Jul 08 2009
Explanation: In his famous dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), Justice Harlan wrote that "‘our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." This powerful concept reflects the essence of the Constitution's guarantee of Equal Protection of the laws: The Government should not treat people differently on account of race.
Judge Sotomayor's record raises the question of whether she agrees with this aspiration. First, Judge Sotomayor has suggested that there may be "inherent physiological . . . differences" among individuals of different races and ethnicities. She has also suggested that the vision of colorblindness is in "perpetual tension" with the value of ethnic diversity. See Sonia Sotomayor, A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87 (2002). Second, Judge Sotomayor joined the opinion blocking the New Haven firefighters' lawsuit in Ricci v. DeStefano - an opinion that the Supreme Court reversed just this week on the ground that New Haven's conduct was "antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race."
I think Justice Harlan was right: The Constitution is color-blind. In the upcoming hearings, I hope Judge Sotomayor will explain whether she agrees with Justice Harlan or whether she has a different view of the Constitution.
Sen. Cornyn serves on the Finance, Judiciary and Budget Committees. He serves as the top Republican on the Judiciary Committee's Immigration, Refugees and Border Security subcommittee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.