So, this summer we will have confirmation hearings for Judge Sotomayor, and it is likely that their focus will be on racial preferences (because of her vote in the New Haven firefighters case) and the intersection of identity politics and the role of the judge. The Supreme Court, meanwhile, will hand down decisions in the New Haven litigation and in another case involving the constitutionality of Section 5 of the Voting Rights Act (the principal use of which today is to mandate racial segregation of voting districts through racial gerrymandering). Based on the oral arguments in those two cases, liberals will not like the outcome in either one. So the civil-rights establishment will want Congress to overturn those decisions, and of course the Democratic leadership will be eager to oblige, so bills will be introduced. Presiding over this drama will be our first African-American president.
I think it’s fair to describe this as a crisis. The way it plays out will determine (not finally, since nothing is ever final in politics) but for some time whether America has shrugged off the principle of E pluribus unum. This, notwithstanding the fact that, in an increasingly multiracial and multiethnic society, it is untenable to have a legal regime in which citizens are sorted according to skin color and the national origin of one’s ancestors, and treated better or worse depending on which box they check.
We know that the Democrats in Congress will do the wrong thing — that is, they will do whatever they can to advance the use of racial preferences to the nth degree. They are hopeless. The question is, what role will the Republicans play — and what will President Obama do?
One might expect Republicans to have good instincts and President Obama to have bad (he nominated Sotomayor, after all), but I fear that the Republican stance can’t be taken for granted and I hope that Obama’s can’t. Republicans can be cowardly on these issues, and President Obama’s words, if not his actions to date, indicate that he is better than the rest of his party.
We’ll see. Opposing racial preferences would certainly be a good issue for Republicans, and it would be a political masterstroke for Obama. And, of course, there is the little matter that an African American president who rejected our racial spoils system would be doing a great and noble thing.