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The Declining Utility of the Politics of Racial Resentment

By Jack M. Balkin

I was speaking with a colleague today about the various rhetorical attacks now being levied on Judge Sotomayor-- equating the idea of empathy for those less fortunate with prejudice, and offering Judge Sotomayor's background as a reason to think that she could not be an impartial jurist (as opposed to persons with backgrounds like those of Chief Justice Roberts and Justice Alito, for example). Both of these ideas come from the mouth of that paragon of judicial probity, Jeff Sessions, Senator from Alabama. It is a new and improved way to play the race card, to seek to imbue issues of judging, impartiality and fairness with decidedly racial overtones. Perhaps a decade or fifteen years ago I might have been worried about its force. I am no longer. It is true that the sort of attack we see Senator Sessions making might resonate with a certain part of the population, and especially parts of the often celebrated Republican base. But the percentage of Americans who are likely to be moved by these thinly coded appeals to race has shrunk over the years, and it continues to shrink with each passing day. It is an update of the politics of racial resentment of the 1980s and 1990s in a country that is some twenty years past those debates.

To put it another way, Jeff Sessions can fulminate all he wants, but how many Americans are moved by his anger? Rush Limbaugh can call Judge Sotomayor a racist and a bigot all he wants, but how many Americans take Limbaugh seriously? And how many instead see these charges as saying more about Sessions and Limbaugh than about Judge Sotomayor?

The racial politics of Lee Atwater and his successors has by now long worn out its welcome. We see Senator Sessions engaging in Atwater version 6.0. Like many updates, the old software worked far better.

We should let Sessions rant and rave, but not be much worried about him anymore. We should coolly ignore the newest provocations, much as Judge Sotomayor did today. Sessions can appeal to his base all day long. But playing the politics of resentment to a smaller and smaller base is a loser's strategy. Let him play it and lose.

Full post as published by Balkinization on July 14, 2009 (boomark / email).