Since 1971, federal law has prohibited both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications. Yet, in an interview with Fox News, Senator Jeff Sessions (R-AL) suggests that Judge Sotomayor may be unfit for the bench because she once sat on the board of a civil rights organization that filed suits under this law:
Alabama Sen. Jeff Sessions told FOX News he assumes Sotomayor understood and supported the stance of a group called the Puerto Rican Legal Defense and Education Fund [PRLDEF] she advised in the 1980s that brought several race discrimination lawsuits for minorities who challenged jobs or promotions given to white employees.
“She participated in an organization or lawsuit, clearly participating actively as a supervisor of lawyers who actually litigated the cases, that is important,” said Sessions, the senior Republican on the Judiciary Committee evaluating Sotomayor’s nomination.
“There is no evidence (Sotomayor) objected the positions they were taking. The question is really — is this a philosophy that she has allowed to influence her decision making process on the bench?” he said.
It’s difficult to count how many things are wrong with Sessions’ statement. For starters, as the New York Times reported last week, Sotomayor played little if any role in shaping on PRLDEF’s stances in litigation. Indeed, the only example the NYT could find of a case that Sotomayor advised PRLDEF on was a single amicus brief challenging a law authorizing “preventative detention based upon a finding of undefined potential danger to the community” that was eventually struck down as unconstitutional.
Moreover, even if Sotomayor was involved in shaping PRLDEF’s litigation strategy on employment discrimination, it’s not clear why her role in enforcing a landmark civil rights law in any way undermines her fitness for the Supreme Court. As the Wonk Room previously explained, conservatives have jumped on the sympathetic case of New Haven firefighter Frank Ricci to claim that the ban on hidden race discrimination is “a concept that invariably makes whites accountable for minority mediocrity.” But this claim is flatly false. 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.
Indeed, Sessions’ decision to embrace the right-wing attack on civil rights law says a whole lot more about Jeff Sessions than it does about Sonia Sotomayor. In 1986, Sessions’ nomination to the federal bench was rejected by the Senate because of Sessions’ deep seeded hostility to the very notion of civil rights:
- As a federal prosecutor, Sessions conducted a tenuous criminal investigation into voting rights advocates that registered African-Americans to vote–an investigation that culminated in an unsuccessful prosecution against a former aide to Dr. Martin Luther King, Jr.
- Sesssions also referred to the NAACP and the ACLU as “un-American” and “Communist-inspired” organizations that “forced civil rights down the throats of people.” When confronted about these statements at his confirmation hearing, Sessions reluctantly conceded that they “probably w[ere] wrong.” Sessions, however, stood by his previous statement that the Voting Rights Act is a “piece of intrusive legislation.”
- An African-American attorney who once worked for Sessions testified that Sessions said that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers.” The same attorney also recalled being called “boy” by Sessions and being told to “be careful what you say to white folks” after Sessions overheard him chastising a white secretary.
So Sessions’ decision to embrace a new attack on civil rights law is unfortunate, but hardly surprising. America has changed a lot since 1986, but Jefferson Beauregard Sessions III has stayed exactly the same.