Affirmative Action: Helping or Hindering a Colorblind America?

Recently, Judge Sonia Sotomayor’s name has graced dozens of headlines, rolled off the tongues of liberal and conservative political commentators alike, and been passed around the Internet like a viral video. Why the hubbub about this Puerto Rican justice from the Bronx? To begin with, President Obama nominated Sotomayor, a federal appellate judge, to the United States Supreme Court in May. Then, on June 29, 2009, the Supreme Court overruled a decision made by a district court and upheld by the 2^nd Circuit Court—on which Sotomayor sits—on the controversial Ricci v. DeStefano case.

In case you haven’t been keeping up with the news lately, the Ricci v. DeStefano case originated in 2003, when the New Haven Fire Department issued written and oral exams to determine which of its firefighters were eligible for promotion to the positions of Lieutenant and Captain. It is the policy of the city that only the three top performers on each test are considered for promotion. Herein lies the problem: when the scores were returned, it was found that no African-Americans and only a few Hispanics would be eligible for the promotion. Of course, New Haven’s Civil Service Board was uncomfortable with the results, undoubtedly afraid that, should the tests be considered valid, the city would be charged with discriminating against minorities and violating portions of the Civil Rights Act. The Board held a series of hearings on the matter in early 2004, but could not reach a decision; thus, the test was dismissed and no promotions were granted.

Naturally, this decision—or lack of one—outraged New Haven firefighters who had performed well on the test. Frank Ricci and sixteen other firefighters, including one Hispanic, filed a lawsuit against the city and the people involved in the decision, including New Haven mayor John DeStefano. Being denied promotions because they were not members of a minority, the plaintiffs argued, is the very definition of discrimination on the basis of race. However, the district court hearing the case ruled against Ricci, and the dispute was then passed to the 2^nd Circuit Court, on which Judge Sotomayor sat. The 2^nd Circuit Court upheld the district court’s ruling but, oddly enough, did not issue an opinion delving into the Constitutional issues at play in the lawsuit.

Still, the firefighters were not satisfied with the courts’ decision; in early 2009, the case was brought before the U.S. Supreme Court, which overruled the 2^nd Circuit Court’s decision on June 29^th, 2009, in a 5-4 decision. The Supreme Court concluded that, in throwing out the test results, New Haven was guilty of violating a portion of the Civil Rights Act, and that the test did not show the strong bias needed to justify retesting all applicants. As with all controversial decisions, some are applauding the Court’s decision, while others are appalled at the blow dealt to affirmative action.

The Supreme Court’s recent ruling brought to light the decision that Sotomayor and others made several years ago; additionally, the fact that Sotomayor’s confirmation hearing is a mere two weeks away augments the press coverage the judge is receiving. Conservatives are in an uproar over the possibility that a woman may be named to the nation’s highest court (a position that is reversible only upon death), who refers to herself as a “perfect affirmative action baby” and was caught on record stating that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” Even Democrats are voicing reservations about her temperament and judicial abilities, referring to her as a bully and questioning whether she will be able to provide a liberal alternative to conservative opinions. With even her own party doubting her, is Sotomayor really the person we want on the judicial bench—for life?

President Obama has stated that he picks his judicial nominees based on their empathy for excluded and downtrodden groups and while empathy is certainly an admirable personal quality, should it be the primary factor one looks for in a justice? I always imagined that an understanding of the Constitution or a commitment to justice would be foremost on the list, but it appears I am mistaken. Sotomayor has been chosen for her empathy and, it seems, her upbringing. The child of Puerto Rican immigrants, Sotomayor attended Catholic schools, until she was accepted into Princeton University, after which she continued to Yale Law School. Despite her impressive academic resume, however, Sotomayor herself states that her test scores were not comparable to her colleagues at Princeton and Yale, and she would not have been accepted into either institution had it not been for affirmative action. It now seems that her mission as a judge is to promulgate the system that allowed her to receive the education she did and while this is understandable, is another activist judge and the continuation of affirmative action really what this country needs? In a 2008 nationwide poll issued by the Federalist Society, it was found that seventy percent—an overwhelming majority—of Americans prefer judges who interpret and apply the law as it is written, not who think it is their calling to legislate from the bench. Furthermore, we reside in a nation that claims to be colorblind; after all, an African-American sits in the Oval Office for the first time in history.

