Is Judge Sotomayor Living In the Past?

The Supreme Court's decision in the New Haven Firefighters' case shows that the Court--and the nation--are at a turning point in racial preferences. This could not come at a worse time for President Obama's nominee, as Judge Sotomayor apparently holds a view of race that the country rejects and the Constitution doesn't allow.

On June 29, the Supreme Court decided Ricci v. DeStefano. In Ricci, white and Hispanic New Haven firefighters sued when their test scores for promotion were discarded when the city decided that not enough black test-takers received high scores. The Court held that it violates Title VII of the Civil Rights Act for a city to throw out test scores for promotions simply because of the racial makeup of the results.

More important, however, is Justice Scalia's concurring opinion. The firefighters argued that the city's actions violated both Title VII and the Fourteenth Amendment of the Constitution. Courts only make constitutional decisions when there's no other way to decide a case. Since the Title VII issue resolved this case, the Court didn't tackle the constitutional question.

Justice Scalia, however, said that the day is coming when the Court must answer whether the Constitution forbids laws that divide people on the basis of race. He makes the point that since the law forbids governments (like cities) from discriminating based on race, then government cannot pass laws like Title VII requiring employers to consider race in making employment decisions. Making race a factor in decisions is discrimination.

This is like the Voting Rights Act case decided last week, NAMUDNO v. Holder, where the Court looked at the federal government's supervising parts of the South on their voting laws. The Court there, too, suggested that it needs to consider whether harsh and burdensome laws on racial issues are still necessary.

Such laws are a thing of the past. The Civil Rights Act was signed in 1964, and the Voting Rights Act passed in 1965. Those were days of militant racism and the systematic oppression of blacks and other minorities.

Today things couldn't be more different. A black man sits in the Oval Office, and minorities are governors, senators, top Cabinet officials, and Supreme Court justices. As Justice Scalia writes, the Court needs to consider whether all these laws in which government puts its thumb on one side of the scales of justice because of race are now unconstitutional. In other words, the Court needs to recognize that the time has arrived to judge people on the content of their character, not the color of their skin.

It's a big question as to where Judge Sonia Sotomayor stands on these things. She went the wrong way in Ricci, and today the Supreme Court reversed her decision. She has described herself as "an affirmative action baby." She credits racial preferences with her success in getting into Princeton and Yale to launch her career.

Does Judge Sotomayor realize that America is past all that? Does she realize that a new day has dawned, or does she embrace a victimhood mindset that minorities can't get ahead in life unless government tilts the scales in their favor?

The Ricci case was a 5-4 decision, and so was last week's NAMUDNO decision. Clearly, the Court is split on this issue and one vote makes all the difference.

The Senate needs to decide whether Sonia Sotomayor will have one vote on the Supreme Court when these important questions are finally decided.

Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.