President Obama's nomination of Sonia Sotomayor to the Supreme Court is compelling both parties to grapple with combustible issues of affirmative action and racial preference that have been submerged for most of the past two decades.
During the 1970s and '80s, programs to increase representation of minorities in public- and private-sector hiring, college admissions, and government contracting ignited many of the most searing arguments in American politics and helped remake the Republican and Democratic electoral coalitions. But since then these issues have provoked only rare skirmishes, as a combination of political, economic, and cultural changes have reduced their visibility and immediacy to all but a handful of activists on each side. "You had an environment where it wasn't on the top of the radar screen for anybody," veteran Republican pollster Tony Fabrizio said.
Now Sotomayor's nomination is forcing these issues back into the spotlight. And they have quickly proved as polarizing as ever.
The resurfacing of this debate creates something of a minefield for each party. Some Republicans worry that challenging Sotomayor too forcefully, particularly on issues inextricably intertwined with her ethnicity, could further accelerate the party's rapid decline among Hispanic voters -- two-thirds of whom supported Obama in the 2008 election. For that reason, even some conservatives believe that Republican senators will prove cautious about pressing Sotomayor on these issues when she appears before the Judiciary Committee. "I regret to say that it is probably going to be one or two short questions, that they have no appetite for this," said Linda Chavez, a senior civil-rights official under President Reagan who now chairs the Center for Equal Opportunity, a group opposed to racial preferences.
Conversely, some Democrats worry that identifying too closely with programs perceived as favoring minorities risks deepening their party's decline among white working-class voters, nearly three-fifths of whom rejected Obama in November. "To the extent these issues remain of low salience, then the risks to Democrats are limited," says William Galston, a Brookings Institution senior fellow, who has grappled with these questions since serving as Walter Mondale's issues director in the 1984 presidential campaign. "To the extent that the debate over this nominee pushes this issue back higher up the radar screen than it is right now... then there is an element of risk."
Raising the visibility of these issues is clearly at the top of the priority list for the nominee's opponents. Almost from the moment that Sotomayor was nominated, most conservative critics have directed their wrath principally at her record on race-related matters. She has drawn fire from the Right for her involvement, before her appointment as a federal trial court judge by George H.W. Bush in 1992, with Hispanic advocacy groups that have supported aggressive programs to increase minority hiring. Her 2001 comment that she 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" has also received substantial flak.
Most of the attention has centered on her 2008 ruling in Ricci v. DeStefano. As part of a three-member panel of the U.S. Court of Appeals for the 2nd Circuit Court, Sotomayor voted to uphold a trial court decision that allowed the city of New Haven, Conn., to retroactively throw out an exam used to determine promotions for firefighters. No African-Americans and few Hispanics had scored high enough on the test to qualify for promotion, prompting New Haven to reject the results. The city argued that using the test would leave New Haven vulnerable to a federal anti-discrimination lawsuit. White firefighters who would have been promoted under the exam sued, but their arguments were rejected first by the trial court and then the Appellate panel on which Sotomayor participated. Now the Supreme Court is reviewing the case.
Republican senators have generally taken a wait-and-see position, but Sotomayor's record has triggered charges of "identity politics" and "reverse discrimination" from conservative commentators and activists. Former House Speaker Newt Gingrich labeled Sotomayor a "racist" and said she should withdraw; conservative talk-radio host Rush Limbaugh likewise described her as a "racist and a bigot" and upped the ante by comparing her with former Ku Klux Klan leader David Duke.
A Wedge Issue
As these arguments erupted in the first days after Sotomayor's nomination, at times it seemed the appropriate background music might have been David Bowie or Pat Benatar because they represented such a flashback to the political world of the 1970s and early 1980s.
In those years, disputes over affirmative action for minorities that had traditionally been excluded from opportunities -- and questions about when those efforts crossed the line to reverse discrimination against whites -- flared across an extraordinarily wide battlefield. Seeking, for instance, to expand the hiring of minorities, "the Justice Department [from 1972 to '80] took 51 city, county, and state governments to court, including both the police and fire departments of Los Angeles, Chicago, Miami, and St. Louis; the fire departments in Boston, Dallas, Buffalo, Atlanta, and San Francisco; and the police departments in Philadelphia and Cincinnati," wrote Thomas and Mary Edsall in their classic 1991 book Chain Reaction, which explored the role of racial issues in dissolving the New Deal Democratic electoral coalition.
Likewise, disputes over racial considerations in college admissions during those years produced the Supreme Court's landmark 1978 Bakke decision, which banned outright quotas but allowed universities to use race as a "plus factor" in admissions decisions. With somewhat less intensity, arguments regularly erupted over federal, state, and local contracting programs that provided advantages to minority-owned businesses, which had traditionally been excluded from participation.
