Judge Sonia Sotomayor is the first Latina Supreme Court justice. The Cambridge police dropped the charges against Professor Henry “Skip” Gates, an action supported by the mounting evidence that he was the subject of a false and racially charged arrest.
But without a doubt, this has been a bad summer for conversations on race. It began with the nomination and hearings for Judge Sotomayor to be elevated to the U.S. Supreme Court. As soon as the first Latina was nominated, accusations were hurled, stereotyping the nominee as intellectually dull and temperamental. Then for good measure, Republicans added the charge that the nominee was racist. Her now famous “wise Latina” comments—part of the judge’s thoughtful and candid discussion of how judges are shaped by their backgrounds—were held out as evidence that Judge Sotomayor would be biased on the bench in favor of Latinos. The discussion around the judge’s confirmation hearings focused on pushing back against these baseless characterizations. Judge Sotomayor’s observations about how personal experiences may affect how a judge views the law could have opened a productive discussion about the importance of racial and gender diversity in our courts, or even a thoughtful and more subtle conversation about judging that moved away from the facile image of judges as “umpires” who merely “call balls and strikes”—a concept advanced by John G. Roberts Jr. at his confirmation hearings to become chief justice.
Instead, Judge Sotomayor’s speeches were used by Republican senators on the Judiciary Committee to create a bizarre and ugly tableau, in which the all-white, all male, Southern- dominated Republican contingent on the committee sought to brand the first Latina Supreme Court nominee as racist. That Judge Sotomayor had first been nominated to the bench by a Republican president, that she was a former prosecutor, that the more than 3,000 cases in which she’d participated as a federal judge over 17 years showed her to be a careful, centrist jurist were all irrelevant. The Republicans were lost in their retro moment.
“Are you prejudiced against the white people of the South?” segregationist Mississippi Sen. James O. Eastland asked then-nominee Thurgood Marshall at his Supreme Court confirmation hearing in 1967. Forty-two years later, the question—over and over again—was virtually the same for Judge Sotomayor. The conversation in the confirmation hearings, and in this week’s debate, as Republican senators stood seriatim to denounce the Latina nominee as an enemy of gun rights, racial equality and national sovereignty has been neither honest nor illuminating. Instead, in the upside-down world of this summer’s racial exchange, a fine, highly accomplished jurist was subjected to an obscene distortion of her life's work.
Then, halfway through the summer, Professor Henry Louis Gates Jr. arrived home from trip to China to find the door to his home in Cambridge, Mass., jammed shut. The rest, as they say, is history. Within half an hour, Gates found himself shackled and arrested for having the temerity to speak harshly to a police officer in his own home. What could have been the start of a conversation about structural racial discrimination in the criminal justice system had been reduced by the end of last week to a personal sharing moment, largely because of President Barack Obama’s impromptu characterization of the arrest as “stupid” at the end of a news conference. To tamp down some of the furor caused by the reaction to his remarks, the president proposed what became known as the “beer summit” in which Gates and Sgt. James Crowley, the arresting officer, would sit down and have a beer with the president (the vice president joined them as well).
By all accounts, the meeting went well. Crowley emerged to give an impressive news conference. Gates released an eloquent and inspiring statement. The two “agreed to disagree” about what happened that night. The media toasted Sgt. Crowley as a new and impressive voice. Lost in the focus on the theatrics of the moment was evidence revealed by transcripts of the 911 call and statements from the caller, Lucia Whalen, which show that Crowley had made false statements in the police report.
Whalen had never said she saw “two black men with backpacks,” as Crowley claimed. In fact, she hadn’t volunteered a racial description at all. Gates had been subjected to what young black men call an “attitude arrest.” But the media had moved on. Once Crowley showed that he was no Bull Connor, the Gates arrest lost its cachet as a race incident for the mainstream media. This is still the limit of our talk about race and law enforcement—the endless search for actual, spewing racists. But Crowley need not be racist in order to be a participant in a set of actions that reflect the role of structural racism in policing and other criminal justice practices. That’s why black police officers can engage in police brutality and racial profiling as well.
It’s structural racism that should be the focus of our 21st-century race talk. It’s structural racism that accounts for why there have been only two African- Americans and now three women among the 111 Supreme Court justices. It’s structural racism that has resulted in one-third of black boys and men being in the custody of the criminal justice system in many areas of our country. It’s structural racism that produced the crack/powder cocaine sentencing disparity that helped swell the number of black men and boys doing extended time in our prisons.
A conversation about structural racism would invite us to examine how notions about race are deeply embedded in our legislative policies, our policing practices and our legal decision making. Yet we never got to this.
Despite the dismal state of our racial conversation this summer, perhaps we should be encouraged by a few things. Judge Sotomayor’s hearings have reignited some conversations about judicial diversity, still much needed on many of our nation’s courts. The aftermath of the Gates arrest has also produced some small cause for encouragement. President Obama plainly declared race to be “part of my portfolio.”
That presents an opportunity for us to more forcefully prod the president to give serious policy attention to racial profiling, police brutality and other criminal justice issues that are deeply connected to race and in which the Justice Department can take a lead in addressing.
With Judge Sotomayor, it will be interesting to see how her voice develops on the Supreme Court. At the very least she will be able to provide an alternative narrative to that of Justice Clarence Thomas in affirmative action cases. Thomas regards the role of affirmative action in his life with bitterness. But Judge Sotomayor has proudly acknowledged that affirmative action helped her get into Princeton. What she did with it—working her hardest to graduate first in her class—is an example of what affirmative action at its best can do. But she’s also a careful and thoughtful jurist, with a rich well of judicial and practice experience that should invigorate deliberations with her colleagues.
Most importantly, the onus is on us to use this summer’s failed racial conversations to push public discussions in our own communities on the issues raised by the Sotomayor nomination and the Gates arrest. We can perhaps do a better job of exploring structural racism and identifying concrete ways to dismantle institutional practices and policies that perpetuate racial subordination in our own communities.
When race conversations go bad, it’s time to keep talking.
Sherrilyn A. Ifill is a regular contributor to The Root.