Judge Sonia Sotomayor

Obama Understands the Power of the First Hispanic Justice

WASHINGTON (By Peter Baker, NYT) June 2, 2009 — In the heat of his primary battle last year, Barack Obama bemoaned “identity politics” in America, calling it “an enormous distraction” from the real issues of the day. Many thought his inauguration as the first African-American president this year was supposed to usher in a new post-racial age.

But four months later, identity politics is back with a vengeance. A president who these days refers to his background obliquely when he does at all chose a Supreme Court candidate who openly embraces hers. Critics took issue with her past statements and called her a “reverse racist.” And the capital once again has polarized along familiar lines.

The selection of Judge Sonia Sotomayor brought these issues to the fore again for several reasons. Mr. Obama’s selection process was geared from the beginning toward finding a female or minority candidate, or both. Only one of the nine vetted candidates was an Anglo male, and all four finalists he interviewed were women. One of Judge Sotomayor’s most prominent cases involved an affirmative-action claim. And her comment on her Hispanic background shaping her jurisprudence provided fodder for opponents.

“He didn’t pick a post-racial candidate,” said Abigail Thernstrom, a leading conservative scholar on race relations and the author of a book called “Voting Rights — And Wrongs: The Elusive Quest for Racially Fair Elections.” “She’s a quintessential spokesman for racial spoils.”

The White House argued Judge Sotomayor’s opponents were picking through her past remarks to wield her words against her. “What the election of Obama said is people want to move forward rather than backwards, and I think that’s still true,” said David Axelrod, the president’s senior adviser. “Americans are savvier and more thoughtful than some of the demagogues give them credit.”

The Supreme Court seems to promote this sort of discussion more than any other forum in public life, perhaps because it has so few seats and they come open so rarely. Of the 110 people who have served on the court, only four were not white males. Every president over the last generation has at least flirted with the temptation to name a “first” — or at least a second or third.

Aides said despite Mr. Obama’s own low-key approach to ethnicity, naming the first Hispanic to the Supreme Court held great appeal for the president, though they said it was only one of many factors. Mr. Obama has written a best-selling book about his roots as the son of a white mother and black father and well understood the political power of his being the first African-American president just as he understands the power of the first Hispanic justice.

He has used symbols to celebrate the history of his ascension, like inviting civil rights figures to his inauguration, including the Tuskegee Airmen, the elite, segregated World War II corps. He has also brought a more diverse team and set of visitors to the White House.

But since his major speech on race during the primaries when he disavowed the inflammatory rhetoric of his minister, he has avoided overt discussion of the issue. The rare times he refers to his background are usually subtle and framed as a message about America as a place of opportunity. Since becoming president, he has not talked much about discrimination or disparities. Judge Sotomayor, by contrast, has more openly addressed her differences with other judges.

“Obama has sought to transcend ethnic differences and has emphasized his own post-racial identity to appeal to as many Americans as possible,” said William Burck, a deputy White House counsel under President George W. Bush. “It seems Judge Sotomayor considers her ethnicity to be a central part of who she is, not just as a private citizen but also as a lawyer and a judge.”

Much of that assessment stems not just from Judge Sotomayor’s membership in groups that brought discrimination claims or her ruling against white firefighters in a New Haven affirmative action case, but from a single speech she gave at the law school at the University of California, Berkeley, in 2001. The speech addressed the role personal backgrounds play in rendering decisions and concluded “our gender and national origins may and will make a difference in our judging.”

“I would hope a wise Hispanic 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,” she said.

Mr. Obama and his advisers knew of her remarks when he made the selection, but they concluded any of the finalists would have some quotation or action that would attract criticism. They reject the notion they fostered identity politics through a selection process focused on adding diversity to the court, noting Judge Sotomayor has more experience on the bench than any current justice did when nominated.

“Yes, I think he thinks there’s value in having a Supreme Court that has a diversity of experience and diversity of points of view,” Mr. Axelrod said of the president, “but that was not the principal criteria that he applied. The principal criteria he applied was, is the person an excellent judge?”

The White House has been somewhat surprised by the intensity of the focus on identity, much of it fanned by round-the-clock cable coverage. The talk show host Rush Limbaugh declared Judge Sotomayor a “reverse racist” and described Mr. Obama as “an angry man with a chip on his shoulder.”

Newt Gingrich, the former House speaker, wrote a white man saying the reverse would have to withdraw so a “Hispanic woman racist should also withdraw.”

Mr. Obama and his aides responded by denouncing her critics while saying she had used a poor choice of words. “I’m sure she would have restated it,” Mr. Obama said on Friday. “But if you look in the entire sweep of the essay she wrote, what’s clear is she was simply saying her life experiences will give her information about the struggles and hardships that people are going through — that will make her a good judge.”

The White House and its liberal supporters also dug up quotes from Republican-appointed justices, including Samuel A. Alito Jr., who said at his confirmation hearing his immigrant roots played into his consideration of cases.

“When a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases,” he said at the hearing, “I can’t help but think of my own ancestors because it wasn’t that long ago when they were in that position.”

Representative Nydia M. Velázquez of New York, a Democrat and chairwoman of the Congressional Hispanic Caucus, said, “So help me God, I just don’t know what is different between what he said and what she said.” Ms. Velázquez added, “I think some people want to create a commotion here that scores political points.”

The White House is counting on the notion when the points are counted, it will have scored more. Mr. Obama won 67 percent of Hispanic votes last year, according to exit polls, and his political advisers would like to lock down a large constituency that remains in play between the two parties. The calculation in the president’s circle is Republicans will shoot themselves by attacking the first Hispanic Supreme Court nominee.

“If there are critics out there who try to engage in some kind of playing the politics of race, they’re going to do so at their own peril because I think the country is past that,” said Joel Benenson, the president’s pollster.

Ms. Thernstrom, a Republican appointee to the United States Commission on Civil Rights, said the real question was what the episode revealed about Mr. Obama. Is he the apostle of a post-racial society or a more subtle player in the country’s age-old identity politics or something in between? “I think he’s a complicated person,” she said.