Despite a week of race-baiting assaults by conservatives on the Senate Judiciary Committee, Judge Sotomayor emerged more-or-less unscathed from her confirmation hearings — even picking up several Republican votes in the immediate aftermath. For all of their claims that Sotomayor thumbed her nose at white firefighters like Frank Ricci, the only thing to emerge from Sotomayor’s hearing is that she follows the law — as she did in the Ricci case — even when that law isn’t particularly popular.
Yet, even as the American people warmed to Sotomayor last week, the fact remains that her court’s decision in Ricci is unpopular. Conservatives failed to convince the country that Sotomayor should have ignored a binding precedent in Ricci simply because they don’t like that precedent, but the tale of a dyslexic firefighter studying hard to earn a promotion resonated with many Americans. So while Ricci’s story won’t hurt Sotomayor, many on the right — including the Judiciary Committee’s Ranking Member and much of the Supreme Court — are taking the long view, convinced that they can use this story to fulfill their decades-long quest to dismantle civil rights law.
This is why the recent, unjustified arrest of Professor Henry Louis Gates is such a huge blow to the right-wing agenda. The right’s narative on Ricci fails if people simply believe that Frank Ricci was mistreated. To succeed, the right must convince the country that Ricci’s tale is part of a pattern, that white men are routinely left with the short end of the stick, and that federal civil rights law is responsible for such perceived injustices. The centerpiece of their narative is a belief that racism no longer exists, so laws designed to correct racism do nothing more than take potshots at white folks.
Professor Gates’ story gives this narative the lie. White Americans — especially affulent white Americans — hear Gates’ story and they can’t imagine being arrested for breaking into their own home after giving police an ID card proving that they live there. Such an arrest is so beyond the experience of American white men that we are forced to wonder whether a well-to-do, internationally-respected scholar could possibly have been treated the same way if he happened to be white.
Once one accepts that racism still plagues this country, the right-wing attack on civil rights law breaks down. Contrary to the right’s claims, nothing in federal law requires employers to prefer mediocre minorities over qualified whites — indeed, such a law would unquestionably violate a long line of Supreme Court precedents interpreting the Constitution’s guarentee of Equal Protection.
What federal law does forbid is racism which pretends to be something else, such as a hiring test designed to disadvantage minority applicants or a screening process that “coincidentally” preferences applicants from predominantly white schools or communities. Under existing law, employers may 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 civil rights law stands for the bizarre idea that people should actually be hired because of their fitness for a job, a principle which is so eminently sensible that it can only be attacked by selling America on the lie that racism no longer exists. Professor Gates’ arrest reveals that lie for what it is, the latest interation of the right’s discomfort with civil rights.