Prickly Questions On Race, Gender

Looking at her strong academic background and 17 years on the federal bench, Judge Sonia Sotomayor, the first Hispanic woman nominee for the U.S. Supreme Court, appears to be an exceptionally qualified candidate.

President Barack Obama has said he wants a Supreme Court justice who will bring real-life experience and empathy to the court, but those statements have alarmed conservatives who fear Sotomayor will decide cases based on “identity politics” – political action advancing the interests of a group whose members believe they are oppressed based on shared race, ethnicity, religion, gender or sexual orientation.

What especially concerns critics, and must be addressed as Sotomayor meets with Congress this week, are previous decisions and statements she has made regarding race and gender. Unlike former Supreme Court Justice Sandra Day O’Connor, who said she believed that a wise old man and a wise old woman could reach similar decisions, Sotomayor, in a 2001 speech at the University of California-Berkley, said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Sotomayor has been vilified by right-wing radio hosts and pundits who say that statement proves she is racist. We don’t support name-calling, and we want to hear her out. Her statement sounds like something said by a person who is proud of her heritage, not necessarily a person who hates another group. And remember that Supreme Court Justice Samuel Alito made similar remarks about the value and importance of his Italian heritage. “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,” Alito said during his Senate confirmation hearing.

On Friday, The New York Times reported that in the 1980s the Puerto Rican Legal Defense and Education Fund sued the New York City Police Department, claiming that its promotional tests discriminated against Latinos and African-Americans. Sotomayor joined the board of that group in 1980 after graduating from Yale Law School.

The lawsuit claimed the police department’s promotional exams failed to measure the ability to perform in a senior position, and yielded unfair results because too many whites passed and too many Hispanics and African-Americans did not.

The suit led to a settlement with the city that produced greater numbers of promotions to sergeant for officers who are Latino or African-American.

Then, white officers who felt the settlement was unfair sued. They said white officers who outscored Hispanic and African-American officers couldn’t take the positions because of quotas. Their case, Marino v. Ortiz, reached the Supreme Court in 1988, where it failed on a 4-4 vote.

Critics also point to a similar decision 20 years later against Frank Ricci, a New Haven, Conn., firefighter. Sotomayor currently sits on the appellate court that ruled against Ricci, who alleged he was discriminated against when a set of promotional exams was thrown out.

Ricci, who has dyslexia, was determined to become a lieutenant or captain in the New Haven Fire Department. He gave up a second job to spend more time studying and listened to tape-recorded lessons in preparation of the exam. Ricci did well on the exam, but when none of the 19 black firefighters taking the exam earned a passing score the results were thrown out and no one was promoted. So Ricci and 17 other white firefighters, plus one Hispanic firefighter, sued, alleging reverse discrimination.

In Sotomayor’s years as a judge, she has heard more than 400 federal cases, so it is unfair to sample only two for an overall picture of her judicial demeanor. But Congress and American citizens, who are right to want justice to be color-blind, deserve more context surrounding her reasoning in these cases.

We know we shouldn’t aim for mediocrity. But what are the barriers that are keeping minorities from scoring well on these tests? Is it the test? Or is it other factors?

This issue has relevance today in Virginia. A similar law enforcement promotional test was tossed in Virginia Beach in 2007 and sent to a panel for study in Chesapeake in 2008 for similar reasons. In Chesapeake, no women or black officers scored high enough to move forward in the promotion process.

Diversity does make us stronger. Varying opinions and viewpoints build that strength. But we want to live in a nation where talents and extra effort are rewarded, not punished.

And talented policemen, firefighters or people of any profession who strive for advancement should have clear paths to achieve those goals, regardless of race.

We are eager to hear more from Sotomayor, a woman who was raised in a public housing complex, immersed herself in education, graduated from two of our country’s greatest universities and is poised to join the nation’s highest court. We hope her agenda is to follow the Constitution to the benefit of all.

Diversity in any workplace should be a goal, but quotas are not a path to excellence. Policies aimed at “helping” minorities are truly hurtful if they hold others back.