Archive for the ‘United States’ Category

Is the Health Care Reform Act a Civil Rights Act?

Written by Rebecca Zietlow on March 23rd, 2010

59971869Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

The End of “an End of an Era”

Written by Rebecca Zietlow on September 3rd, 2009

As I watched Ted Kennedy’s funeral and listened to the coverage of his life and death last week, I heard the phrase “the end of an era” so many times, it convinced me that people should stop using the term “the end of an era.” What does an “era” mean? According to the Oxford English dictionary, an “era” is defined as “a system of chronology reckoning from a noteworthy event.” Perhaps the commentators mean their observation to refer to the era beginning with the birth of Joseph Kennedy Sr.’s children. True, a genertion of Kennedy brothers had passed away now, ending the era of that generation of the Kennedy brothers. True, many of us (including myself, born the year that Ted Kennedy entered the Senate) cannot remember a time when Ted Kennedy was not in the Senate. True, thousands of liberals in America can no longer count on Senator Ted Kennedy to always speak for us in the Senate, and never apologize for being liberal. But what is the point of calling this an “era?’ What more do we learn from this phraseology?

Perhaps those who called Ted Kennedy’s death “the end of an era” intend announce the end of liberalism in America that was most prevalent in the 1960s but lingered until Ted Kennedy’s death. If thatmpphpH7AOUT[1]t is the case, then I must, most emphatically, object, not only to the phrasing but to the sentiment behind the phrase. There remains a strong progressive tradition in the Democratic party, shared by many members of he general public who dop not affiliate themselves with that party. The progressive tradition was most recently re-affirmed by the election of President Obama (with Ted Kennedy’s crucial support) and his numerous Demcratic colleagues in Congress. It is reaffirmed in the polls that show that despite months of the healthcare industry spending over a million dollars a day to fight health care reform, the American public still strongly supports it, and still demands a change to our health care system. So, let’s put an end to this talk about “the end of an era” and concentrate on what we need now. There’s never an end of the era of need for the poor and middle class folks in this country who demand health care reform.

Health Care: Canada v. the United States

Written by Robert Justin Lipkin on August 28th, 2009

From the Canadian Medical Association Journal

EDITORIAL
August 24, 2009

America, embrace health care reform

If power, wealth and talent alone determined how a nation serves the needs of its people, the United States would be second to none in health care. Yet America’s health care system clearly ranks behind those of Canada and most other developed countries. The precious opportunity that US President Barack Obama’s health care reform proposals offer to Americans is currently threatened by partisan disunity, which could once again deny Americans the quality and accessibility of health care that they should receive.

Canada’s “socialist” health system is the favourite whipping boy of antireform lobbyists, who employ fear-mongering and myths about rationing, waiting lists and lack of choice to persuade the American public to accept their status quo as better. As Canadians, we agree that Canada’s health system is not perfect. We have said so many times in CMAJ. Nevertheless, it takes only a few comparisons to show how much better Canada’s health system is than that of the United States — and how much Americans could hope to gain from embracing reform.

Consider the following statistics, taken from the Organisation for Economic Co-operation and Development’s health data for 2006.1 We start with the most basic outcomes any health care system is supposed to optimize: life and death. The life expectancy of an average American is nearly three years shorter than that of an average Canadian (78.1 vs. 80.7 years). That survival gap starts from the moment of birth: infant mortality is higher in the US than in Canada (6.7 vs. 5.0 deaths per thousand live births). Yet the US economy spends — or increasingly, borrows — more than half again as much for health care as does Canada’s (16% vs. 10.1% of the economy). And despite spending so much more, Americans get to see their doctors a third less often than Canadians (3.8 vs. 5.8 doctor visits a year).

While these differences result from many factors, the inescapable truth is that, compared to Canada, America is achieving poor value for money from its health care system, and that is killing Americans. The potency of that truth is the reason why antireform lobbyists are now turning to attack Canada’s system.

As Republican strategist Dr. Frank Luntz puts it, the opposition’s strategy rests on “health care denial horror stories from Canada.”2 Yet the attacks are so absurd and full of fantasy that they would be laughable — if not for the fact that many Americans believe them. Canadians do not, in fact, conduct euthanasia on our elderly; If we did, then Canadian life expectancy would hardly be longer than American.  There is no such thing as a “death panel,” neither in Canada’s health care system, nor President Obama’s reform proposal.  Nor is it true that in Canada, the system imposes a government bureaucrat between a patient and their doctor to decide what care to provide.  On the contrary, that is a routine feature in America’s system, where doctors and patients struggle endlessly with insurance company “bureaucrats” for payment.

