I knew that the Republicans were planning the stunt of having Frank Ricci testify at Sonia Sotomayor’s confirmation hearings. Ricci is, of course, not any kind of legal expert. But having him appear in person might help tug at the audience’s heart-strings and inspire a certain level of empathy of his situation. But Kate Klonick writes that beyond Ricci there’s going to be lots more affirmative action at the hearing:
In 2005, when Justices Samuel Alito and John Roberts were confirmed by the Senate, affirmative action seemed almost an after-thought. In Alito’s case, only two of his 33 witnesses in his hearings had obvious ties to affirmative action groups, one from each side of the aisle. For Roberts, Democrats called only two witnesses to speak to his record on civil rights.
In contrast, more than one-third of the witnesses on the Republican’s list for Judge Sonia Sotomayor’s confirmation hearing are lawyers and academics who’ve based their careers on opposing affirmative action, and activists who have become symbols of the anti-affirmative action movement. The conservative side of the debate over Sotomayor has revolved, so far, around her decision to uphold a lower court ruling in a reverse-discrimination case she heard while on the Second Circuit, Ricci v. DeStafano, and her comments about how her experiences as a Latina woman have shaped her judicial conclusions. With five out of fourteen anti-affirmative action advocates on the minority’s witness list, it’s clear that these focal points are not going away.
It would be one thing if Sotomayor had some kind of unusual record on affirmative action. But she doesn’t. What she did in the Ricci case, whether one likes it or not, was simply apply the existing precedent. Conservative judges didn’t like the existing precedent, and since there are now many more conservatives on the Supreme Court than there used to be, they overturned the precedent in a 5-4 vote. But it would have been very strange for a Circuit Court judge to decide on her own to overrule existing precedents in a way that sharply split the Supreme Court. But of course Sotomayor is a Latina woman, so now this unremarkable decision becomes the center of their argument.