Cose: Sotomayor vs. Thurgood Marshall Hearings

After four exhausting days of testimony, Sonia Sotomayor finally exhaled. Thursday night, she retreated to the home of a former law clerk in Alexandria, Va., where, surrounded by friends and family, she let others, for the most part, do the talking. Thomas Butler, a paper-handler foreman for The New York Times, met Sotomayor and his future wife, Margarite, when both girls were juniors at Cardinal Spellman High School. Sotomayor's friends, he observed, were doing what they had always done: gathering around her to quietly lend their support. Butler, whose oldest son and namesake is Sotomayor's godchild, had brought his family to Washington to stand with her during this joyful yet tense and grueling week. And like many others across America, Butler struggled to put her ascension into context. "I don't think we'll see as much history in the next decade as we have seen this past year. And it's all positive," he said.

It's impossible to know, of course, how much history the decade has yet to unveil. But what is clear is that Sotomayor's hearings marked yet another important milestone in the modern evolution of the United States. Sotomayor was only the third person of color and the third woman to face a confirmation hearing for the Supreme Court. And she was the first person to be both—a fact not lost on the multitude (upwards of 2,000 people, according to Senate Judiciary chair Patrick Leahy) that crowded into the hearing room during her four days of testimony.

Like any Supreme Court confirmation hearing, this most recent one was an occasion for reflecting on the big issues facing the court. But because Sotomayor would be America's first Latina justice, it was also a time for taking stock of how far the country has come since Thurgood Marshall appeared before the committee seeking to become America's first black justice.

In virtually every respect, Sotomayor's questioners were very different from the ones who faced Marshall. That committee's sole remaining member, Edward Kennedy, left the panel at the end of last year. And it is not just the committee's membership that has changed. When Marshall testified, in July 1967, America's cities were in flames. The day before his hearings began, riots had broken out in Newark, N.J. In the three years preceding his appearance, America had grown accustomed to violent eruptions in its black communities. And as Northern cities burned, the old lions of the South fought the desegregation that the Supreme Court had told them was coming.

James Eastland, a Mississippi cotton farmer and avowed white supremacist, was one of those old lions. He was also the chair of the Judiciary Committee. And he was joined on that body by Strom Thurmond of South Carolina and John McClellan of Arkansas.

To those Southern senators, Marshall was not just an accomplished black lawyer but an enemy. As director-counsel of the NAACP Legal Defense and Educational Fund, he had led the fight for school desegregation—a battle that, in the eyes of many Southerners, threatened to destroy the Southern way of life. Marshall had left the NAACP in 1961 to become an appeals-court judge (sitting on the U.S. Court of Appeals for the Second Circuit, where Sotomayor would serve several decades later); he had left that court in 1965 to become solicitor general under Lyndon B. Johnson, who nominated Marshall to the high court.

McClellan set the tone during the first minutes of testimony with questions about the "reign of lawlessness and chaos" sweeping the country, and Eastland demanded to know what Marshall intended to do about it. At one point Eastland inquired of Marshall, "Are you prejudiced against white people in the South?" Thurmond wanted to know whether the Constitution permitted shooting rioters on sight. He also subjected Marshall to a detailed cross-examination on slave codes, involuntary servitude, and other matters related to slavery. And he quoted an Ohio congressman who had observed in 1850 that "no sane man ever seriously proposed political equality to all, for the reason that it is impossible."

The committee had its friendly voices, too, including Kennedy. But the Southern senators were clearly not happy with the man Johnson had put before them. Those questioning Sotomayor could not have been more different. Democrat and Republican alike, they went out of their way to praise her qualifications and congratulate her on her personal journey. And they paid her the same deference they had previously paid GOP nominees John Roberts and Samuel Alito when they refused to address, in any substance, what they would do once confirmed.

But the Republican senators also made clear that they were bothered by the nominee's efforts on behalf of ethnic minorities; they wondered whether she had crossed a line. Richard Durbin, Democrat from Illinois, was moved to wonder aloud what that meant. With Roberts and Alito, said Durbin, "the questioning really came to this central point: 'Do you as a white male … have sensitivity to those unlike yourself—minorities, disadvantaged people?' … In this case, where we have a minority woman seeking a position on the Supreme Court, it seems the question is, 'Are you going to go too far on the side of minorities and not really use the law in a fair fashion?' "

In Sotomayor's case, many of the questions arose not just from her minority status but from her speeches and past membership on the board of an organization that actively promoted its vision of equality for Latinos. And the questions led some to speculate about how she might have fared had she actually litigated for the Puerto Rican Legal Defense and Education Fund instead of merely having sat on its board. Theodore Shaw, a past head of the NAACP-LDF who appeared as a witness in support of Sotomayor, believes that no one who runs such an organization could be confirmed in today's politically polarized environment—that a modern-day Thurgood Marshall, in other words, would never make it out of committee. It's hard to know whether Shaw is right; but it is sobering to think that, 42 years after Marshall's confirmation, and even as we celebrate a new American age, old questions about identity politics and same-group bias continue to dominate the debate.

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