Wednesday, May 27, 2009

First Jewess selected to serve on Supreme Court

Not really. But how different would that headline have been trumpeted Ruth Bader Ginsburg's appointment in 1993 to replace Byron White be from the banners offered up this morning by arguably the nation's three leading and, for the sake of argument, "serious" daily newspapers?

"Obama Chooses Hispanic Judge for Supreme Court Seat"

-- New York Times, 5.27.09
-- Wall Street Journal, 5.27.09
-- Washington Post, 5.27.09

Now compare those headlines to the one in this morning's USA Today, which, with the exception of fantasy sports junkies, is no one's idea of a "serious" newspaper:

I don't think it was any real secret that President Obama's choice to succeed David Souter was going to be a woman and/or have ancestral roots beyond the English-speaking United States. Fine. Obama has as much right to appoint persons of Chinese, Japanese, Russian, Spanish or any other ancestry or heritage as President Bush II had to appoint wealthy white men of Anglo-Catholic ancestry (Chief Justice John Roberts) and Italian-Catholic ancestry (Samuel Alito).
Judge Sonia Sotomayor is the child of Puerto Rican parents, which makes her a woman of Puerto Rican heritage. As a U.S. territory, Puerto Rico is a different than Mexico, which is a different country than Brazil, which is a different country from Columbia, which is a different country than El Salvador . . .
Just like Ireland is a different country than Italy, which is a different country than Scotland, which is a different country than Germany, which is a different country than Sweden, which is a different country than Great Britain . . .
And yet, the major mainstream newspapers did not see fit to identify the "ethnic" heritage of either Roberts or Alito when they were appointed to the Court in 2005. Here was the Post's headline on Bush's appointment of Roberts:
"Bush Choose Roberts for Court; Appeals Judge for D.C. Has Conservative Credentials"
-- Washington Post, 7.20.05
And Alito:
"Alito Nomination Sets Stage for Ideological Battle"
-- Washington Post, 11.1.2005
The Times offered a similar assessment, noting that Bush, "In Search of Conservative Stamp, Nominates Roberts." After Chief Justice William Rehnquist died and Bush decided to upgrade Roberts's nomination to replace him, the Times said: "President Names Roberts As Choice for Chief Justice."
Quibble with the insertion of "conservative stamp," (Times) or "conservative credentials," (the Post, always a good thing, since no "serious" person in law or politics can be "partisan," only "bi-partisan") if you are so inclined. But there was no mention of either Roberts's or Alito's "ethnic" heritage in any of the Times or Post articles about their appointments even though they, like Sotomayer, have ancestry that reaches beyond U.S. borders. In fact, we all do. Once, sometime ago, I was attending a conference at the American Enterprise Institute, a place so conservative that it considers former federal judge and failed Supreme Court nominee Robert Bork both a "thinker" and a "mainstream" one at that. The speaker was waxing on about the importance of tradition, history, the Framers and so on in any "respectable" constitutional jurisprudence, the traditional right-wing code for a jurisprudence that protects the privileged (i.e., the Bushes, John Roberts and a generally white class of moneyed and professional people who generally frown on any change that might allow others to compete with them) and the pissed (i.e., Sarah Palin, Pat Buchanan and the various wing nuts who confuse their success with the power of the "privileged" to protect their status by making rules excluding minorities and the less powerful from competing with them for working and middle-class jobs; and, of course, the notion that religious minorities, women and historically discriminated against groups have a claim to cultural equality). He then mentioned something very odd about the need for "traditional" Americans (i.e., Palin's "real" Americans) to guard against the "threat" of "multi-culturalism," more right-wing code for non-whites who might have other ideas about what the Constitution says about liberty and equality than merely protecting those in power (i.e., the willingness of the Bushes, Robertses, etc., to concede some bread crumbs to the pissed in exchange for their commitment to serve as protectors for their considerable privilege). Topping it all off, the speaker then mentioned his credentials as a "Mayflower descendent," and how he worried what was happening to "his" country. He received a standing ovation.
Then came question time. I was at that stage of my life when I took these sorts of things seriously, and I thought I'd ask a question of this "scholar," thinking I'd get an honest answer.
"As a descendant of the Mayflower," I began, "you are still the descendant of immigrants, since the Mayflower came from England, and arrived at the shores of a nation that was already inhabited by Americans. What is any different about contemporary immigration and multi-culturalism than the multi-cultural experience brought by the English citizens aboard the Mayflower compact?"
I thought it was a good question; no one else did, including the speaker. The room went silent and I got a lot of steely-eyed looks by the upstanding, all-white, culturally sophisticated men and occasional woman in the audience. I'm not sure what was worse, comparing the indigenous population in America in the 17th century to contemporary American conservatives besieged by these new strange immigrants who were ruining the country, or suggesting that the Mayflower voyagers were immigrants simply because they came to this country from somewhere else. I've always found it amusing that the old "societies" like the Daughters of the American Revolution consider themselves guardians of "traditional" American values, when their ancestors openly rebelled against their colonizers with an incredibly radical document that emphasized "natural" rights and the spirit of "liberty" as their inspiration. I suppose when white people rebel against white people, there's some justification to it. When non-whites, some of whom may not speak English (or American-English, to be more precise), question the politics and values of a largely white Establishment, the motives are less pure, often unpatriotic and sometimes . . . frighteningly diabolical.
Notice, too, how conservative judges like Roberts, Alito, Kennedy, Rehnquist and Scalia all begin with the assumption from much of the mainstream media that they are tied to the "law" and respect its commands, even if that means deciding cases in a way that, if left to their own devices, they might decide differently. Liberals, especially women, African-Americans and now, with Sotomayer's nomination, persons of Spanish-speaking ancestry, are often derided for acknowledging that their "experience" affects their views on the law, especially matters of constitutional law touching upon individual rights. In this distorted but quite common view, John Roberts approaches all matters before him without bias -- he is, in his own words, an umpire -- whereas a Sotomayer, a Ginsburg or Thurgood Marshall are animated not by a reverence for the law, but by the need to stick it to The Man, lest He stick it -- again -- to minorities, women and other "victims" of the politically and economically powerful. Somehow, a wealthy white man does not bring his "life experience" to the bench; only women and minorities do. Unless, of course, your Clarence Thomas, who, according to conservatives, might be the only African-American to really understand and appreciate the Constitution. Forget Thurgood Marshall -- he was just a policy-maker who -- all at once now -- legislated from the bench.

