06/27/2009 05:12 am ET Updated May 25, 2011

Affirmative Action Hit on Sotomayor Aimed to Send Message

Rush Limbaugh, Pat Buchanan and the conservative judicial hit team wasted no time in branding Judge Sonia Sotomayor a combination activist judge and closet bigot who will lord her gender and ethnicity over white males, and savage them in her decisions and rulings on the Supreme Court. They wave Sotomoyar's narrow and legally sound appellate court vote against a group of white New Haven firefighters who screamed reverse discrimination when the city dumped a promotion test that black and Latino firefighters got lower marks on than the whites. Supposedly this will stir anti-affirmative rage among the public against her.

If as expected, the Supreme Court rules in June that the firefighters were discriminated against, that will prove that Sotomayor is badly out of tune with the majority of Americans who oppose affirmative action.

The anti-affirmative action baiting won't derail Sotomayor's confirmation, but then again it's not really designed to do that. The aim is to send a message actually two messages; one to Sotomayor to make her think twice about her rulings and decisions and opinions on race and gender tinged issues that will invariably will hit the court. The other message is to drive home that American's are still repelled by any talk of using affirmative action to level the playing field. Nice try. But there was no judicial activism in her New Haven case ruling. Her opinion was based strictly on case law and legal precedent and in her opinion she did not utter a word that gave any hint of a race tilt. On the high court, she'll be intently scrutinized for the same hint of a racial bias. But since the justice's cite a long train of case law and legal precedent in their decisions, and craft them in the narrowest of terms, she won't give the conservative judicial hawks anywhere to go there either.

The smear of her as out of touch with American opposition to affirmative action is more delusional thinking. True, a majority of Americans do firmly oppose the use of quotas, preferences, set asides and even what's deceptively labeled "reverse discrimination." They've backed anti-affirmative action initiatives that tar affirmative action programs as a gross violation of the America's cherished values of equality, fair play, and reward for merit. But polls have also shown that when the pollsters avoid an all-or-none choice between affirmative action as it currently exists and no affirmative action whatsoever a majority of Americans support affirmative action at some level.

Title VII of the civil rights law explicitly gives employers the right to ban tests that have a "disparate impact" on racial groups. The New Haven firefighters test squarely fell in that category, and Sotomoyar's opinion in the case simply acknowledged that legal fact.

The staple of the anti-affirmative action argument is that qualified white males are getting kicked to the curb and are losing ground to unqualified blacks, minorities and women. This underlay Limbaugh's snatch at Sotomayor's off the cuff quip uttered nearly a decade ago in a Berkeley speech about a "wise Latina" having a better grasp on life's knocks than white males to prove that she's a bigot. The facts, though, speak for themselves on this one. According to census figures, if every unemployed black worker in the country were to displace a white worker, only a tiny fraction of whites would be affected. Furthermore, affirmative action pertains only to job-qualified applicants, so the actual percentage of affected whites is minuscule. In New Haven, only a relatively small number of firefighters were affected by the alleged reverse discrimination.

In 1996 anti-affirmative action crusader Ward Connerly cloaked his anti-affirmative action ballot initiative as the "California Civil Rights Initiative." Connerly also managed to win a few victories for his anti-affirmative action measures in some states. However, less well known is that Connerly also scotched plans to dump his anti-affirmative action initiatives on dozens of state ballots nationally. The resources, political sentiment, and public support to mount a big freewheeling all out national assault on affirmative action were just not there.

Congress has also repeatedly backed away from totally dismantling affirmative action programs, beginning a decade ago when lawmakers shelved anti-affirmative action legislation. President Bill Clinton followed suit. He drew much heat for his plan to modify some aspects of affirmative action programs, but eventually dropped his administration's talk about further watering down affirmative action programs.

The anti-affirmative action crusade hasn't fared any better in state legislatures. No state legislature even in the Deep South has pushed for an outright ban on all affirmative action programs.

The anti-affirmative action hit against Sotomoyar is more than a last gasp, desperate grab at straws by the conservative hawks to derail her confirmation and pick at Obama. The goal is to chill her on the court and batter affirmative action. Neither will work.

Earl Ofari Hutchinson is an author and political analyst. His weekly radio show, "The Hutchinson Report" can be heard on weekly in Los Angeles at 9:30 AM Fridays on KTYM Radio 1460 AM and live streamed nationally on