June 30, 2009 12:57 pm ET - by Matt Finkelstein
Nobody is questioning Justice Alito's intentions in the Ricci case, and rightly so. Why should Judge Sotomayor be treated differently than a white man?
Since yesterday's Supreme Court ruling in the controversial Ricci case, Republicans have been quick to attack Supreme Court nominee Sonia Sotomayor, who was part of a three-judge panel that had its prior decision in the case overturned. Sen. Jeff Sessions (R-AL), for example, cited the Supreme Court's judgment as evidence that Sotomayor's decision was made "solely to favor a group because of race."
The Supreme Court found that Judge Sotomayor was wrong to allow the city to change its promotion exam after it was given, solely to favor a group because of race.
Sessions' statement is pretty clearly discredited by the fact that Sotomayor was joined by two white judges in her original decision, which four white Supreme Court justices voted to uphold. Not to mention Sotomayor's long record of dismissing discrimination complaints, no matter who was bringing the charges. However, The American Prospect's Adam Serwer smartly points out another problem with such accusations against Sotomayor:
Of course, there is another justice who testified to how his ethnic background affected his jurisprudence, and that was Samuel Alito. Testifying in front of the Senate during his confirmation hearing, Alito said:
"When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."
Frank Ricci, the plaintiff in that case, is Italian American, just like Samuel Alito. Was Alito thinking about 'people in his own family' who 'suffered discrimination because of their ethnic background' when he cast his vote in the Ricci case? Was his ruling and concurrent opinion affected by his 'taking that into account' as he says he does in such cases?
There's no way to know. But what I find interesting is that no one's even asking the question. No one is suggesting, despite Alito's own statements, that his ruling was based on racial or ethnic sympathies. No one is questioning his motives or his judgment. In our national conversation, bias is something people of color and women have toward white men, not the other way around, history be damned.
Indeed, anyone accusing Alito of unfairly favoring Ricci wouldn't be taken seriously. That's how it should be. I'd argue that Alito's judgment was influenced by the fact that he's conservative, not that he's Italian. Sessions and his fellow Republicans can go after Sotomayor's "liberal" leanings if they wish, but she shouldn't be treated differently than a white man.
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