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May. 26 2009 - 8:43 am | 326 views | 0 recommendations | 6 comments

Ain’t No Supreme Court Justice Ever Called Me N***er

U.S. Supreme Court building.

Image via Wikipedia

Could somebody please tell me what prize I get now that President Obama has nominated a minority for the Supreme Court? I ask because there has been a lot of talk about the importance of Sonia Sotomayor being a Hispanic woman — and, well, I’d just like to know what glorious prize minorities should expect in the mail.

I’m not a woman, and I’m not Latino. But I am black and I do have a person on the Court that “looks like me.” Yay! Unfortunately, my Clarence Thomas prize was a lightweight package of self-loathing and some very annoying soundbites about what I need, what don’t need, and what is bad for me and my “people.” I had to send that gift back.

Don’t get me wrong, I’m not parroting the “best person” available rhetoric that is so often code for “white man we all like.” There are a number of people that are qualified for the High Court. White men have done pretty well for themselves when all else is equal, why not switch it up a bit if it is going to make people feel better?

But why does it make people of a disaffected class feel better when one of their own reaches a position of special prominence? Women were very happy when Sandra Day O’Connor reached the Court. Italian-Americans were psyched for Antonin Scalia. Thurgood Marshall was pretty cool. But the legacies of these justices has everything to do with their performance on the Court. Did Louis Brandeis make jurisprudence safe for Jewish people? Or was he just a very influential jurist that happened to be Jewish?

Let’s assume, for the sake of the argument, that Sotomayor is a liberal. You know, the kind of person that supports a robust, rights-based interpretation of the “living constitution” (except the Second Amendment, that one sucks). Can’t we also assume that such a jurist will have a fairly strong comprehension of the issues facing various classes of people other than his or her own?

Even the most rabidly conservative modern Justices believe in the basic equality of all people (I’m almost positive about this). Chief Justice John Roberts, for all of his supposed faults, never prevented me from getting a cab. He’s never helped me get a cab either, but he’s a lawyer, what do you expect? One assumes that the political fault lines between liberal and conservative lie in the ideology of achieving equality; it’s not about whether such equality exists.

There are legitimate disagreements between the two parties on issues of equality. Look at the New Hampshire firefighters case, Ricci v. DeStefano. Sure, it’s going to be an issue for Sotomayor during her confirmation, but at heart this is the kind of case the two parties should be fighting about. One group — I’ll call them “people who do well on tests” — believe that tests are awesome indicators of future success. Another group of people — let’s call them “people who do poorly on tests” — generally believe that tests are simply an indication of past performance. Conservatives might be “yay tests,” liberals might feel “there’s something more than a freakin’ test.”

Can some one please tell me how being Puerto Rican has anything to do with what you might think about this case? What, did she have a cousin once that didn’t score highly on a test and has been waiting for a chance to avenge the family disgrace? Or is there something native to the second X chromosome that is supposed to help you make that decision?

Identity politics should take a backseat to jurisprudential ideology. I would not sacrifice one iota of liberal bona fides for the correct mix of chromosomes and pigmentation. It doesn’t make me feel better to have a person that looks like me on the Court. It makes me feel better to have a person that can match wits with Scalia and Roberts for the next generation.

Of course, there are a number of people that are competent for the Court and have the intellectual chops to match up with the conservatives. If, all else being equal, Obama wants to pick a woman or a Latino, I don’t have any problem with that.

But I’m not going to fight for Sotomayor on those grounds. Put a liberal on the Supreme Court, and even a white man would have done  just fine.


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  1. collapse expand

    Elie

    This may come as something of a surprise to you, but the choice of a Supreme Court Judge was probably not made with “giving you a prize” at the top of the list of priorities. While you seem intent on personalizing the choice, there is another – I would argue a better-way of looking at this.

    Let’s take as a given (at least for the moment) that the nominee shares at least the same intellectual capabilities of other Justices (I realize that I am assuming an important fact.) Does it not best serve the country to have a well-rounded Court that better represents the full American experience? Maybe it isn’t the fact that Judge Sotomayor is a Latina and a woman that matters. Maybe it is that her socio-economic background brings something to the Court that is needed to better represent the country. Maybe it is all of the above.