The only accusation that has even a shred of evidence, albeit heavily misrepresented, is that Canadians face waiting lists for health care.  But that does not mean Canadians routinely die waiting for tests and operations, because the lists are for elective procedures, such as joint replacement surgery, and not for emergency or life-saving care.  Prioritizing actually helps ensure the serious cases are seen first.

We cannot condemn strongly enough the intellectual dishonesty of the lobbyists and politicians whose distortions of Canada’s health system camouflage their appalling rejection of reform for uninsured and underinsured Americans. All 32 million Canadians are insured. To be sure, some are unhappy to wait and some are denied treatments it would be better they had; no system is perfect or pleases everyone.  But even the least fortunate Canadian is better off than the 47 million uninsured Americans, for whom no treatments are covered and for whom the wait is forever, unless they can afford to pay the health care bills.

If America wants to improve its citizens’ health — as it must — then some negative attitudes need to be turned around.  Here are some.

First, the US$1 trillion that the Obama administration says it will cost to cover America’s uninsured over 10 years is not a burden; per capita, it is a screaming bargain. Canada spends about US$156 billion each year to cover fewer people than America’s uninsured. For Congress to hesitate at the outlay is penny-wise and pound foolish, when economic studies suggest that the cost of not investing could be greater still, owing to lost productivity and lost jobs, provided that expanded coverage goes hand-in-hand with cost-containment measures.3,4 Still, when Congress last year dropped US$700 billion at a sitting to bail out Wall Street, it is hard to understand why a lesser amount for public health insurance provokes so much anxiety.

Second, all health care systems ration care — including the US system. The only cruelty in rationing health care comes in doing it the wrong way. When America’s private insurers routinely refuse to cover persons having pre-existing health conditions, that is the worst kind of rationing, aimed mercilessly at those who need medical care most. In Canada, nobody is denied coverage for pre-existing conditions, and there is no cut-off age. Instead, Canada aims to ration medically futile treatments. Where we occasionally make mistakes is in rationing new treatments that in hindsight prove to be useful, not futile. In Canada’s deferential culture, we correct such mistakes slowly by pressuring the public insurer. In America’s litigious culture, suing the public insurer is likely to correct such mistakes more rapidly. That difference, we believe, is likely to make rationing fairer in American than Canadian hands.

Third, certain members of Congress need to get over the bogeyman of “socialist” medicine. Thinking about the military may help. All of America’s closest NATO allies, including those, like Canada, who fight alongside the US in Afghanistan, receive “socialist” medicine back home. Furthermore, when Americans join the military, they qualify for public, government-run health insurance that provides access to care at Veterans Administration hospitals. When Texas Republican Congressman Louie Gohmert described Canadian health care as “a bureaucratic, socialistic piece of crap,”5 was he also implying that America’s soldiers are getting bureaucratic, crappy care?

Fourth, freedom-loving Americans who value making their own medical and economic choices ought to be outraged at how the status quo restricts their choice and freedoms. Because private insurance plans are usually provided through one’s employer, changing jobs often means losing existing coverage and having to re-qualify for new coverage (if one can) under a new plan — a risky move.  Private insurance has become the freedom-destroying leash that ties Americans and their families to jobs with less pay or satisfaction than other opportunities that might exist. Canadians, in contrast, can change jobs in our universal, portable public system and stay insured throughout.

Fifth, and perhaps most importantly, America has reached an economic tipping point where the “public option” is inevitable, if only because households (read: voters) find the current system’s costs unsustainable. Canada’s first meaningful foray into public insurance happened in 1940s Saskatchewan, when public anger boiled over as health bills forced families — including many in the middle class — into bankruptcy. That same tragedy is replaying in America, where more than half of personal bankruptcies are medically related.6 This number will only worsen as health costs rise in America, as the population ages and as the US dollar loses ground as a reserve currency. Even if Congress and President Obama fail to achieve a public insurance option this year, in the long term the smart money is against any political party whose name becomes attached to these personal medical bankruptcies.

If Americans find the courage to embrace change, they could enjoy health care that is second to none. Canada’s example has many positive lessons — and a few negative ones — to teach reformers. Lamentably, in the current partisan circus playing out on Capitol Hill, analysis is short and sophistry of the Louie Gohmert variety is long. America must move beyond this if it ever hopes to be able to provide the best care for all its people.

