Affirmative action, Supreme Court style

As soon as I heard that Supreme Court justice David Souter was retiring, I knew it was coming. Whoever President Obama named to replace Souter was sure to be too liberal and too much of a judicial activist to please most Republicans. A protest was sure to follow, though it would likely be an unsuccessful one.

The process has unfolded pretty much as expected, but the line of attack on Sonia Sotomayor from the conservative talking heads has taken on a slightly unexpected wrinkle. Who would have guessed that we’d live to see the day when Rush Limbaugh would call the first Hispanic female to be nominated to the Supreme Court by our first black president a racist?

I can’t say that I saw that coming. But maybe I should have.

After all, given the reality of politics it was a near certainty that the president was going to nominate someone who was 1) not a male and 2) not a Caucasian. And given his stated desire to find a justice who possessed a high degree of “empathy”, perhaps it was just as certain that we’d get a nominee who considered their experience as a non-Caucasian female to be an important factor in their judicial decision-making process.

And that seems to be what we got. Judge Sotomayor has plainly stated that she believes that the fact that she is a Hispanic female allows her to “more often than not reach a better conclusion than a white male who hasn’t lived that life.” Add to that the fact that she was part of a panel of judges that ruled against a group of white firefighters who had about as solid a case of reverse discrimination as any that has ever been brought before a court in this country and you have all the fuel Republicans could possibly need to stoke the fires of “reverse racism.”

Only most of them aren’t going to go down that road. This is a fight they would almost certainly lose, and they would probably look bad while doing it. They don’t have the numbers or the credibility right now to seriously challenge a president with a high approval rating and charisma to burn. And frankly, Judge Sotomayor is seen as something of a moderate (for a liberal), and there is a feeling among some conservatives that they could have done a lot worse.

It really is too bad that we can’t have a real discussion on Judge Sotomayor’s qualifications in the midst of all of this talk about race and gender. Is she one of the finest legal minds in the country? Does she have a reputation for writing groundbreaking, well thought-out opinions? Is she respected in the legal community as one of the best at her profession?

From what I can tell, the answer to all of those questions is a resounding “no.” Judge Sotomayor seems like a fine person, and she is a real American success story. But if you threw her resume in a pile with the most respected 100 judges in the country and blacked out the information about their race and gender, do you think the president would have picked her name based solely on her qualifications? It seems very unlikely.

And that is exactly why affirmative action is a dirty word for some people. At its worst it screens out potentially qualified job applicants because they aren’t a member of the protected class, and it seems very likely that many qualified jurists had no chance to compete for a spot on the court this time around because they didn’t have the right skin color or reproductive organs.

I suppose that when the next spot on the court opens up, another underrepresented demographic may get their chance at bat. I’m thinking that a transgendered Asian judge may have a great shot at filling the next vacancy.