Speaking on C-SPAN’s Washington Journal, Pat Buchanan claimed that Judge Sotomayor believes “white males…can be discriminated against if its for the good goal of advancing people of color,” adding that GOP Senators should “stand up for the white working class like Frank Ricci” by voting against Sotomayor. Watch it:
Buchanan’s caricature of Judge Sotomayor as the enemy of white men will certainly meet the approval of conservative hatemongers like Rush Limbaugh and Tom Tancredo, but it has no basis in reality. As a study by Supreme Court überlitigator Tom Goldstein found, “Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.” Hardly the sign of a judge eager to twist the law to benefit minorities. Moreover, Judge Sotomayor’s decisions favoring racial minorities’ claims of discrimination are well within the legal mainstream. Of her ten decisions upholding a claim of race discrimination, nine have been unanimous and seven have been unanimous and have been joined by at least one Republican appointee.
Buchanan also misrepresents the facts of the now-famous Ricci case when he claims that Judge Sotomayor allowed discrimination against white males. In truth, Judge Sotomayor did nothing more than follow the law when she ruled against Frank Ricci.
In Ricci, the city of New Haven decided not to certify the results of a firefighter’s promotion test after virtually all of the minorities who took the test scored too low to be eligible for promotion. As Stanford Law Professor Richard Thompson Ford explains, however, federal civil rights law “requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional.” In other words, if the New Haven test inadvertently screened out minority applicants for reasons unrelated to their fitness for promotion, the test violates the law.
New Haven’s decision to toss out test results after a promotion test was administered is not unprecedented. Indeed, in the 1984 case Bushey v. New York State Civil Service Commission—decided eight years before Sotomayor became a judge—the Second Circuit considered a nearly identical case. Just like in Ricci, in Bushey white applicants significantly outperformed minority applicants on a promotion test, and the employer in Bushey responded by adjusting minority scores upward to render more non-whites eligible for promotion. The court upheld this rescoring of minority applicants, explaining that employers are allowed to “voluntarily compl[y]” with civil rights law by reconsidering tests that have an adverse impact on minorities.
Because Bushey has never been overruled, it is considered a binding precedent in the Second Circuit, and Judge Sotomayor was required to follow it when her panel was called upon to decide Ricci. To do otherwise would mean ignoring the law in order to benefit a sympathetic plaintiff—exactly the kind of “judicial activism” Buchanan accuses progressive judges of engaging in.
Pat Buchanan can’t have it both ways. He can’t expect Judge Sotomayor to apply one set of laws to minorities; and another, friendlier set of laws to sympathetic white people—and he can’t accuse Judge Sotomayor of activism when she refuses to give white people special treatment.