Initially, the partisan line of division on these questions was murky; although some affirmative-action efforts were launched under Democrat Lyndon Johnson, Republican Richard Nixon advanced many of them and added his own. But by the late 1970s -- and more clearly after Ronald Reagan's election in 1980 -- a sharper divide emerged, with most Democrats backing affirmative-action programs for minorities and many Republicans resisting them, though, as it turned out, only up to a point.
The Democrats' identification with the interests of minorities not only on affirmative action but also on an array of other racially raw issues, including welfare, crime, and school busing, was critical to the most important political trend of that era: the shift in allegiance toward the Republican Party among the white working-class voters who had anchored the Democratic electoral coalition from 1932 through 1968. That trend reached a milestone in 1984, when exit polls showed that Reagan won the votes of one-fourth of self-identified Democrats, many of them blue-collar workers.
Immediately after Reagan's landslide, Stanley B. Greenberg, then a young Democratic pollster, conducted a series of landmark focus groups in Macomb County, Mich., a white, blue-collar Detroit suburb. He found visceral opposition among whites to raced-based affirmative-action programs and widespread alienation from Democrats who were seen, through those programs and others, as favoring minorities, especially African-Americans. "These workers reject absolutely any notion that blacks suffer special circumstances that would require special treatment by employers or the government," Greenberg wrote. "There is no historical memory of racism and no tolerance for present efforts to offset it.... The special status of blacks is perceived by almost all of these individuals as a serious obstacle to their personal advancement."
Against that backdrop, the Reagan administration launched what the Edsalls termed "a prolonged offensive against race-based affirmative action," seeking (mostly unsuccessfully) to overturn in court many of the consent decrees that the Justice Department had earlier reached with local governments. But in what would become an important Republican pattern over the next three decades, Reagan shied away from a full-scale assault on federal programs that provided advantages to minorities.
The principal federal program encouraging affirmative action in private-sector hiring is Executive Order No. 11246, signed by Johnson in 1965. That order requires federal contractors (who employ about one-fifth of the civilian workforce) to establish goals and timetables for hiring minorities and women. It represents, as Chavez terms it, the federal government's "biggest hammer" for promoting affirmative action.
During the Reagan years, an alliance of administration conservatives, including Chavez; Clarence Thomas, who served as chairman of the Equal Employment Opportunity Commission; and Assistant Attorney General William Bradford Reynolds, sought to rescind the executive order. But they were beaten back by moderates inside the administration (led by Labor Secretary Bill Brock and Secretary of State George Shultz) with the support of centrist Republicans in Congress, and the order remained in force.
After George H.W. Bush succeeded Reagan in 1989, the same pattern held. The elder Bush made some efforts to narrow federal enforcement of civil-rights laws, and vetoed a civil-rights bill on the grounds that the legislation encouraged "quotas." But he eventually signed a revised bill and also allowed Johnson's executive order to stand undisturbed. Bill Clinton's presidency saw only intermittent skirmishes on these issues. In 1993, Clinton was forced to withdraw his Justice Department nomination of Lani Guinier, a prominent African-American thinker on racial issues, after conservatives effectively labeled her a "quota queen." Clinton was pressured into ordering an administration review of federal affirmative-action programs by a combination of Supreme Court rulings narrowing their use and legislative maneuvering against them by the new GOP congressional majority in 1995.
Ultimately, however, Clinton proposed only minor changes, concluding that the proper approach to affirmative action was "mend it, don't end it." And the Republican legislative drive fizzled. GOP members introduced legislation in 1995 to ban all federal programs that provided racial preferences. But the bill never moved beyond a Judiciary subcommittee in the House and was never voted upon in the Senate, although then-Majority Leader Bob Dole had sponsored it, initially intending to highlight the issue in his 1996 presidential campaign. "What was striking to me was how cowardly the Republicans were on the issue; they just wanted it to go away," Chavez said. "They talked a good game on racial preferences when they were out of power and couldn't do anything about it... and when they got into power, they sort of sat on their hands."
The pattern persisted during George W. Bush's two terms. Liberal civil-rights advocates charged that Bush loosened enforcement of civil-rights laws, and the administration joined in a court challenge against University of Michigan admission programs that critics argued favored minorities. But Bush did not attempt to dismantle the principal federal affirmative-action programs, particularly the Johnson executive order. "He just didn't feel comfortable with the issue," said Peter Wehner, who directed the White House's Office of Strategic Initiatives under Bush. "He didn't like the issue and didn't want to deal with it too much."
Losing Their Sting
The reluctance of Republicans to confront these programs more forcefully when they held power is striking because polls have long shown substantial skepticism about race-conscious policies. Generally, the public has supported affirmative action defined as outreach meant to ensure that minorities are fairly included in the pool of applicants for jobs, contracts, or college admissions. But with unwavering consistency over the past three decades, surveys have revealed that an overall majority of Americans -- and about three-fourths of whites -- oppose programs that are perceived as providing any thumb-on-the-scale preference for minorities. In a recent poll by the Pew Research Center for the People and the Press, 76 percent of whites and just over one-third of African-Americans and Hispanics said they opposed programs that provide preferential treatment to minorities. White opposition to such efforts was overwhelming even among groups that tilt toward Democrats, such as women and those with college educations.
