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Supreme Court Ruling on Conn. Firefighters May Aid Sotomayor Attackers

New America Media, Commentary, Earl Ofari Hutchinson Posted: Jul 03, 2009

Editor's Note: The Supreme Court ruling that white New Haven, Conn., firefighters were discriminated against won't derail Sonia Sotomayor's confirmation as Supreme Court Justice, but it could pay a small dividend to conservative attack dogs in another way, according to author and political analyst, Earl Ofari Hutchinson.

Even before the ink was dry on the Supreme Court's ruling that New Haven, Conn. discriminated against white firefighters in its promotional test, conservative hawks gloated with glee that the decision was smoking-gun proof that Supreme Court nominee Sonia Sotomayor was legally and racially unfit for the Court.

But if they think the decision will breathe new life into their campaign to dump Sotomayor, they will be disappointed. It will do no such thing. It is a grasp at straw's last ditch, a desperate gambit that will go absolutely nowhere in derailing Sotomayor's confirmation.

The High Courts decision to reverse the appellate courts ruling that the promotional tests were loaded against African-Americans could have been mailed in. During oral arguments months earlier, the five conservative justices pulled no punches in loudly proclaiming that they thought the white firefighters got a raw deal and that the tests were administered fair and square, and that there was no issue of discrimination.

The Court's predictable five to four, narrow decision is par for the course for any case that remotely touches on affirmative action issues. The ruling is more a reflection of the big five conservative judges politics, ideology, personal bias and opinion than of any hard and fast rule of law.

The court reversal was also no surprise from a legal standpoint. The Supreme Court traditionally reverses three quarters of the cases it reviews, and all are cases that come from other appellate courts. It's a ludicrous stretch to say that every appellate judge who's been reversed is legally and racially biased, a judicial activist, or, worse, incompetent. Yet, these are the labels that GOP conservatives have relentlessly tossed at Sotomayor.

The decision won't derail Sotomayor but it could pay a small dividend for conservative attack dogs in another way. It could make her cautious, wary, and determined to play it tight to the vest in her opinions and decisions on cases that deal with race, gender, age that will inevitably come before her on the High Court. The ploy of going after the jugular of court, presidential nominees and even presidents on the issue of race and especially affirmative action issues has worked magnificently for the past two decades.

The cry of reverse discrimination or reverse racism became a staple in the public vocabulary after the Bakke case ruling in 1978. In that decision, the Supreme Court virtually banned the use of quotas for minorities in hiring and education, under the guise of ending reverse discrimination. 
Since then the faintest hint of a tilt toward minorities in a corporate hiring program, or a university hiring or scholarship program has drawn instant howls of reverse discrimination and piles of lawsuits. The chill on affirmative action programs partly worked. Republican and Democratic presidents Ronald Reagan, George H.W. Bush and Bill Clinton vowed to end or modify affirmative action programs in government agencies. Much of the public firmly believed that minorities were getting unfair advantage in business and the professions, and that they were racist.

GOP conservatives bank on the fact that permanently slapping on Sotomayor the racist and judicial activist tags will punch the standard emotional hot buttons after her confirmation. In fact, harassing Sotomayor with the emotional labels has already paid off. In private meetings with moderate Democrat and conservative Republican senators, Sotomayor pulled back slighly from the reference she made to herself as a wise Latina in a 2001 speech. She called it a poor choice of words. She also announced that she had resigned from an all women's club.

These won't be the last bows that she'll be required to make to conservative orthodoxy before GOP senators and conservative hawks are through with her. She'll be under tremendous pressure to assure Senators that she'll play it strictly by the moderate and conservative playbook on any and all decisions that even remotely touch on race and class issues on the bench.

Sotomayor will be watched, and watched closely, for any sign of racial bias on the bench. Yet, Sotomayor's decisions and rulings have by all standards stood on firm legal footing. Her decisions on the Supreme Court will be the same, and there's no need for her to apologize or look over her shoulder when she rules. After all, the big five court conservatives have never had that bother when they routinely engage in their brand of judicial activism on the right.

Earl Ofari Hutchinson is an author and political analyst. His weekly radio show, The Hutchinson Report can be heard on weekly in Los Angeles on KTYM Radio 1460 AM and nationally on blogtalkradio

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