    Sorry, but this is not just about you and your prize. It’s about all of us and trying to form the best Court possible.

  2. collapse expand

    Agreed. I don’t think there should be any brownie points awarded for picking an individual who is female or Hispanic. As you point out, the real question should be somewhere in the area of “is he or she sufficiently liberal” or “sufficiently brilliant”? It sounds like Obama has replaced those criteria (ie uber-liberal and brilliant) with empathetic and experienced. I can live with that, especially as I completely buy the fact that the real benefit of diversity is not tokenism, but the introduction of perspectives and skills that would otherwise be absent from the discourse, and the application of which which may lead to better outcomes. Sotomayor may not be sufficiently “brilliant” as compared to eg Wood by conservative commentators, but she is extremely smart and capable. This is not a purely academic role (even if you concede she is merely extremely intelligent, as opposed to brilliant), nor is Sotomayor the (singular) Justice. By design, the highest bench is a panel. It can only be helpful to include the perspective of someone who is arguably as or more qualified and intelligent than the rest of the bench and who also has the life experience to raise the level of discourse. I find it frustrating that if boxes like “female” and “minority” are checked, there is the assumption that the threshhold on meeting other qualifications (in this case, intellect, knowledge of the law, ability to reason and protect the constitution etc) has been lowered. Isn’t it possible that this woman has the chops and just happens to be Latina? That said, I agree that a crazy brilliant uber-liberal who could beat Scalia at his own game would be satisfying. I’m not worried though. Obama should get 2 more picks.

  3. collapse expand

    “Identity politics should take a backseat to jurisprudential ideology.”

    Not sure why you should see those two as mutually exclusive of each other. Nor for that matter why see you see identity politics as necessarily a bad thing. I guess it depends on what you think the goal is, a post racial society, or a post racist society. Given my choice I’d opt for a post racist society. Without identity politics you and I could very well be living much different lives then we are living now.

  4. collapse expand

    Elie Mystal, I like your style, your sense of humor, and your point of view. I think I’m gonna like this website. Best to you …

  5. collapse expand

    I think that there is a time and place for identity politics, but that place is not necessarily on the Supreme Court.

    You know who would make an excellent Supreme Court Justice? Lani Guinier. She was the first (I think) African-American tenured Harvard Law professor. She’s got an amazing legal mind and actually has challenging views about race/gender and the law. Really challenging. “I’m not even sure if what she is talking about is legal” challenging. But she’ll never even be in consideration for a Circuit appointment. Too “radical.”

    Sotomayor, clear as I can tell, has a very standard view of race/gender and its interaction with the law. Oh, but she happens to be a Hispanic woman. And because of that, I’m supposed to think that she holds substantially different points of view than other liberals on the Court? I don’t think so.

    If you want to get an actually diverse set of legal arguments on the Court, there are ways to do that. If you want to get basically the same legal arguments on the Court, but look good doing it, well then, I suppose you nominate Sotomayor.

    Which is fine. But there’s no prize there.

    • collapse expand

      The first black tenured professor at Harvard Law School would be Derrick Bell, who eventually left Harvard in 1990 because his demand that the Law School hire a black woman as a tenured professor went unanswered. This was an extremely important event in the history of that fine academic institution on the Charles. Derrick Bell remains a hero who was willing to lose his coveted position to stand up for his beliefs.

      Many years later, enter Lani Guinier. You and I both know she never would have gotten the job without Bell’s activism.

      In response to another comment. See in context »
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    About Me

    My first name is pronounced like Eliot without the “it,” my last name is pronounced like the Crystal I don’t have the “M”oney to afford. I’m an editor of Above the Law, a legal website that covers all of the gossip and business of the legal profession. Prior to that I wrote about politics. I used to be a lawyer, but I quit that profession in lieu of stripping naked and lighting myself on fire. I received a degree in Government from Harvard University because I enjoy pain, and a J.D. from Harvard Law School because I dislike change. I’m also a Met fan (pain + born in Queens).

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