The Politics of Being First

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.

© 2009