Originally issued June 2009.

With the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, the cyberspace blogs and the airways have been filled with rhetoric from both supporters and opponents. Supporters see another small step toward racial justice in the United States. Opponents see the nomination as a threat to their values. We hear words like affirmative action. We hear cries about judicial activism. Underneath it all are currents of racism and white privilege.

The argument about the nomination of Judge Sotomayor is about race because, in part, it is about affirmative action—nominating a qualified woman of color to the highest court in the land. In a “racialized society,” where white privilege still dominates and is rampant, it behooves us as Christians to apply the principles of human dignity and respect, of the common good and solidarity, and of a preferential option for those who have been oppressed (for lack of access), silenced (by non-representation), and otherwise marginalized (on account of their persona non grata status in reference to privilege). The argument is also about white privilege because the default position in public conversation and debate in the United States is, unapologetically as much as unrecognized, a default to white and male.

When President Barack Obama announced the nomination of Sonia Sotomayor to the Supreme Court, in addition to her qualifications, he spoke of empathy which, in a few days, was challenged as a code word for judicial activism by Karl Rove in the Wall Street Journal. Rush Limbaugh followed by calling Sotomayor a racist, later saying that he might be able to support her.
Some of the key questions in need of reflection –and which President Obama has called the nation to engage—include: What is racism and how is it influencing the discussion over this nomination? Pax Christi USA defines racism as race prejudice plus the sanctioned misuse of institutional and systemic power. In the United States, racism is disguised by the invisible working of white privilege –a privilege most white folk exercise quite unaware, but evident in the commentary spewed against Judge Sotomayor.

In a similar vein, Charles Blow, writing in the New York Times, captures this definition of racism when he describes a continuum of racism (http://www.nytimes.com/2009/05/30/opinion/30blow.html). Racial bias is at one end of this spectrum; most people have biases (leaning toward positive or negative attitudes about others) when it comes to race. Bias that is consciously expressed is prejudice. At the other end of the spectrum “are deliberate acts of racial discrimination based on those prejudices.” Obviously, Judge Sotomayor’s comments about a white man and a Latina woman, which have been taken out of context, do not constitute racism. Using the power structure of systemic and institutionalized racism to block her nomination would be an act of overt racial discrimination, contrary to the law of the land and wrong.

Michail Lyubansky (http://www.opednews.com/articles/Accusations-of-Racism-In-by-Mikhail-Lyubansky-090528-28.html) said that “racism is part of the story.” The nomination has resurfaced the debates over affirmative action, e.g., race-conscious remedies for past discrimination. Several school admissions’ decisions related to balancing student enrollment indicate that the current Roberts’ Supreme Court has been rolling back the advances for students of color that have been achieved by affirmative action.

In addition to racism, white privilege is at issue here. If Judge Sotomayor, a woman of color, were to be confirmed and if she were to apply her experience to balancing legal principles, those now speaking out against her and even those who are likely supporters (mostly white folk, mostly men) express a fear (perhaps termed a “concern”) that their privilege will be undermined because Judge Sotomayor suggested that a Latina may conclude a decision with greater wisdom than that by a white man. This fear may appear a big assumption. But no one complained when Judge Samuel Alito said that his Italian-American heritage and immigrant family past would influence his decision-making process on the Court. Are the complaints against Judge Sotomayor unearthing something more insidious about the intolerance of members of the dominant community? Are these folks threatened by the prospect of a woman of color whose record is not easily pinned to one camp or another and who brings a perspective to the bench that promises greater judicial balance than heretofore present?

The argument is, finally, about the power of the Court and the exercise of power by the individual justices themselves. Conservatives regularly speak of their disdain for “activist judges.” Judicial activists do not adhere to a strict construction theory of constitutional interpretation. They look to the Constitution; however, they also look at the impact of their interpretation of the Constitution on people. This consideration is evident in Brown v. Board of Education (1954). The precedent of Plessy v. Ferguson (1896) held that separate but equal accommodations (like public transportation and education) were the law of the land. Stare decisis is the legal principle that cases before the court should be decided on what has been held in previous cases. If the 1954 Warren Court had held strictly to stare decisis, they would have upheld Plessy v. Ferguson. In fact, when he was a law clerk, former Chief Justice William Rehnquist argued for keeping Plessy’s ”separate but equal doctrine” in place. In what should be paradigmatic –stare decisis—for subsequent cases brought before the Supreme Court, the Warren Court, in a unanimous 9-0 decision, examined the impact that continued segregation would have on African-American school children. Citing sociological and psychological evidence, the court ordered an end to segregated education in the United States.

