Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as the liberals, especially on racial issues.
But conservatives and like-minded centrists can win the political debate if they focus not on buzzwords but on in-depth, civil discourse about the very big issue on which Sotomayor and her liberal supporters are most at odds -- and the conservative justices most in tune -- with the vast majority of Americans.
That issue is racially preferential affirmative action. By this, I mean the many forms of supposedly benign discrimination against whites and Asians that have been engineered over the past 45 years to advance blacks and Hispanics in the workforce, in college admissions, and in government contracting.
The long-standing public disapproval of such preferences was documented yet again by a major Quinnipiac University poll released on June 3, showing that American voters, by a lopsided margin, want them abolished.
Initiated in the 1960s as a temporary expedient, racial preferences may well become permanent if a Justice Sotomayor is eventually joined on the Court by a like-minded successor to one of the Court's conservatives. (The justice Sotomayor would replace, David Souter, also supports preferences.)
The now-famous New Haven, Conn., firefighter case is a perfect symbol of how the sort of preferences she supports can operate as raw racial discrimination.
Sotomayor voted with two other judges last year to uphold the city's denial of promotions to white firefighters who had studied hard for months and done well on a scrupulously fair test of job-related skills. But because no African-Americans did well enough to qualify, the city decided that nobody would be promoted, claiming that it feared a "disparate impact" lawsuit by low-scoring blacks. (See May 30 column.)
The Quinnipiac poll showed that respondents, by well over 3-to-1, want the Supreme Court to overturn the Appellate panel's decision. And although the poll shows that this has not yet hurt Sotomayor's popularity much, the case will become more salient later this month. The justices are widely expected to reverse the panel's decision.
None of this is to suggest that the nominee's racially preferential actions put her outside the liberal Democratic mainstream. Quite the contrary. Most liberals are addicted to racial preferences and identity politics.
But this puts liberal Democrats very far out of sync with the overwhelming majority of Americans, including us centrists. President Obama made noises during the campaign that seemed to suggest he understood this. But the Sotomayor nomination -- for all her inspiring accomplishments, powerful intellect, and devotion to the underprivileged -- looks like a strong Obama endorsement of the racial preferences and identity politics that she has supported.
The voters, however, by 55 percent to 36 percent, called for abolishing "affirmative-action programs that give preferences to blacks and other minorities in hiring, promotions, and college admissions" in the new Quinnipiac poll.
The 3,000-plus respondents also wanted the Supreme Court to overturn Sotomayor's New Haven firefighter decision by a whopping 71-19 percent.
Black respondents wanted to continue affirmative action, 78-14 percent; Hispanics were evenly split. But both groups strongly disapproved of the firefighter decision, 53-33 percent among African-Americans and 68-24 percent among Hispanics.
Other polls have yielded similar results "with unwavering consistency over the past three decades," as my colleague Ronald Brownstein writes in this issue -- see "Racial Preferences Debate Makes A Comeback."
But most elected officials have supported racial preferences despite their unpopularity, with even many conservative Republicans going along, as Brownstein details. The main reason, in my view, is politicians' fear that opposing racial preferences would get them smeared by liberal activists and their media allies as racially unenlightened, at best.
The result is that the Supreme Court -- along with successful ballot initiatives in California, Michigan, Nebraska, and Washington state -- has been the only restraint on proliferation of ever-more-pervasive racial preferences. Which brings us to the question of conservative judicial activism.
President Bush's appointments of Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006 moved the Court closer to the absolutist "colorblind Constitution" position of Justices Clarence Thomas and Antonin Scalia, who see virtually all governmental racial classifications as unconstitutional.
Centrist Anthony Kennedy is more conflicted. But he supported -- with reservations -- a major June 2007 decision in which the four conservatives sharply curbed school districts' use of race-based student assignments to increase integration.
Liberals denounced this as flagrant judicial activism. I agreed to some extent in my July 7, 2007, column because -- in my view -- Roberts's plurality opinion sought to transfer too much power over such issues to judges, and away from the political branches and thus from the voters, by imposing a more absolutist ban on any and all racial classifications than is justified by the Constitution's language and history. (In my September 27, 2008, column, I also argued that all nine justices are judicial activists.)
But is it judicial activism when the justices stretch the Constitution to go over the heads of the political branches -- which are dominated by special-interest lobbies -- not to overrule the voters but rather to give them what they want?
Maybe not. And it's clear that the voters want racially preferential affirmative-action programs abolished.
Scholars have long applauded liberal justices who have stretched the Constitution's meaning to get rid of unpopular laws that had persisted only because of special-interest pressure. One example is the 1965 decision striking down Connecticut's anti-contraception law.
Conservatives could invoke similar logic, as well as several major Supreme Court precedents, to justify curbing unpopular racial-preference programs that -- like that anti-contraception law -- have persisted only because of special-interest pressure.
This logic would not apply to the 2007 school integration decision, which did not directly involve unpopular racial preferences. But it would more than justify a ruling for the white New Haven firefighters. Far from being activist, such a decision would vindicate the central thrust of the 1964 Civil Rights Act and the Constitution's equal protection clause.
Of course, senators and others who speak out for nondiscrimination and against racial preferences will be falsely accused of playing the race card. The best response is to avoid inflammatory rhetoric while stressing the nondiscrimination principle and the real-life consequences that are at stake.
The Supreme Court, along with several successful state ballot initiatives, has been the only restraint on proliferation of ever-more-pervasive racial preferences.
Consequences such as those described by Karen Lee Torre, the white firefighters' lawyer, in her December 2007 oral argument before the Appeals Court panel.
In response to Judge Rosemary Pooler's assertion that "no one was hurt" in the New Haven case, Torre said: "No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 apiece [for test preparation].... They spent three months of their lives holed up in a room, like I was and you were when we took the bar exam."
Torre went on to emphasize why the test was a valid basis for making promotions -- and what can happen when promotions go to people who have not done their homework:
"These men [are not] garbage collectors. This is a command position of a first-responder agency. The books you see piled on my desk are fire-science books. These men face life-threatening circumstances every time they go out.... They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined-space rescue, dirty-bomb response, anthrax, metallurgy.... The court [should] not treat these men in this profession as if it were unskilled labor. We don't do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow, they treat firefighters as if it doesn't require any knowledge to do the job....
"Firefighters die every week in this country.... A young father and firefighter, Eddie Ramos, died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house... with a truss roof known to collapse early in [a] fire because of the nature of the pins that hold the trusses together.... And the fire chief had to go tell a 6-year-old that her father wasn't coming home."
Judge Sotomayor responded by observing that there must be "a fair test that could be devised that measures knowledge in a more substantive way."
Translation: New Haven needs a test that won't give such an advantage to the firefighters who have learned the most about fighting fires.
This article appears in the June 6, 2009, edition of National Journal Magazine.