I am not naïve. I do realize that there are still those who cling to bigoted ideas, but I do not believe that this is the majority of Americans. Affirmative action was implemented at a time when our fellow citizens were often filled with racism and the idea that the color of one’s skin somehow made them inferior. In a country that claims to have moved beyond this mindset, how can we become truly colorblind if we continue to take people’s race into account when considering them for acceptance to college or for a job promotion, and does this practice not degrade minorities by suggesting that they could not achieve such goals without government intervention? In my mind, it is our continued insistence to give weight to a person’s skin color that divides us. With Sotomayor at the helm of our nation’s judicial system, it is unlikely that we will judge solely on a person’s qualifications and character. Before appointing Sonia Sotomayor to a lifetime position on the Supreme Court, we must ask ourselves: is this truly the direction in which we wish to move as a nation? Here’s hoping that the Senate will recognize the importance of selecting a judge who is informed by the law—not personal experience—and is guided by a commitment to justice—not empathy.

3 Responses to “Affirmative Action: Helping or Hindering a Colorblind America?”

1. Miles says:

   July 2, 2009 at 11:09 pm

   Quite frankly, I think Sotomayor’s comment about “a wise Latina woman” exemplifies exactly what she stands for and what she brings to the judicial process.

   Essentially, she puts for the idea that “one form of justice” does not fit all backgrounds and crimes. Let’s face it, no two cases are entirely alike and may require different judgments depending on the circumstances.

   I understand the notion that justice should be blind but quite frankly it rarely is. Study after study after study has shown that a disproportionate number of minorities are imprisoned when compared to their representational population in society as a whole.

   Furthermore who are we, as Caucasians to say that the issue of race in America has been resolved? Wouldn’t an African, Asian, or Latino-American be a better judge?

   In regards to the case mentioned above, it is rather odd that no African-Americans and only a few Hispanics were eligible for promotion. Sometimes tests can have implicit biases against people of certain cultural backgrounds. Should New Haven have designed a test designed to give African-Americans promotions? No. Should it have reviewed its test format and content? Of course.
2. Siegfried says:

   July 3, 2009 at 12:12 pm

   Miles:

   Study after study after study has shown that a disproportionate number of minorities are imprisoned when compared to their representational population in society as a whole.

   But is the number disproportionate to the rates of crime committed by these groups? Population size alone is not a meaningful measure.
3. Josh says:

   July 10, 2009 at 6:40 pm

   Miles:

   “Furthermore who are we, as Caucasians to say that the issue of race in America has been resolved? Wouldn’t an African, Asian, or Latino-American be a better judge?”

   It seems as if you are stuck in the same mindset as Sotomayor. Why would you base any decision, especially legal actions, on the mere fact of someone’s race? This is the basis for racism and should not be tolerated. I have a huge issue with affirmative action due to the simple fact it is the most blatant exercise of racism seen in our generation. Why should anyone be granted admission to a university because they represent a minority? It is incredibly unfair and racist to permit any action to occur simply based on a person’s race. I work hard for all that I achieve and that has nothing to do with my ethnicity. We need to stop trying to look accepting and minority-friendly and become real and just. If an African-American earns something over me, that is completely fine. I do not have any issues with minority success. Our country was built through immigration and I want that to continue. My problem lies in the racist decisions judges, universities, and employers make based solely on race. There are many obstacles that hinder the ability and drive to achieve what we want in this country, and affirmative action only offers another detrimental roadblock to society.