* * * * * * * * * *
I don't know much about Sonia Sotomayer, and the handful people I've talked to or corresponded with today who practice law in the federal courts don't know that much about her either. From what I have learned by going to sources about her life and work, she is not at all to the left as Roberts and Alito are to the right. That is something else remarkable about our post-Bork confirmation environment. The Court, for all its bluster, has not really permitted the Court to move too far right since the mid-1980s. Yes, yes, there are some awful criminal procedure decisions, the clueless and insensitive 2007 Parents Involved voluntary de-segregation case that simply flat-out ignored the tortured history of race in the United States and some unfortunate yet ultimately harmless decisions on the First Amendment (the Bong Hits case from 2007). Roberts, by the way, wrote the Court's opinions in the race and student free speech cases. The reason for this is fairly simple: the Court does follow public opinion. Rare is the case when it doesn't. And the Court knows, Scalia and Thomas not withstanding, that great middle of America does not want to retreat on the democratic march that the Court has sometimes led and sometimes followed since the New Deal. Souter knew this; O'Connor knew this; Kennedy knows this when pressed; and time will tell whether Roberts and Alito know it. I'm still on the fence about Roberts. He certainly is as conservative as the Bush administration might have hoped he was when he was nominated. But he is also a career apple-polisher who might think twice about making a decision that could cost him his reputation among the Washington establishment he has spent his adult life embracing, cultivating and protecting. Roberts is not an original or powerful thinker. He's certainly smart, smart as in National Honor Society smart, not as in, "Wow, I've never thought about it like that before," smart. Like Scalia, he is accomplished debater with an impressive ability to articulate his positions. Unlike Scalia, he possesses a sense of tact and an ego that enjoys public adulation rather than cult-like devotion. Time will tell.
Obama could have appointed a real liberal, a judge or academic with some real power and creativity. Instead, intimidated by a right-wing noise machine that is already making the usual noises about Sotomayer as the worst practitioner of "liberal judicial activism" ever who will bring about the End of the World, Obama went the safe route, noting that a Republican, President Bush I, appointed her to her first federal judgeship before President Clinton appointed her to the Second Circuit Court of Appeals. You wouldn't think the Democrats blew the Republicans out of the water in November from the way that the largely anonymous and unaccomplished "judicial conservatives" set the parameters for Obama's appointment. I suppose when Dick Cheney, perhaps the most unpopular man in America, if not the nuttiest, can define our contemporary foreign policy debate and still command an audience with the "tough" journalists of the mainstream media, nothing should surprise me.
But let's remember something. Simply because grocery stores decide there is something called an "ethnic" foods aisle doesn't mean that designation makes any sense. I've never been grocery shopping in Mexico or Poland, so I don't know if they confine such "American" staples as mayonnaise, white bread, ketchup, hot dogs and Captain Crunch to an "ethnic" foods ghetto somewhere near their household cleaning products. But since salsa now outsells ketchup as America's favorite condiment, it might be time for the nation's deep-thinkers and opinion-setters to come to grips with the reality that, at some point, appointing a wealthy, white Christian man to serve on the Supreme Court in 2005 is just as much of an exercise in "identity politics" as appointing the daughter of Puerto Ricans in 2009.

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