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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Is Affirmative Action a Game-Changer On Sotomayor?

Yesterday I predicted that the Supreme Court’s Ricci decision would quickly move to the center of the Right’s case against the confirmation of Sonia Sotomayor. That’s already happening today.
Underlying this tactical decision by conservatives is the belief that affirmative action is an wedge issue whose time has finally come back round at last. Check out George Will’s column today on Ricci, in which the imperious High Tory all but stamps his feet in impatience that anybody could still think affirmative action is appropriate:

The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., “race-conscious” actions that somehow are not racial discrimination because they “remedy” discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.

Moreover, conservatives will brandish recent polls showing apparent public rejection of the kind of affirmative action the city of New Haven seems to have been exercising in the Ricci case, here from CNN and here from Quinnipiac.
So: is the affirmative action “wedge issue” back, and does it pose a serious threat to Sotomayor’s confirmation?
I weighed all the evidence at fivethirtyeight.com earlier today, and concluded: no, almost certainly not.
The polling around the Ricci decision shows the same old public attitude towards affirmative action that’s been prevelant since the last excitement over the issue, in the mid-90s. People don’t like quotas and preferences. But they do favor affirmative action, and stubbornly resist efforts to “end” rather than “mend” it. And Barack Obama is very firmly established on the high ground of this subject.
As for Sotomayor, here’s where I come down:

The bottom line is that Ricci shouldn’t be a big factor in the Sotomayor confirmation fight so long as she insists that she was applying well-established precedents in the interpretation of a statute enacted by Congress–i.e., she was far from exerting any sort of “judicial activism” or racial-ethnic point of view, and was just doing her job. President Obama can and should defend her on this point, and both should benefit from his superior positioning on the issue, and the reluctance (political if not ethical) of at least some potential Sotomayor critics to directly attack the first African-American president and the first Latina Justice on baldly racial grounds.

We’ll soon see, but it looks like conservatives are picking up Ricci as just the most convenient stick to hit her with, and it’s not a big stick in the final analysis.

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