a better conclusion than a white male who hasn’t lived that life,” Rush Limbaugh and others called her a “reverse-racist.”
That charge emerged again in the wake of the Supreme Court’s ruling in Ricci v. DeStefano. In Ricci, white and Latino firefighters sued the city of New Haven when it refused to certify the results of an advancement test that would have resulted in the promotion of no African American test-takers. Concerns were raised that the test-–60 percent of which was multiple choice—had serious design flaws as a measure of performance qualifications.
A three-judge panel—composed of Judge Sotomayor and two of her fellow circuit judges—affirmed a federal district court decision in favor of New Haven, holding that it properly refused to certify a test that probably violated Title VII.
The Supreme Court, however, reversed that decision and found that New Haven intentionally discriminated against white and Latino firefighters when it threw out the test. Frank Ricci, the named plaintiff in this so-called reverse discrimination case, is set to testify at Sotomayor’s confirmation hearings. Judge Sotomayor’s status as a serial reverse-racist is clearly on the agenda.
This peculiar salience of race should give us pause because the Obama administration has been allergic to explicit discussions of race. Although the administration has failed to make the case for Sotomayor as a Latina woman, it’s a sure bet that Senate Republicans won’t hesitate to use race to make the case against her. Frank Ricci—victim of racism, now vindicated—will be Exhibit A.
Judge Sotomayor’s nomination hearings offer a unique opportunity to engage in constructive and inclusive conversations about race. We must make the positive case for race: to demonstrate the continued need for equal opportunity in the face of structural racism; to describe the benefits of diversity in institutional decisionmaking; to argue against the erosion of civil rights laws like Title VII. And that’s just the beginning.
There is little doubt that Sotomayor will win confirmation. Her near-certain victory, however, doesn’t excuse our failure to engage. It’s time for us to talk about race and make the case for Sotomayor.
Stephen Menedian is Senior Legal Research Associate at the Kirwan Institute for the Study of Race and Ethnicity. Brookes Hammock is the Legal Intern at Kirwan.