Obama, Sotomayor and Affirmative Action

Yesterday's long-awaited Supreme Court decision in Ricci v. DeStefano is unsurprisingly being injected immediately by conservatives into their case for rejecting the confirmation of Sonia Sotomayor to replace David Souter on the Court. The obvious reason is that the Court, by a 5-4 margin, reversed a Second Circuit decision in the same case in which Sotomayor participated.

But anti-Sotomayor forces are also avidly using the decision to heighten the racial overtones of the confirmation fight. The idea is to link her "repudiation" by the Supremes to claims that she is race-and-ethnicity obsessed, while exploiting long-simmering public resentment against some forms of affirmative action, particularly in the kind of employment cases at issue in Ricci. In other words, they hope Ricci can blow the confirmation fight wide open.

Is there any basis for that hope in public opinion? Not as much as Sotomayor and Obama critics seem to think.

Exhibit A in the case for Ricci being a huge problem for Sotomayor is a CNN/Opinion Research Corporation poll released just yesterday that recited the basic facts of the Ricci case and asked respondents to play judge:

In a case currently before the Supreme Court, a city decided to use a test to determine which firefighters should receive promotions. No black firefighters scored high enough on the test to earn a promotion, so the city decided not to offer promotions to the white firefighters who got the highest scores on the test. Which of the following statements comes closest to your view:

65% Those white firefighters were victims of discrimination and should get the promotions based on the test results
31% Because no black firefighters got high scores, the city should use a new test to make sure that blacks were not victims of discrimination

This question, of course, does not get into the details of the statutory and constitutional issues being tested in Ricci, much less the role of Sotomayor's Second Circuit Court of Appeals, which was not, unlike the Supreme Court, in a position to make new interpretations of law. This is a critical point already being raised by Sotomayor's supporters, most notably Linda Greenhouse in today's New York Times. Even Justice Kennedy's majority opinion in Ricci steered clear of any argument that Sotomayor's court misinterpreted the law as it stood prior to yesterday.

While Americans should not be expected to pay attention to such institutional nuances, this issue of precedents does complicate the other prong of the anti-Sotomayor argument: that she is a "judicial activist" who wants to make "policy" from the bench.

More generally, the question in assessing the impact of Ricci on the confirmation fight is whether public hostility to affirmative action is on the upswing, perhaps (as some conservatives have been arguing for a while) because President Obama's own election shows it's no longer necessary.

The most immediate evidence is a recent NBC/Wall Street Journal survey which posed a question that's been asked since 1991:

Now let me read you two brief statements on affirmative action programs, and ask which one comes closer to your own point of view. Statement A: Affirmative action programs are still needed to counteract the effects of discrimination against minorities, and are a good idea as long as there are no rigid quotas. OR, Statement B: Affirmative action programs have gone too far in favoring minorities, and should be ended because they unfairly discriminate against whites.

Respondents preferred Statement A to Statement B by a 63%-28% margin, a higher level of support for affirmative action than in January 2003 (59%), March 2000 (54%), September 1995 (50%) or March 1991 (61%).

Wording on such polls is important, of course, and the qualifier in Statement A above ruling out "rigid quotas" is important. As recent polling from Quinnipiac shows, questions on affirmative action that do not include a rejection of "rigid quotas" and that also introduce the idea of "preferences" produce a different reaction:

Do you think affirmative action programs that give preferences to blacks and other minorities in hiring, promotions and college admissions should be continued, or do you think these affirmative action programs should be abolished?

This formulation elicited 55% support for abolishing such programs, and 36% for continuing them.

There's nothing new about that, and nothing new about the wildly varying findings on affirmative action depending on the precise wording. (The NAACP site has a useful compendium of examples of how the wording of poll questions on affirmative action affects the outcome.)

This is why smart politicians have generally taken a position on affirmative action that endorses the concept while avoiding extreme applications and tough cases. It's no accident that a national debate on the subject in the 1990s that was threatening to create a major conservative wedge issue was tamped down significantly by President Bill Clinton's famous "mend it, don't end it" speech of 1995. Sure enough, a TIME/CNN poll conducted shortly after Clinton's speech found 65% of Americans saying affirmative action programs should be "mended," and just 24% saying they should be "ended."

Barack Obama has worked hard to occupy that same safe territory on affirmative action. He's gone out of his way to suggest that "preferences" should no longer be granted automatically on the basis of race, but he's also strongly opposed state ballot initiatives that would outlaw affirmative action measures entirely. There's no particular reason to believe that doesn't remain the political "sweet spot" on the subject.

The claim that Obama's own election dooms affirmative action isn't well supported in public opinion. The same Quinnipiac survey that's being cited as showing that Americans don't like racial preferences also showed that 80% denied Obama's election made any difference to their views on affirmative action, and of the 18% saying it did, nearly half (8%) said it made it more likely that they'd support affirmative action.

The bottom line is that Ricci shouldn't be a big factor in the Sotomayor confirmation fight so long as she insists that she was applying well-established precedents in the interpretation of a statute enacted by Congress--i.e., she was far from exerting any sort of "judicial activism" or racial-ethnic point of view, and was just doing her job. President Obama can and should defend her on this point, and both should benefit from his superior positioning on the issue, and the reluctance (political if not ethical) of at least some potential Sotomayor critics to directly attack the first African-American president and the first Latina Justice on baldly racial grounds.