The US Senate confirmation hearings being held this week on the nomination of Federal Appellate Judge Sonia Sotomayor to the US Supreme Court has focused the nation’s attention on the issue of race on a multitude of levels. On one level is Sotomayor’s historic position as the first Latina to be nominated to the US Supreme Court. On another level is her decision as an appellate judge to throw out a New Haven firefighter’s promotional test because minorities failed to qualify.
After viewing the first two days of the hearings, columnist Ruben Navarette Jr. wrote of his “weird dream that seven conservative white males were desperate for reassurances that a Latina vying for a seat on the Supreme Court would not use the law to mistreat people who look like them.” He expressed amazement that the seven white Republicans on the Senate Judiciary Panel have expressed fears that Sotomayor “might use her power as a justice to disenfranchise white males.”
Right-wing Republicans like Rush Limbaugh and Newt Gingrich were quick to label Sotomayor a “racist” because of a speech she gave in 2001 in a Berkeley legal conference on race and gender where she said:.
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life. ... Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into20areas with which I am unfamiliar. I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
In that speech, Sotomayor explained that the experiences or backgrounds of white males also affect how they adjudicate, specifically with regard to "sex and race discrimination" cases. She also explained that, like any judge, she has to work to overcome her own personal assumptions and biases to render a fair decision.
What may reassure these insecure senate Republicans is her acknowledgment in that same speech that “we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable” citing the nine white men in the US Supreme Court who threw out racial segregation in the landmark 1954 Brown v. Board of Education.
They also forget that at his Senate confirmation hearing in 2006, Supreme Court Justice Samuel Alito declared that his experience as the son of Italian immigrants and his knowledge of discrimination provided him with “empathy” that offers insight into such cases.
After Sotomayor completes her testimony, Senate Republicans will trot out the white firemen of New Haven, Connecticut as their prime witnesses against Sotomayor because of her appellate ruling (along with two white colleagues) in the case of Ricci v. DeStefano to uphold the City of New Haven’s decision to discard a promotional mostly multiple choice test for firemen that resulted in 17 whites and only 1 minority (a Hispanic) being promoted to fire captain and fire lieutenant in a city that is 60% minority. The New Haven Fire Department currently has 21 fire captains only one of which is a minority.
The issue in Ricci involves the proper interpretat ion of Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin and specifically prohibits the use of discriminatory employment tests and selection procedures. Only one of the Department’s 21 fire captains is African-American.
San Francisco had a similar problem in 1971 when a Title VII lawsuit was filed in federal court by Robert Gnaizda challenging the written test for firefighters that was administered in 1970 where none of the 250 applicants who passed the test was African-American. At that time, the San Francisco Fire Department had only three African-Americans out of 1700 firefighters.
In his July 10, 2009 article reflecting on that case, Gnaizda recalled cross-examining the UC Berkeley professor author of the “no blacks passed” written tests where “he acknowledged that the 10 most crucial qualifications to be a successful firefighter were not part of the test.”
“The expert then reluctantly admitted that his "flawless" test might prevent the strongest and most agile applicants from becoming firefighters even though he believed that physical strength might be the most significant qualification for a firefighter” Gnaizda wrote.
The district court judge hearing the case, William Sweigert, then “threw out the test and ordered a quota”. This resulted in the top 60 African-Americans who took the written test being accepted as firefighters.
“Two years later,” Gnaizda wrote, “the white firefighter hierarchy evaluated all of the new firefighters. Their findings were, in effect, that the written test was meaningless and possibly counterproductive. Those who scored below the 70 percent passing grade (all black) did as well as those who scored between 70 and 90 percent (all white), and slightly better than those who scored the highest,=2 0over 90 percent.”
As a result of the lawsuit filed by Gnaizda, there are now 75 highly-qualified full-time Filipino Americans in the San Francisco Fire Department.
The San Francisco case showed that written tests alone cannot be trusted. The New York Times reported that Sonia Sotomayor did so poorly on her SATs that she was wholly unqualified for admission to Princeton but was able to enter Princeton as an “affirmative action baby” just like Supreme Court Justice Clarence Thomas did. As the inquiring senators know, four years later, Sotomayor graduated from Princeton summa cum laude (highest honors) and became a well-respected federal appeals court judge.
Perhaps the Republicans who supported Sen. John McCain for president may recall that he finished in the bottom 1 percentile (5th from last out of 750) in his Annapolis Naval Academy graduation class. They must have believed that he was qualified to be pres ident despite his poor showing in written tests.