R-a-c-e is how “controversy” should be spelled. No critical topic or decision in our culture colored by ethnicity – even if only moderately – successfully avoids arousing passion, and often, anger given the strong feelings harbored by many. From college admissions to jury selection, race seems to always emerge as a crucial facet when both discerning what is right and then deciding what to do.

Zac Peskowitz

Is it wrong that race is such a significant component during these and similar deliberations? No. To the contrary, this country’s abominable and embarrassing history of racial intolerance and trends that indicate persistent racial bias pervasive throughout the United States both argue strongly for race to remain a prominent concern when assessing the rules, systems and institutions of our society. Both also illustrate the gravity of race-based discussions, though, and it is to our detriment that many in America have forgotten that accusations of racism or racially-motivated actions should not be recklessly levied.

The latest perpetrator of this insidious crime is U.S. Sen. Orrin Hatch (R-Utah). As reported in The New York Times, Hatch responded to indications last week that Democrats in the Senate will initiate a filibuster to counter President G-dub’s nomination of Honduras-native Miguel Estrada to a federal appeals court by saying that a Democratic “intellectual glass ceiling for Hispanics” may be created. “If they do not think a certain liberal way that they think, then they are not good enough for upward mobility,” said Hatch, indicting the Senate’s Democrats as racists. (And I add this last clarification for anyone whose comprehension of the quote, like mine initially, was thrown askew by Hatch’s frequent and confusing use of the pronoun “they.”)

The Democrats in the Senate were guilty not of being racists, but instead of being Democrats. Estrada is a Washington lawyer with impressive credentials – he was an editor of the Harvard Law Review and clerked for U.S. Court of Appeals and Supreme Court justices – and extreme, conservative leanings.

Paul Bender, Estrada’s supervisor when he worked in the solicitor general’s office, said Estrada “lack(ed) the judgment” and “is too much of an ideologue to be an Appeals Court judge.” Among his more notable stances, Estrada fervently supports capital punishment, has successfully argued for the use of anti-loitering laws found to disproportionately affect minorities and has defended HMOs and other corporations against claims by customers and workers adversely affected by his clients’ actions and negligence.

Further alienating the Democrats, Estrada, who has been likened to Supreme Court Justice Antonin Scalia, refused to disclose his stances on many prominent Supreme Court cases, including Roe v. Wade, during a preliminary judiciary committee hearing.

That hearing and Estrada’s legal history clearly illustrate a belief system incongruous with that of the national Democratic Party. (So, let me applaud the Democrats for putting up a fight, for once.) Thus, Hatch’s comments were an egregious exploitation of race. He deliberately masked his displeasure with Senate Democrats as having been born of race, not ideology. The quotation smacks of a public relations ploy, one meant to cast the Democrats as discriminatory and galvanize support for the arch-conservative Estrada. Nowhere should have race entered the discussion.

Yet, I would be remiss were I to indicate that Hatch has been the sole racial instigator in the Estrada affair. Given the underrepresentation of Latinos throughout the federal judiciary, Estrada’s nomination was notable given his ethnicity, and that distinction was lost upon neither supporters nor detractors. The former have argued that Estrada’s appointment would begin to ameliorate a gross disproportion while the latter have said that Estrada has not done enough for Latinos and is a candidate divorced from his culture. However, despite the fact that others had played the race card before him, Hatch was still wrong for having appealed to such volatile feelings.

Every time that a person or group is accused of being racist, the designation becomes more and more commonplace, and if it arises often enough, the severity of the charge is lost, mitigated by overuse. Last week, rather than honestly saying that he wanted Estrada confirmed to pack one more conservative ideologue onto the appeals court, Sen. Hatch cried “wolf,” instead waging his battle like a coward with a far-more surreptitious tool, race. The next time Hatch calls someone racist it might not mean anything.

Litman can be reached at litmanj@umich.edu.

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