Legal Commentary

Sotomayor Criticized For 1981 Memo Addressing Racism in Capital Punishment

By TChris

The conservative faithful cling to the belief that racism doesn't exist in our society -- or, if it does, it is racism directed against beleaguered whites. Some conservatives, fearing the repercussions of a full-frontal assault upon Sonia Sotomayor, have shied away from bellicose charges that Judge Sotomayor is a racist, although RNC Chairman Michael Steele recently fanned those flames by saying: "God help you if you’re a white male coming before her bench." (Steele's evidence that white males have not fared well before Judge Sotomayor during her 17 years on the bench is nonexistent, but ignorance of the facts has never stopped Steele or his conservative cohorts from expressing an opinion.)

The right wing Judicial Confirmation Network raised the divisive issue of racism less directly by griping about a memo Sotomayor and two other board members of the Puerto Rican Legal Defense and Education Fund signed in 1981 that said "capital punishment is associated with evident racism in our society." These are fighting words to the conservative mind, which not only denies the reality of racism but believes capital punishment is fair, just and necessary (except, perhaps, for the likes of Scott Roeder, who will not face the death penalty for his alleged murder of Dr. George Tiller). The Network's counsel relied upon the 1981 memo when she warned the Senate Judiciary Committee that Sotomayor is "a hard-left liberal judicial activist."

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The death penalty's arbitrary (indeed, haphazard) application raises obvious questions about the impact race (as well as wealth) has upon death sentences. That Sotomayor recognized those concerns more than ten years before she became a federal judge does not disqualify her from a seat on the Supreme Court. Nor does her expression of opinions about an issue of public importance long before she donned a black robe render her unsuitable. It would be strange to think that the only citizens who are fit to sit on the Supreme Court are those who have taken no interest in questions of public policy. Certainly, an affiliation with conservative organizations that hope to influence public policy -- most notably, the Federalist Society (pdf) -- has not been regarded as a bar to judicial confirmation.

Conservatives will argue that Judge Sotomayor's endorsement of opinions that liberals tend to share concerning the death penalty proves not only that she has prejudged questions that may come before the Court, but that she will be a "liberal activist" if confirmed. When the Judiciary Committee asks the judge about her current view of the death penalty, her answer (whatever it may be) will surely be accompanied by the obligatory "my personal views, of course, will not influence my duty to follow the law." That answer will be meaningless, but meaningless answers to rhetorically charged questions have become the norm in judicial confirmation hearings. If the Senate believed Chief Justice Roberts when he said he would be a neutral umpire or Justice Alito when he claimed he would have no agenda but to be guided by "the rule of law," why shouldn't it believe Judge Sotomayor when she says (as she inevitably will) much the same thing?

Ultimately, conservatives want to air the 1981 memo because they expect white people to resent the charge that there is "evident racism in our society" or that American judges and juries (or prosecutors who make charging decisions) are swayed by considerations of race. Appeals to the "angry white man" are still central to the GOP playbook, but they've been rendered ineffective in a climate of anger about the white men who destroyed the nation's economy, squandered its military resources, and crippled its government. However the card is played -- whether Sotomayor is labeled a racist or painted as an angry Latina who makes unfair charges of racism -- it won't give the conservative faithful a winning hand.

Full post as published by TalkLeft on June 07, 2009 (boomark / email).