Parenthetically, we might draw an analogy between interpretation of the Bible and the Constitution. Both are foundational documents—one for religion and the other for our nation. Biblical fundamentalists and strict constitutional constructionists have much in common, believing that what has been written is what is meant and is not open to interpretation. Alternately, people who believe that the Bible and the Constitution are not cast in stone and that they are living documents always in need of interpretation in the contemporary world believe that the principles contained therein have to be interpreted in light of new situations, new evidence, and new developments.
Those who oppose Judge Sotomayor’s nomination on the basis of her “judicial activism,” evident in her written decisions and public statements, fear that she will bring her life experience to bear on her decision-making. Many people do not recognize experience as influencing decisions as problematic. Moreover, it would be difficult to find anyone who does not bring life experience to bear on decision-making. We need to be mindful of the disclaimer, “Please pardon my reference to my personal experience. It is the only experience I have ever had.”

Further, as Catholic Christians, we need to bring the Gospel to bear on evaluating political situations. In 2008, Catholic Charities, citing the inequities between economics and persons of color, issued a brief called Poverty and Racism: Overlapping Threats to the Common Good. Addressing their concerns, they wrote:

We believe that the United States, despite the undeniable changes in racism’s manifestations, still remains a “racialized society,” that is, “a society wherein race matters profoundly for differences in life experiences, life opportunities, and social relationships.” We are a nation “that allocates differential economic, political, social, and even psychological rewards to groups along racial lines; lines that are socially constructed.”27 At its core, racism is a system of racially conferred – and denied – privilege, advantage, benefits, and status. This inequality of status and benefit endures today. Thus, “racism today remains what it has always been: a defense of racial privilege.”

Racism entails more than conscious ill-will, more than deliberate acts of avoidance, exclusion, malice, and violence perpetrated by individuals. We acknowledge that members of any racial group can – and, in fact, do – act unjustly toward those they consider racially “different.” But such individual acts cannot alter the fact that in the United States, one racial group is socially advantaged, and the others endure social stigma. Racism describes the reality of unearned advantage, conferred dominance, and invisible privilege enjoyed by white Americans, to the detriment, burden, and disadvantage of people of color. This network of racially conferred advantages and benefits has been termed “white privilege.” (http://www.catholiccharitiesusa.org/NetCommunity/Document.Doc?id=614, at 8, emphasis added)

Along with Catholic Charities, it has not been uncommon for national professional boards of directors to take steps to undercut white privilege. Realizing that women and people of color will have an extremely difficult time making their way through the ranks to leadership positions on boards, these boards, often with vociferous opposition, have created methods for seating women and people of color. This deliberate and intentional act helps remediate past wrongs and charts a new future course. Catholic Charities endorses “Progressive affirmative Action in Education and Employment” as one strategy toward “creating just and inclusive society” (At 16).

It is fair to conclude that the debate about Judge Sotomayor is, in fact, about race, power, and white privilege. There is ample evidence that people of different backgrounds do not (necessarily) embrace the same approaches to decision-making in life, let alone in legal settings. Our ingrained mental constructs cause us not to question what perspective white male justices on the Court bring to the bench. After all, who has been sitting on the bench for all but the last forty-two years (and then only with the exceptions of Thurgood Marshall [1967-1991], Sandra Day O’Connor [1981-2005], Clarence Thomas [1991-present], and Ruth Bader Ginsburg [1993-present])? Nevertheless, many are quick to question, when a person of color is nominated, whether she or he will bring life experience to bear on decision- making. And with this nomination President Obama and the Senate Committee have exercised a strategy to both recognize the academic-professional-personal achievements of this Latina and bring a presently unrepresented voice to the Court.

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