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Jul. 10 2009 - 2:35 pm | 13 views | 0 recommendations | 5 comments

Running with Ricci: A preview of the GOP’s anti-affirmative action witnesses

President Obama and Vice President Sotomayor with Judge Sonia Sotomayor at the White House on May 26 (Win McNamee/Getty)

President Obama and Vice President Sotomayor with Judge Sonia Sotomayor at the White House on May 26 (Win McNamee/Getty)

In 2005, when Justices Samuel Alito and John Roberts were confirmed by the Senate, affirmative action seemed almost an after-thought. In Alito’s case, only two of his 33 witnesses in his hearings had obvious ties to affirmative action groups, one from each side of the aisle. For Roberts, Democrats called only two witnesses to speak to his record on civil rights.

In contrast, more than one-third of the witnesses on the Republican’s list for Judge Sonia Sotomayor’s confirmation hearing are lawyers and academics, who’ve based their careers on opposing affirmative action, and activists who have become symbols of the anti-affirmative action movement.  The conservative side of the debate over Sotomayor has revolved, so far, around her decision to uphold a lower court ruling in a reverse-discrimination case she heard while on the Second Circuit,  Ricci v. DeStafano, and her comments about how her experiences as a Latina woman have shaped her judicial conclusions. With five out of fourteen anti-affirmative action advocates on the minority’s witness list, it’s clear that these focal points are not going away.

One of the witnesses likely to discuss Sotomayor’s role in Ricci is John McGinnis, a professor at Northwestern University School of Law and a vocal opponent of affirmative action. McGinnis railed against the Supreme Court after it upheld state-sponsored affirmative action in the University of Michigan Law School case heard in 2003, where the court stated that race could be a consideration in school admissions because of “educational benefits that flow from a diverse student body.”  The court’s ruling was a promotion of “covert discrimination,” wrote McGinnis in a 2003 piece published in the National Review, and called it one of the “worst defeats [for conservatism] in a generation.”

McGinnis followed up his attack on the Supreme Court’s affirmative action decisions with an infamous law review article in 2005 showing that the law school faculty members who donate to political candidates, donate overwhelmingly to Democrats over Republicans. In demonstrating that law schools are comprised of little, if any, “political diversity” McGinnis attempts to dismantle the premium put on what he calls “viewpoint diversity” justification that the court used to allow minorities an admissions advantage.

McGinnis’s academic arguments and research against affirmative action will likely be balanced by the more anecdotal testimony of Frank Ricci and his fellow plaintiff Lieutenant Ben Vargas. Vargas was the only minority candidate who passed the city’s written test to qualify for a promotion and was denied when the city threw out the results. Neither Vargas or Ricci will be able to speak to Sotomayor’s judicial or legal qualifications, making their testimony a probable attempt at political grand-standing rather than a critique on her fitness as a Justice.

But besides probable testimony on Sotomayor’s role in the  reversal of the Second Circuit on Ricci, the witnesses may also address some of her more controversial statements on race. “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion,” said Sotomayor at multiple speeches between 1994 and 2004. In some of those speeches she added, “than a white male who hasn’t lived that life” at the end – a qualification that sparked cries of racism from conservative agitators, like Rush Limbaugh and Newt Gingrich.

If the issue gets addressed next week, it will likely be taken on by Linda Chavez, president and founder of Center for Equal Opportunity, a conservative anti-affirmative action think tank and conservative commentator. “[Sotomayor's] comments were no mere gaffe but a studied description of her views on the importance of race and ethnicity to her role as a judge,” Chavez wrote July 3 in an on-line opinion column, which succinctly lays out her various objections to Sotomayor.

But though she discusses Sotomayor’s “wise Latina” comments and her role on Ricci, Chavez’s main concern is Sotomayor’s stance on quotas. ”The committee should press [Sotomayor] on her views about proportional representation — and not let her get away with the usual demurral on quotas,” wrote Chavez, revealing perhaps what she will conveniently have the opportunity to tell the committee herself next week.

On all of these issues, from Ricci to quotas, Peter Kirsanow, an affirmative action opponent and the Bush-appointed commissioner at the U.S. Commission on Civil Rights will likely have something to say. Kirsanow, who testified on behalf of both Justices John Roberts and Sam Alito, is part of the politicization of the USCCR during the Bush years. He has a vocal history arguing against affirmative action, which he dubbed “social engineering by the anointed,” in a 2008 piece in the National Review.

All together, expect these five witnesses will likely keep race and affirmative action at the center of the debate over Sotomayor’s confirmation.


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  1. collapse expand

    This is quite an informative article. I’d planned to follow the confirmation hearings, but now I’ll be a more educated observer.

  2. collapse expand

    It is since the McCain campaign and the acceptance (if not outright encouragement) of shouts such as “Kill him!” from their crowds that I’ve noticed this brazen disregard for a keystone in U.S. policy for embracing diversity in all the pubic areas of our lives. I understand that white (European American) supremacists are disgruntled, so unused to finding themselves actually competing with “minorities.” But their cries of racism are silly. At least that is what I thought at first. Now I’m wondering if their callous argument of “racism” against what is right (moral) will prove to be caustic. They have decided to use the law to wield their pointy white hoods against the greater good. It’s sophistry. And no one yet seems to know what to do about it.

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    About Me

    While working at Talking Points Memo Muckraker during the 2008 Election, I covered the Justice Department politicization, voting rights law and the insanity of Alaska politics. I loved the beat which was somewhere between the wonky side of politics and the law. The realization was enough to send me off to law school in D.C. -- which seems to be a perfect combination of both.

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