The undoing of Sonia Sotomayor

Could the unemployment rate sink the Sotomayor nomination?

Senator Dianne Feinstein, of all people, said today during Senate confirmation hearings for Judge Sonia Sotomayor that calls have been coming into her offices in California, of all places, complaining that the woman nominated to be the first Hispanic justice on the U.S. Supreme Court is an activist judge.

For just a moment, clear your mind completely and think like a Californian.

The unemployment rate in this state is north of ten percent. The state has a budget deficit so large the Hubble Telescope can't see the end of it. After thirty years of loose immigration policies, California's public schools are educating millions of children who came here illegally from Mexico, or who were born to parents who came here illegally from Mexico. The state also subsidizes emergency medical care, affordable housing, child care, pre-natal care, and various other services required by millions of people who wouldn't be in the state of California at all if they or their family members hadn't broken the law to come here.

Adding insult to injury, thirty years of liberal rhetoric has demonized white males as privileged, undeserving beneficiaries of an Anglo-Saxon patriarchal society, while affirmative action policies that favor women and selected minorities are held up in the media as the morally superior way to hire and promote.

Now President Barack Obama -- who said today "we will probably continue to see unemployment tick up for several months" -- has nominated a Hispanic woman for a lifetime appointment to the U.S. Supreme Court, where she is likely to be the fifth vote in favor of continuing to uphold affirmative action policies.

The Senate Democrats have the votes to confirm Judge Sotomayor, and they could choose to ignore poll numbers that say 44% of U.S. voters don't want this nominee on the Supreme Court.

But a poll like that reflects an intense political force that will not dissipate in a week.

Did you know that the U.S. Constitution has never been amended to ban racial discrimination or gender discrimination?

It's true.

Laws prohibiting discrimination are secured in the Constitution by an interpretation of due process and equal protection that was pulled out of the air in 1954 when the Supreme Court decided the landmark case of Brown v. Board of Education. It's the nuance of that decision, and similar decisions since, that allows affirmative action to exist. If the U.S. Constitution was amended to prohibit discrimination on the basis of race or gender, all affirmative action policies would be unconstitutional and would have to be abolished.

Judge Sotomayor's confirmation might be enough to get it done.


Copyright 2009

Editor's note: For more detail on the history of the unsuccessful effort to ban racial discrimination, read the appendix to The 37th Amendment, an essay titled "How the First Amendment Came to Protect Topless Dancing: A history of the incorporation of the Bill of Rights into the Fourteenth Amendment, why it's a problem, and how to fix it."

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