The unelected ayatollahs of the Republican Party have assailed Sonia Sotomayor with a barrage of racial vilification that speaks not to her qualifications but to the shameful character of the modern GOP.
For the offense of stating, perhaps artlessly, that her background gives her a different perspective than the white males who dominate the federal bench, former House Speaker Newt Gingrich denounced the president’s Supreme Court nominee as “a Latina woman racist.” The charge was repellent—itself plainly designed to incite racial animosity. Gingrich paid no attention to the context of Sotomayor’s remarks or to her point that as a judge you have to “check your assumptions.” He ignored her obvious meaning—that, like Thurgood Marshall on the Supreme Court, a judge from a previously excluded minority can enrich the vision and wisdom of the judicial process. This view was long ago endorsed by Justice Oliver Wendell Holmes, Jr., who said: “The life of the law has not been logic; it has been experience.”
All judges read statutory or constitutional language through the prism of their own lives and what they know of the world. If all that counted were logic and words, and their meaning was forever plain and unambiguous, there would be no dissenting opinions. (Indeed, a recent study reinforces the insight of Holmes and Sotomayor: Judicial panels that include at least one woman are 15 percent more likely to rule for the plaintiff in a sex discrimination case than panels that are all-male.)
The other charges against Judge Sotomayor range from the misleading to the contrived and irrelevant. She was a member of a three-judge panel that upheld the city of New Haven’s decision to void a promotion test for firefighters on the grounds that it discriminated against minorities. But she was merely upholding long-established precedent. Although the activist Roberts Supreme Court may overrule the panel’s decision, affirmative action is still written into federal regulations and laws.
And what about Judge Sotomayor’s observation—so shocking, shocking to her critics—that federal circuit courts are where “policy” is made? It’s inescapably true. District courts try cases; appellate benches set the policies with their binding, circuit-wide interpretations of law. As University of Texas law professor Frank Cross puts it, the circuit courts exercise “the greatest policymaking role in the judicial system.”
Or take the allegation that she’s a tough questioner who interrupts lawyers from the bench. There’s a whiff of sexism here: Is the practice supposed to be the exclusive province of men such as Justice Antonin Scalia? Or is Sotomayor supposed to be seen and not heard, like the notoriously mute Clarence Thomas?
Facts don’t matter to the GOP’s ayatollahs. Isn’t it appalling, howls the xenophobic ex-Congressman Tom Tancredo, that Sotomayor was on the board of the national Hispanic civil-rights group La Raza? But contrary to Tancredo’s lies, the group is not a secessionist movement advocating an independent Hispanic homeland across the Southwest. It’s a garden variety ethnic lobby. George W. Bush spoke to the national convention of La Raza in 2000, when he was courting Hispanic support. Undeterred, Tancredo has libeled Sotomayor as a member of “the Latino KKK.”
Less luridly, Nevada Sen. John Ensign questions whether she has “the right intellect”—a classic code for denigrating nonwhites. White House Press Secretary Robert Gibbs had a brilliant reply, wondering aloud what rank Sotomayor’s critics had achieved “in their class at Princeton, but my sense is it’s not second.”
That should have ended the argument. Instead, commentator Fred Barnes emerged from the conservatives’ amen corner to push the intellect canard, suggesting that in this era of affirmative action, maybe the only grades at some elite universities are “D-minus” and “summa cum laude.” For the record, Sotomayor was also awarded what Princeton describes as “the highest general distinction” it confers on an undergraduate.
Neither I nor my fellow Georgetown alum Pat Buchanan were summa cum laude, either. But on MSNBC, Buchanan denigrated Sotomayor as “that woman,” and even refused to say whether he favored civil rights. Glenn Beck, who never received a college degree, carried the smear campaign to an obscene low when he referred to Sotomayor as a “Latina chick lady.” (He’d be fired from Fox Sports Network for the hate speech he is paid to purvey on Fox News.) And then there’s the de facto head of the Republican Party, the similarly degree-free Rush Limbaugh, who has compared the judge to David Duke.
Elected Republicans, trapped between their rabid base and the doomsday scenario of permanently alienating Hispanics, are mostly trying to have it both ways. On “Meet the Press,” Alabama’s Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, bobbed and weaved, unwilling to say whether he thought Sotomayor was “a racist” while championing the right of his party’s loudmouths to “make the analogies they want.” Texas Sen. Kay Bailey Hutchison, who has her eye on the Governor’s race next year, says she’ll resist a filibuster against Sotomayor, but her Texas colleague John Cornyn darkly warns against “race-conscious decisions.”
Is all this just a case of elephants gone mad? Sadly, no. The shameful truth is that much of the success of the modern Republican Party is founded on appeals to racial division. The strategy was born in 1964, when GOP standard bearer Barry Goldwater campaigned against the Civil Rights Act. In his landslide loss to Lyndon Johnson, Goldwater carried five states in the Deep South. Richard Nixon took note, and the GOP’s “Southern Strategy” was born again and here to stay. At the 1968 Republican Convention, Nixon denounced “busing” and “the use [of] the South as a whipping boy.” As president, he maintained his hostility to civil rights, which he had favored in the 1950s, as a cynical political choice.
Ronald Reagan extended the racial franchise. Over the objection of his pollster, Richard Wirthlin, Reagan opened his 1980 general election tour in Philadelphia, Miss., the notorious killing field where three civil-rights workers had been brutally murdered in 1964. There, Reagan swore his allegiance to “states rights” in front of a delirious crowd of disaffected whites. As President, Reagan sought unsuccessfully to thwart renewal of the Voting Rights Act, and resisted creation of the Martin Luther King Jr. holiday and sanctions against the apartheid regime of South Africa. He also favored tax breaks for segregated schools.
In an anonymous interview he gave during Reagan’s presidency, Republican operative Lee Atwater—he was revealed as the source after his death—detailed the evolution of his party’s race-baiting. “You start out in 1954,” he said, “by saying ‘nigger,’ ‘nigger,’ ‘nigger.’ By 1968, you can’t … that backfires. So you say stuff like forced busing, states' rights, and all that stuff.” As George H.W. Bush’s chief strategist in 1988, Atwater added a new chapter when he made Willie Horton, an African-American convict who had committed rape while on a prison furlough in Massachusetts, the moral centerpiece of Bush’s campaign.
With their attacks on the nomination of Judge Sotomayor, the Republicans have moved beyond African-Americans to Hispanics. GOP strategists warn that the party can’t hope to win another presidential contest without sizable support from Hispanics. But after more than four decades of taking their race rhetoric raw, the Republican base isn’t very responsive to arguments based on demographic trends. They’re determined to raise the stars and bars forever and maintain racial purity.
At stake here are not just electoral equations, or the confirmation of a superbly talented justice for the high court, but the soul of what used to be the Party of Lincoln. Republican senators must decide—soon—whether they are prepared at long last to break with the night riders and reclaim the banner of a Republican Party that can bear the light of a new day.
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