Sotomayor, Souter, and Identity Politics

One of the clear effects of the Sotomayor nomination is that we're going to be talking — a lot — about affirmative action, for the first time in awhile. Of course, there is the rehearsed sense of outrage, from conservatives, that this Hispanic woman was nominated at all. So many qualified white men were available for the job! But is there any evidence that Judge Sotomayor's actual legal opinions on matters of race and gender vary from those of the white dude she would replace on the Court, David Souter? In short, no — at least not yet.

The Court will soon release its decisions in two cases with gender and race implications: Safford Unified School District v. Redding, which considers the legality of a strip-search of a 13-year old girl, and Ricci v. DeStefano, which deals with the city of New Haven's decision to cancel the results of a firefighters' exam after no black applicant scored high enough to qualify for a promotion. Ricci comes to the Supreme Court from Judge Sotomayor's Second Circuit Court, where she sided with the liberal majority, upholding New Haven's right to cancel the firefighter test results. And in a case similar to Redding, Sotomayor questioned the legality of strip-searches. Unless Souter votes in one or both of these cases to overturn Sotomayor's decision, it seems to me there is little meat to Republican claims that Sotomayor will significantly move the Court to the left in terms of identity politics.

So what are Souter's likely opinions on these cases? When it comes to race, in 2003 he voted with the majority to uphold elements of the University of Michigan's affirmative action program in admissions. In 2007 Souter sided with the minority that wanted to allow municipalities to consider race in assigning students to public schools, in order to foster integration. And during the Ricci hearings, Souter was clearly sympathetic toward New Haven's position, not that of the disgruntled firefighters. From the bench, he said "the most reasonable reading" of the conflict between the test results and New Haven's civil rights obligations was to "[give] the city an opportunity, assuming good faith, to start again" and design a new test. In short, David Souter is a white man who doesn't pretend to live in a color-blind world. He has never shown the tendency of, say, swing vote Justice Anthony Kennedy, to pretend racial discrimination does not exist, or that it has no significant public policy ramifications.

In the Redding strip-search case, Souter's decision is less of a forgone conclusion, since he suggested during arguments that if the drug the school had been searching for had been stronger than ibuprofen, he might be sympathetic to the idea that a humiliating strip-search was necessary. "The … reasonable analysis in the principal's mind is, 'Better embarrassment than violent sickness or death,'" Souter mused from the bench.

Yet as Adam has eloquently written, it is really the Ricci case, more than any other, that is animating Washington Republicans at the moment. Unless Souter surprises us and votes to overturn the Second Circuit's Ricci ruling, I simply don't see an anti-affirmative action campaign against Sotomayor gaining much traction.

cross-posted at TAPPED

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