A FAILED CONVERSATION

THE BALTIMORE SUN

Near the end of Judge Sonia Sotomayor's confirmation hearings for a seat on the Supreme Court, the Senate Judiciary Committee's ranking Republican, Jeff Sessions of Alabama, announced to a reporter that he was "proud" that the Senate Republicans had taken up the challenge laid down by Attorney General Eric Holder earlier this year when in a speech at the Justice Department he said that America is a "nation of cowards" when it comes to talking about race. Mr. Sessions' cynical misappropriation of Mr. Holder's call for candid racial dialogue was just another in the long list of the calculated and deeply corrosive manipulations that characterized the discussion of race in the Judiciary Committee chambers.

Going into the hearings, the Senate Republicans knew, as did almost anyone who's examined Judge Sotomayor's opinions in cases from her 17 years on the bench, that she is no activist, no ideologue and no racial partisan. In fact, Judge Sotomayor is such a centrist that her record might well have given pause to liberals. For the Republicans, there were only two issues about which they could question Judge Sotomayor: her speeches in which she talked about the way race and gender contribute to how a judge sees the world and thus approaches the law, and her decision upholding a lower court's opinion in the New Haven firefighter case.

Her now-infamous "wise Latina" statement raised legitimate questions about Judge Sotomayor's approach to judging. But in the context of the full speeches she gave, Judge Sotomayor's remarks were an honest attempt to talk about how all judges are shaped by their backgrounds and must be conscious enough of this reality to guard against how these influences might skew their judicial view.

The firefighter case was problematic for the Republicans as well, because although the Supreme Court overturned the decision of the court on which Judge Sotomayor was a part, it had done so by announcing a new legal standard - one that Judge Sotomayor could not fairly have been expected to divine or impose as an appellate court judge when she heard the case. But no matter. The case involved the inflammatory issue of race, and combined with her "wise Latina" remark, the Republican committee members settled on a strategy that could at least arouse their base. And so, ignoring thousands of decisions in which Judge Sotomayor has participated, they undertook to paint the nominee as a dangerous racial partisan.

The atmospherics alone were astonishing. A panel of white, mostly Southern men (on the still all-white Judiciary Committee), using tones that were alternately scolding and condescending, sought to school the first Latina Supreme Court nominee on the dangers of racism and the importance of equal opportunity.

For many African-Americans and Latinos, the hearings were far from the kind of courageous and honest dialogue Attorney General Holder encouraged. The treatment of Judge Sotomayor served as confirmation of entrenched racism in our society - proof that no how matter accomplished, no matter how qualified, no matter how reasonable they have shown themselves to be, minorities will be viewed by some in positions of power and authority as untrustworthy, unintelligent and undeserving of respect.

There were moments that were almost too painful to watch, like Sen. Lindsay Graham, Republican of South Carolina, using the old cross-examination trick of pretending not to be able to find a copy of Judge Sotomayor's "wise Latina" speech in an attempt to coerce her into uttering the controversial words for the cameras. Then there was Sen. Tom Coburn's tortured, ahistorical reading of the history of the passage of the 14th Amendment as a debate about gun rights, and the Oklahoma Republican's channeling of Ricky Ricardo in another sequence, joking that the Latina judge might have some "'splainin' to do." And Mr. Sessions chided the judge that if she had just voted in the firefighters' case along with her colleague on the Second Circuit Court of Appeals who "is also of Puerto Rican ancestry," there wouldn't be all this trouble. In this sense, the hearings were a rejoinder to the election of Barack Obama as president.

It was a cowardly display, because Judge Sotomayor could not fully and forthrightly respond in kind. The Constitution requires that she obtain "the consent" of the Senate. The Republicans needed nothing from her. A job applicant can never speak with the candor, force or complexity of the interviewer. Moreover, precisely because of our troubled racial dynamics in this country, minority aspirants to positions of public trust know that they must first and foremost dispel the myth that they are all angry, aggrieved or vengeful on behalf of their race. This often requires that minority public figures provide bland responses to even blatant provocation. (President Obama's mastery of this skill helped him overcome the initial reticence of some white swing voters).

Meanwhile, right-wing Republican political commentator Patrick Buchanan spewed venomous racial tirades against Judge Sotomayor, even demanding at one point "where are the SAT scores?" of the accomplished nominee who graduated first in her class from Princeton and summa cum laude from Yale Law School.

Judge Sotomayor will likely be confirmed later this month. But what of the toxic environment created by the hearings? Yes, the Sotomayor hearings represent a retrenchment in our national racial dialogue. But we should remember that national conversations on race - good or bad - should be closely followed by local conversations in our cities, schools, places of worship and homes.

Perhaps some aspects of the hearings offer direction for future conversations. For example, it is important to talk about whether and how diversity on the bench makes a difference to judicial decision-making. The testimony of firefighters Frank Ricci and Ben Vargas shed no light on Judge Sotomayor's fitness for the court, but their story was compelling and should be recognized as an important part of our dialogue about how best to ameliorate racial disparities in public employment.

The Sotomayor hearings remind us that we must keep talking, choosing more productive and engaged models that enable us to converse respectfully and openly about one of our country's most complex and challenging issues.

Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and a civil rights lawyer. Her e-mail is sifill@law.umaryland.edu.

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