During last week’s Supreme Court confirmation hearings, Republican senators
kept bringing the conversation back to 2001 — the year when Sonia Sotomayor
delivered the most famous version of her line about how a “wise Latina woman
with the richness of her experiences” might outshine a white male judge.
It was left to a Democratic senator, Herb Kohl of Wisconsin, to ask about the
much more interesting year of 2028.
By then, according to recent Supreme Court jurisprudence, some kinds of
affirmative action may no longer be permissible. In 2003, writing for the
majority in Grutter v. Bollinger, Sandra Day O’Connor upheld race-based
discrimination in college admissions ... but only for the current generation.
Such policies “must be limited in time,” she wrote, adding that “the Court
expects that 25 years from now, the use of racial preferences will no longer be
necessary to further the interest approved today.”
It was a characteristic O’Connor move: unmoored from any high constitutional
principle but not without a certain political shrewdness. In a nation that
aspires to colorblindness, her opinion acknowledged, affirmative action can only
be justified if it comes with a statute of limitations. Allowing reverse
discrimination in the wake of segregation is one thing. Discriminating in the
name of diversity indefinitely is quite another.
It’s doubtful, though, that Sonia Sotomayor shares this view.
“It is firmly my hope, as it was expressed by Justice O’Connor,” she told
Senator Kohl, “that in 25 years, race in our society won’t be needed to be
considered in any situation.”
But O’Connor didn’t hope; she expected. And Sotomayor’s record suggests that
there’s a considerable difference between these postures — that for the nominee,
as for most liberal jurists, as long as racial disparities persist, so too must
This is the big question underlying both the “wise Latina” contretemps and the
controversy surrounding Sotomayor’s role in Ricci v. DeStefano. Whither
affirmative action in an age of America’s first black president? Will it be
gradually phased out, as the Supreme Court’s conservatives seem to prefer? Or
will it endure well into this century and beyond?
To affirmative action’s defenders, Sotomayor’s confirmation hearings have been
an advertisement for the latter course. Here you have a Hispanic woman being
grilled by a collection of senators who embody, quite literally, the white male
power structure. Her chief Republican interlocutor, Jeff Sessions of Alabama,
even has a history of racially charged remarks.
But the senators are yesterday’s men. The America of Jefferson Beauregard
Sessions III is swiftly giving way to the America of Sonia Maria Sotomayor and
Barack Hussein Obama.
The nation’s largest states, Texas and California, already have “minority”
majorities. By 2023, if current demographic trends continue, nonwhites — black,
Hispanic and Asian — will constitute a majority of Americans under 18. By 2042,
they’ll constitute a national majority. As Hua Hsu noted earlier this year in
The Atlantic, “every child born in the United States from here on out will
belong to the first post-white generation.”
As this generation rises, race-based discrimination needs to go. The explicit
scale-tipping in college admissions should give way to class-based affirmative
action; the de facto racial preferences required of employers by
anti-discrimination law should disappear.
A system designed to ensure the advancement of minorities will tend toward
corruption if it persists for generations, even after the minorities have become
a majority. If affirmative action exists in the America of 2028, it will be as a
spoils system for the already-successful, a patronage machine for politicians —
and a source of permanent grievance among America’s shrinking white population.
You can see this landscape taking shape in academia, where the quest for
diversity is already as likely to benefit the children of high-achieving recent
immigrants as the descendants of slaves. You can see it in the backroom dealing
revealed by Ricci v. DeStefano, where the original decision to deny promotions
to white firefighters was heavily influenced by a local African-American
“kingmaker” with a direct line to New Haven’s mayor. You can hear it in the
resentments gathering on the rightward reaches of the talk-radio dial.
And you can see the outlines of a different, better future in the closing
passages of Barack Obama’s recent address to the N.A.A.C.P., in which the
president presented an insistent vision of black America as the master of its
Affirmative action has always been understandable, but never ideal. It
congratulates its practitioners on their virtue, condescends to its
beneficiaries, and corrodes the racial attitudes of its victims.
All of this could be defended as a temporary experiment. But if affirmative
action persists far into the American future, that experiment will have failed —
and we will all have been corrupted by it.