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Think Again: Sotomayor and SCOTUS, Captured on a Carousel of Time

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SOURCE: AP/Manuel Balce Ceneta

Supreme Court nominee Sonia Sotomayor broke her ankle when she stumbled at LaGuardia Airport on June 8, 2009.

Sonia Sotomayor’s confirmation hearings are not scheduled to begin until mid-July, but her punditocracy hearings are already well underway. This week they’re all about her now infamous (and almost always decontextualized) "wise Latina" comment.

Pat Buchanan regularly reminds the public that Obama’s nominee can’t wait to get her hooks into the rights of white men. Michael Steele concurs, explaining: "God help you if you’re a white male coming before her bench." Shelby Steele, in a triumphant act of hyperbolism, claimed that “Sotomayor has demonstrated a Hispanic chauvinism so extreme that it sometimes crosses into outright claims of racial supremacy.”

And Rush Limbaugh’s growls grow goofier by the day. After Sotomayor tripped and hurt herself at the airport, Limbaugh wondered allowed whether a white male judge would have fractured his ankle in a similar fall. National Review meanwhile, confused everyone, including themselves, mixing up racial stereotypes by dressing up their "Wise Latina" as a stereotypical Buddha. “Just wait,” we hear them thinking, “until Real America hears about this.”

Alas, there’s no substance there; not on abortion; not on guns; or land expropriation. In fact, the debate over Sonia Sotomayor’s "priorities" has shed next to no light on the nominee views or decisions, but has proven awfully revealing about the state of conservatives’ collective neuroses.

Never mind that Sotomayor herself is almost irrelevant to the process. Conservatives found her (or “him”) scary even before they knew who she (or “he”) would be. As we wrote weeks ago, the movement set out to redefine the meaning of the word “empathy” to evoke notions of Che Guevara and the Black Panther Party. Funnyman Limbaugh joked that the ideal nominee would be "a teenage single mother, who’s gay, is a lesbian, who’s dirt poor, African American, and disabled."

Hysterical Hannity added that the "chances… are zero" that a "radical" Obama would pick someone who would "follow the rule of law and the Constitution." A petrified Pat Buchanan predicted that the next nominee would demonstrate that "What is happening to white men now is exactly what was done to black folks for years." This week at The American Conservative, Daniel Larison complained, “Conservatives write things like this, and then they wonder why minorities flee from them in droves.”

But as these arguments—and many more we have, in our infinite mercy, spared you—demonstrate quite clearly, Supreme Court confirmations are rarely about the alleged issues before the court itself. Rather they are, as former New York Times court reporter Linda Greenhouse argues, “about the politics of the moment as reflected, however clumsily, in the questions the senators choose to ask.” For instance, when Justice John Paul Stevens was nominated back in 1975, immediately after Roe v. Wade, he was not asked a single question about abortion. “[A]bortion was simply not a hot-button political issue in the mid-’70s—it was still waiting quietly in the wings for eventual capture by the right.”

Matthew Yglesias points out that when it comes to Supreme Court nominations, “the controversy is baked into the cake." He writes that much of the ugliness “stems from the whole dysfunctional relationship our political system has to Supreme Court appointments.” Precious few people who disagree, fundamentally, with a president who picks a nominee are likely to approve of that nominee, and yet almost no one is willing to admit to opposing one on purely ideological grounds. Instead, Yglesias correctly notes, “there’s incredible pressure to ‘unearth’ the ‘truth’ about the nominee and how deep down he or she is history’s greatest monster."

As for those hearty few who remain interested in the content of the nominee’s actual views, allow us to recommend the Scotus Blog, where we discovered that in the 75 cases where Sotomayor sat on a panel of judges that rejected a discrimination claim, she dissented just twice. Indeed, her opinions, when examined carefully, do not appear to differ from those of the white guys she works with.

Their team, for instance, has taken it upon themselves to dig into the most accessible source of information about Sotomayor: her opinions as an appellate judge. For people who want a less black-and-white view of her approach to race and racism, perhaps 1999’s Gant v. Wallingford is an appropriate place to start.

