Fact Check: Judge Sotomayor’s Real Record On Race

Editor’s Note: Ian Millhiser is joining ThinkProgress to blog on issues relating to the Supreme Court nomination (read his bio here). This is his first post on The Wonk Room.

SotomayorIt took them a full day to come up with it, but the right-wing thinks they have found a winning line of attack against President Obama’s nominee to the Supreme Court: claiming that Judge Sotomayor is a racist. Conservative columnist Stuart Taylor accused Judge Sotomayor of claiming that “white males . . . are inferior to all other groups in the qualities that make for a good jurist.” Former Congressman Tom Tancredo—who once said that immigrants threaten Western civilization—claims that Sotomayor “appears to be a racist.” And former House Speaker Newt Gingrich called Sotomayor a “racist” who “should withdraw” from consideration for the Supreme Court.

For all their stridency, however, attacks on Judge Sotomayor bear no resemblance to her record on race. In her much-maligned 2001 speech about being “a Latina voice on the bench,” Sotomayor explained in no uncertain terms that a judge must be constantly vigilant in ensuring that their decisions are never compromised by prejudice:

I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

Most importantly, however, Judge Sotomayor’s record shows that she is completely unbiased in deciding race-related cases. The most common kind of race discrimination case in the federal court system are Title VII employment discrimination cases, and Judge Sotomayor has published five majority opinions in Title VII race cases since she joined the Court of Appeals. Of these five decisions, only one—a sexual and racial harassment case called Cruz v. Coach Stores—was decided in the plaintiff’s favor.

But this does not mean that Judge Sotomayor is a right-wing zealot who tosses minority victims of race discrimination out of court anymore than her now-famous vote in Ricci v. DeStefano proves that she bears some kind of animus against white people. In Ricci, the City of New Haven administered a test to determine which of its firefighters would be promoted to become Lieutenants and Captains. When all but one of the highest scoring applicants were white, the City decided not to count the test results because federal law prohibits hiring practices which have a “disparate impact” on people of a particular race.

Many of the plaintiffs in Ricci have very sympathetic stories to tell, but Judge Sotomayor did not let this fact influence her duty as a judge. Under binding Second Circuit precedents that Judge Sotomayor is required to follow, the City of New Haven’s actions are not illegal, so Judge Sotomayor ruled against the white firefighters. Just as when racial minorities claimed employment discrimination in her court, Sotomayor followed the law, and she tossed out a claim that the law would not allow to win.

Now, the same voices who scream that Judge Sotomayor is a “liberal judicial activist” want to attack her for her decision in Ricci, but they cannot have it both ways. It would be wrong for Judge Sotomayor to give white plaintiffs special treatment not allowed by the law—and it is wrong for conservatives to attack her for refusing to give it to them.