Keep Affirmative Action, Without Reverse Discrimination

By Miguel Perez

June 29, 2009 5 min read

Some Republicans will tell us that Sonia Sotomayor is in trouble, that Monday's Supreme Court decision to overturn one of her appeals court rulings should disqualify her from joining the highest court in the land.

Of course, because this is not unprecedented, the argument will be phony. Appeals court judges whose rulings are overturned can end up on the Supreme Court. It has happened before, and it surely will happen this time.

In spite of all the race-baiting arguments that will be made by some of her critics, Sotomayor will be confirmed as the first Latina Supreme Court justice, not only because she is brilliant and deserves it but also because the Supreme Court needs a little diversity.

Yes, that's right; the composition of the Supreme Court needs a little affirmative action!

Yet it should not be the kind of affirmative action practiced by the city of New Haven, Conn., where efforts to end discrimination against African-Americans led to reverse discrimination against white and Hispanic firefighters.

At the Supreme Court level, we don't have that problem. After all, candidates for the Supreme Court are nominated by the president and confirmed by the Senate. It's a political decision. There is no promotional exam that determines who is most qualified to sit on the highest court. If there were one, Sotomayor surely would pass it. But if there were a bunch of white men who scored better than Sotomayor and she got the job anyway, that would be reverse discrimination.

In New Haven, when the city threw out the results of a firefighters promotional exam because not enough black firefighters passed and because officials feared lawsuits from black applicants claiming that the test was flawed, it turned affirmative action into reverse discrimination. When the city was challenged by white and Hispanic firefighters who passed the exam, the case went all the way up to the 2nd U.S. Circuit Court of Appeals, where a panel of judges, including Sotomayor, failed to recognize it as reverse discrimination and ruled in favor of the city.

But because the Supreme Court overturned the appeals court's ruling Monday — deciding that white firefighters were denied promotions unfairly — we now can expect Sotomayor's critics to say this proves she is an activist judge who rules based on her personal feelings about race.

In fact, the New Haven case proves exactly the opposite; Sotomayor showed restraint and followed precedent by supporting the city's decision to comply with the Civil Rights Act of 1964. Had Sotomayor been the activist Hispanic judge some claim she is, she would have ruled in favor of the white firefighters, because among them there was at least one Hispanic.

Nevertheless, immediately after the ruling, Sotomayor's critics said it raised serious questions about her nomination. Mind you, because the divided ruling came down to a 5-4 vote, four sitting Supreme Court justices agreed with Sotomayor, including David Souter, the justice she would replace. Had she been on the high court already, Sotomayor's vote would not have changed the outcome.

Besides, Supreme Court justices almost always disagree on how laws should be interpreted, but that hasn't disqualified them from sitting on the Supreme Court.

The only serious questions raised by this ruling are about the future of affirmative action programs and their role in helping women and minorities advance in the U.S. work force, government contracting and college admissions.

On the extreme right, there will be those who argue that race no longer should be an issue, that we should strive to create a colorblind society, that affirmative action is no longer necessary and that it should be banned.

But that would be absurd, especially because that argument usually comes from prominent race baiters, people who prove — just by their racist behavior — that affirmative action is still very necessary.

It may not be the perfect way to correct the inequalities and discrimination that still exist in our society, but until someone comes up with a better way, affirmative action is the best of all the bad solutions.

When affirmative action programs create reverse discrimination problems — as abhorrent as the ones they were meant to solve — we obviously have to find a way to revise them. The idea is to avoid all forms of discrimination, for all Americans.

But because there is no test for Supreme Court justices and because Sotomayor is as qualified as hundreds of other Americans with brilliant credentials, why not apply a little affirmative action to the Supreme Court of the United States?

To find out more about Miguel Perez and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at

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