Proving that no conservative can say something so wrong that they can’t later be published in the Wall Street Journal, today’s WSJ features an op-ed by Shelby Steele, author of A Bound Man: Why We Are Excited About Obama and Why He Can’t Win. In his op-ed, Steele repeats the tired right-wing claim that any minority named to a position of prominence must owe their success to the color of their skin:
What is most notable about the Sotomayor nomination is its almost perfect predictability. Somehow we all simply know — like it or not — that Hispanics are now overdue for the gravitas of high office. And our new post-racialist president is especially attuned to this chance to have a “first” under his belt, not to mention the chance to further secure the Hispanic vote. . . .
The Sotomayor nomination commits the cardinal sin of identity politics: It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit.
Ironically, Steele’s claim that Sotomayor lacks the “individual merit” necessary to succeed on her own was published the same day as an interview with former Princeton University President William Bowen, who describes Sotomayor as a “woman of enormous ability” who “was going to succeed and going to thrive wherever she was, in any setting.” Moreover, his claim that a successful woman of color must owe their position to racial preferences is far from the most troubling aspect of Steele’s op-ed. Indeed, buried deep within Steele’s piece is a startling window in to the right-wing’s anti-civil rights agenda.
One of the centerpieces of federal civil rights law is the ban on disparate impact discrimination. In 1964, Congress passed a law forbidding race discrimination in hiring, but it soon became very clear that racist employers rarely leave a paper trial proving that a job applicant was turned down because of their race. The ban on disparate impact discrimination was a response to this reality, intended to “smoke out hidden bigotry” by forcing employers to justify practices that have an adverse impact on minorities.
Steele, however, sees a different purpose to this ban; he claims that the very notion of disparate impact is “a concept that invariably makes whites accountable for minority mediocrity.” But Steele is wrong. No law requires employers to prefer mediocre minorities over qualified whites. To the contrary, federal law specifically permits employers to use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job. Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.
So Steele is not telling the truth about disparate impact, and he may be laying the groundwork for something much worse. In 1989, the Supreme Court in Wards Cove Packing v. Antonio significantly weakened the ban on disparate impact discrimination. Congress responded almost immediately by overturning Wards Cove with the Civil Rights Act of 1991. Right-wing justices tried their best to roll back civil rights law, but they were rebuffed by elected representatives.
Since Wards Cove, Congress has gotten much more progressive, but the Supreme Court has lurched to the right. In other words, the time is ripe for another conflict between Congress and the Court regarding whether civil rights law can continue to smoke out clandestine bigotry in hiring. Should such a conflict arise, Steele’s bizarre attack on the concept of disparate impact can only be read as an attempt to place a thumb on the scale in favor of the right-wing judiciary.