Young Ray Gant was transferred mid-year from first grade to kindergarten because of academic problems. Gant’s legal team alleged that the school was “deliberately indifferent to racial hostility that he suffered and discriminated against him through the transfer.” Though Sotomayor took the majority position in dismissing the charge of racial harassment, her opinion made it clear that she thought the transfer did constitute a kind of race discrimination. She noted that “white students having academic difficulties received compensatory help, whereas Gant – the ‘lone black child’ in his class – was not given an ‘equal chance’ but was instead demoted to kindergarten just nine days after arriving at the school.”

The case of Ricci v. DeStefano—which has serious implications for civil rights law—is arguably Sotomayor’s most prominent and enigmatic race-related case. Her brief unsigned opinion, which has been simplified to Hispanic lady destroys white man in reverse racism case, is troubling, but not necessarily because she ruled against a white man.

In 2003, the city of New Haven, CT, used a written test to decide who on its firefighting force would get promoted. Of 118 applicants for positions, 27 were African American and 29 were Hispanic. None of the black applicants passed the exam and only two of the Hispanic candidates passed. New Haven withdrew the test results, much to the chagrin of white firefighters who had scored well.

White firefighter Frank Ricci and 19 others sued New Haven, alleging reverse discrimination. The district court ruled against them, based on precedent. When the firefighters appealed to the 2nd District (where Sotomayor sat), she and a panel of judges adopted the district court’s ruling without adding extra analysis. The troubling part, as Slate’s Emily Bazelon pointed out, is not that Sotomayor ruled against Ricci, it is that she did not "grapple with the difficult constitutional issues" regarding Title VII and the 14th Amendment. Why, Bazelon asked, did she "have nothing to add to the district court opinion"? But, again, that’s a nuanced view. Newt Gingrich trashed the facts and said Sotomayor ruled against the white men for "clearly racial quota reasons."

Slate’s Dahlia Lithwick is also doing fine work on the nominee’s actual record.

When the Supreme Court ruled recently on the “Great Caperton Caper”—in which a justice on the West Virginia Supreme Court refused to recuse himself in an appeal where the party involved had paid millions to put him on the bench—Lithwick compared Justice Kennedy’s majority opinion and Justice Roberts’ and Scalia’s dissents with Sotomayor’s infamous 2001 Berkeley “wise Latina” speech. She wrote:

Nobody is saying in Capertonnot the majority [Kennedy] and not the dissenters [Roberts and Scalia]—that judges are always perfectly neutral. Indeed, everyone agrees, although perhaps not with the effusiveness of Kennedy, that "experience and common sense" and other non-algebraic/geometric intellectual principles can sometimes influence judicial decision-making. Which means that everybody in Caperton is almost but not quite brave enough to say what Sonia Sotomayor has said aloud for years now: That being neutral is hard, perhaps ultimately impossible work and that the best judges are vigilant about trying to stay that way.

Of course nuanced analyses such as these remain outliers. This morning I woke up to a Washington Times editorial with the headline, “Sotomayor’s club for women only.” It argues that “If this judge were a man, the nomination would never make it to the Senate for hearings.” You see the nominee “belongs to an all-female club.” And “Justice Samuel A. Alito Jr.’s supposed membership in an all-male eating club while an undergraduate at Princeton became an issue during his 2006 Supreme Court confirmation hearing.” So, “became an issue” becomes “would never make to the Senate hearings.” How, exactly? Because she believes a “women’s judgment [is] superior to men’s, especially that of a "wise Latina woman" over a white man.” No, really.

If Joni Mitchell were a pundit, we feel confident she’d know what to say:

“And the seasons, they go round and round and the painted pony goes up and down…”

Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College. He is also a Nation columnist and a professor of journalism at the CUNY Graduate School of Journalism. His seventh book, Why We’re Liberals: A Handbook for Restoring America’s Most Important Ideals was recently published in paperback. He occasionally blogs at http://www.thenation.com/blogs/altercation.

Danielle Ivory is a reporter and producer for the American News Project. She lives in Washington, D.C

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