Academic

Johnson on the Nomination and Confirmation of Sonia Sotomayor

By Lawrence Solum

Kevin R. Johnson (University of California, Davis - School of Law) has posted An Essay on the Nomination and Confirmation of the First Latina Justice on the U.S. Supreme Court: The 'High-Tech Lynching' of a 'Wise Latina'? on SSRN. Here is the abstract:

This Essay analyzes the broader lessons of race, gender, and identity that can be gleaned from the nomination and confirmation of Justice Sonia Sotomayor. It compares and contrasts the nominations of Justices Sotomayor and Thurgood Marshall, which are remarkably similar in important respects, and shows how little, in certain ways, the nation has progressed over more than four decades with respect to the color line in American social life. As we shall see, the two confirmations were very different substantively, as well as in tone from that of the first woman to serve on the Court, Justice Sandra Day O?Connor.

Part I of this Essay offers a glimpse at the experiences of Justice Thurgood Marshall, who was the first African American nominated and confirmed to the U.S. Supreme Court. Part II considers the lessons from the more recent nomination and confirmation of Justice Sotomayor. Over forty years later, she unfortunately was treated in many of the same harsh and unfair, if not outright racist, ways as Justice Marshall, including the grossly exaggerated claim that she was some kind of ?judicial activist,? which has become code for liberal positions on social wedge issues, dissection of her speeches, distortion of her civil rights affiliations, and attempts to paint her as nothing less than anti-white. And, a sign of the nation?s lack of racial progress, she received one less vote in favor of confirmation than Thurgood Marshall did.

During his tense confirmation hearings in 1991, Justice Clarence Thomas, the second African American on the Supreme Court, famously declared that the Senate Judiciary Committee had subjected him to nothing less than a ?high-tech lynching,? a controversial statement in light of the politics and circumstances of that confirmation battle. Whether or not one agrees with Justice Thomas on the merits, it is worth acknowledging that people of color being considered for the federal bench - and other positions in the United States, such as on law faculties and administrators - often feel subjected to qualitatively different kinds of inquiries and attacks - such as that one is anti-white - than white candidates, which helps explain Justice Thomas?s outrage.

In my estimation, the confirmations of Justices Marshall and Sotomayor might more aptly be characterized as a ?high-tech lynching? than that of Justice Thomas - confirmations in which both effectively were required to defeat the unjustified presumption that, as people of color committed to civil rights, they were anti-white. In the end, people of color face an entirely different set of assumptions, presumptions, and barriers to assuming leadership positions, whether it is Barack Obama becoming President of the United States or Sonia Sotomayor getting confirmed to the U.S. Supreme Court. There are many other examples as well, including Thurgood Marshall.

Despite the success of President Obama and Justice Sotomayor, the idea of a level-playing field is but a far-away dream for people of color in the United States. We should not forget this fundamental fact as the nation engages in massive self-congratulations over two momentous racial achievements in the last year, with some even declaring that racism is dead in America.

Moreover, the Sotomayor confirmation process specifically reveals the continuing suspicion of, and at times antipathy, for Latina/os in the modern United States. Race and gender proved to be an incendiary mix and resulted in Senate confirmation hearings that differed dramatically in tone and substance from those of the first two women on the Supreme Court. Indeed, the challenge to Sonia Sotomayor?s judicial temperament and attacks on Latina/o civil rights groups arguably have little to do in reality about Justice Sotomayor and much to do about the perceptions of Latina/os in American society.

Full post as published by Legal Theory Blog on August 28, 2009 (boomark / email).