Since the mid-1990s, California, Michigan, Nebraska, and Washington have passed ballot initiatives to ban such programs at the state level. Although Colorado last year narrowly rejected a similar initiative, and although petition drives failed to attract enough signatures in three other states, one Democratic consultant who has worked on campaigns opposing such bans notes that few elected officials have been willing to resist them publicly. "They are skittish about these issues," the consultant said. "How many Democratic politicians were campaigning for affirmative action or against these initiatives in those states? The answer is, damn few."
Yet, both sides agree that affirmative-action issues have lost most of their sting since the 1980s. When Greenberg returned to Macomb County for a series of focus groups last summer, he found continued opposition to affirmative action but nothing like the emotional responses he received in 1985. "The Reagan Democrats and Democratic Defectors, the mostly Catholic blue-collar Democrats of Macomb still have distinct views on race and are uncomfortable with many policy conclusions taken for granted in the elite world," he wrote. "Nonetheless, race is not as top-of-mind and central to their political consciousness." To underscore the point, Obama, the first African-American major-party nominee, comfortably carried the county, long fabled as the epicenter of blue-collar alienation from the Democrats.
These programs may be less inflammatory now because they are more institutionalized, and also because the head-on white-black collisions that characterized these confrontations in the 1970s have been diffused into a broader racial politics that includes Hispanics, Asians, and other groups. From a political perspective, the shift toward the GOP among white working-class voters is less urgent for both parties because to a great extent it is now a settled fact: No Democratic presidential nominee since 1988 has won more than 44 percent of those voters. And yet, as the white working class's share of the electorate has declined from a 54 percent majority in 1988 to 39 percent in 2008, Democrats have built a new winning coalition centered on minorities, college-educated whites, and young people.
Perhaps most important, these issues have cooled because the overall tenor of American politics is so much less race-conscious than it was a quarter-century ago. Other factors that provided fuel for the affirmative-action disputes -- especially busing, crime, and welfare -- have receded, the last two in large part because of initiatives that Clinton undertook to identify Democrats with policies seen as demanding equal responsibility from all races. "Bill Clinton did Barack Obama an enormous favor by taking those issues off the table," said the Brookings Institution's Galston, who served as Clinton's deputy domestic policy adviser.
Many conservatives believe that affirmative-action issues have lost steam mostly because Republicans fear charges of racism if they challenge these programs. "Republicans have been reluctant to press it because they are afraid of being accused of playing the race card," said Roger Clegg, the general counsel at the Center for Equal Opportunity.
A Defining Moment?
For Senate Republicans to launch a full-scale assault against Sotomayor on affirmative action would break from the party's historical pattern of treating these issues gingerly. Yet Clegg, unlike his colleague Chavez, is relatively optimistic that GOP senators will press these questions with the nominee because her record, particularly in the New Haven case, raises them so directly. Republican pollster Fabrizio also believes that Sotomayor's stance on affirmative action will strike more sparks now than it might have a few years ago, "given the economic climate that we're in, where so many people are concerned for their situation."
To the extent that critics can focus the Sotomayor confirmation on race-related questions, they could force Obama to more directly address issues he has mostly sidestepped. During his presidential campaign, Obama expressed some sympathy for those who want to transition away from programs that provide racial advantages: He stressed his support for race-neutral initiatives that benefit the disadvantaged of all races; and at a primary debate in Pennsylvania, the candidate questioned whether his daughters, with their comfortable upbringing, should receive preference in college admission because of their race. But Obama hasn't proposed substantive changes in federal affirmative-action programs, and he has mostly appointed strong advocates of them to the relevant executive branch positions. In the Ricci case, the Justice Department has largely supported the 2nd Circuit Court's reading of the law. But it also urged the Supreme Court to send the case back to the trial court for more investigation into whether New Haven was justified in believing that it could face a discrimination lawsuit if it relied on the controversial promotion test.
David Axelrod, Obama's senior White House political adviser, predicts that in the end, opponents won't be able to focus the Sotomayor nomination on these questions or paint her as an advocate of unfair racial preferences. "I think it is a volatile issue; it has always been a volatile issue," he said in an interview. "[But] I don't think her career can be reduced to that, and as hard as they try to make that a defining moment in her career... I don't think they will be able to do that."
If Axelrod is right, opposition to Sotomayor might quickly crumble. If he's wrong, and race ultimately moves to the center of the confirmation process, this debate could prove a defining moment in Obama's own relationship to the long-dormant but still explosive argument over when inclusion for minorities tips into discrimination against whites.
This article appears in the June 6, 2009, edition of National Journal Magazine.