Amir Attaran LLB DPhil
Associate Editor, Editorials

Matthew B. Stanbrook MD PhD
Deputy Editor, Scientific

Paul Hébert MD MHSc
Editor-in-Chief
CMAJ
With the Editorial-Writing Team (Ken Flegel MDCM MSc, Noni MacDonald MD MSc and Laura Eggertson BA)

Cite as CMAJ 2009. DOI:10.1503/cmaj.09-1511

REFERENCES (Omitted)

President Obama and Health Care in Four Acts

Written by Henry L. Chambers, Jr. on August 19th, 2009

President Obama will get the health care reform he wants.  If you want to know what it will look like, look at the principles he laid out at the start of the process.  We have seen this show before and I suspect I know how it will end.  The typical plot has four parts.  In Act 1, Obama sets out a principle.  In Act 2, critics attack him and his principle while supporters fret about whether he is doing the right thing.  In Act 3, when it appears as though the plan is about to fail, Obama gets to work and miraculous (or mundane) things occur.  The people rise up and demand that Obama’s principles win out or Democratic lawmakers decide that Obama’s plan is worth fighting for or Obama wades into the fight directly.  In Act 4, Obama wins and the result looks remarkably like what he proposed from the start.

We saw this in the campaign – he wanted to win some Southern states (unthinkable) and a broad mandate and did.  We saw this on the stimulus bill – he wanted $775 B and got $767 B.  We saw this on Sotomayor – shtmpphprXo1Fv[1]e was the top candidate from the start and remained so even after we were treated to a quasi-public display of him interviewing other people.   All President Obama needs is time for Act 3 to play out as he wants, with supporters of his principles standing up and showing that they are willing to fight.  Act 3 is happening now.   When Obama put public option on the table or chopping block, that was him getting to work.  He made it clear that it is time for supporters to stand up and be counted.  I suspect that they will demand a public option and many of the other suggestions found in President Obama’s original list of principles.  President Obama will return to his list of principles and may push them directly.  At that time Republicans will begin to claim that President Obama is going to ram his health care reform down their throats.  It is also the time when President Obama will put the Republicans, and maybe some Blue Dogs, in a corner and ask them if they really want to kill health care reform when the people have demanded it.  The safe Republicans may take an ideological stand, but the Blue Dogs will be reminded that many of their constituents could use a bit of health care reform.  Either we get Act 4 and the president takes a bow or we get midterm elections dominated by health care reform.

What’s Wrong with Canadians?

Written by Robert Justin Lipkin on August 11th, 2009

For the life of me I can’t figure out why Canadians tolerate their government-controlled, socialized health care system. Americans would never tolerate waiting years for emergency surgery, government controlled physician-selection, paying exorbitant prices for prescription drugs, and a plethora of additional evils.tmpphpstmdWx[1] So what’s wrong with our cousins to the North? I suppose the problem began with Tommy Douglass, the premier of Saskatchewan in the 1950s who started such an evil system in his own province.  But why did the entire nation follow such madness, especially when they have  the exemplary model of a health care system to their south of which 80% of their southern cousins approve?  OK, OK, I’ve distorted some of the above information. Many (most?) Canadians would revolt if their health care system were transmogrified into our health care system. But then why are Americans lied to?  Does anyone know a balanced treatment comparing the virtues and vices of both Canadian and American health care systems, which includes such facts as these: (1) The United States spends 16% of its economy on health care but ranks 37th in the world in satisfactory health care, (2) Canada spends 17% on administrative costs, but the United States spends 31%, (3) In Canada waiting to see physicians can be longer than in the United States as can waiting for non-emergency surgery, (4) Over 40 million Americans have absolutely no health care, and when they get sick and go to the emergency room, their health care treatment costs everyone a small fortune, oh yes, I almost forgot, (5) In Canada everyone is covered under its health care system.  (See what taking health insurance companies out of the mix can do?) If anyone has a citation to an impartial comparison of the Canadian and American systems, I’d welcome receiving it at: RJLipkin@aol.com. Thanks in advance.

The Most Dangerous Supreme Court Case

Written by Rebecca Zietlow on July 23rd, 2009

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim broughashcroft_CV_20090519130315t by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

Racial Justice After Ricci

Written by Rebecca Zietlow on July 9th, 2009

As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination new-haven-minority-firefighters.pngin our country which has subordinated racial minorities, Ricci is just the latest in a line of cases where the Court makes it clear that it will apply the highest level of scrutiny to government attempts to remedy that history. What is a city like New Haven to do to attempt to provide more opportunities for upward mobility to government employees of color? Standardizes tests, like that in Ricci, could theoretically be useful to reduce the level of discretion in hiring and promotion decisions. Less discretion should mean less opportunity for race discrimination. Yet given that one of the many issues that plagues communities of color if poor public education, it is not surprising that job and promotion candidates of color don’t score as well on written standardized tests.

After Ricci, cities like New Haven better be sure that the test is valid before they use it, because afterward, it’s too late to discard the results no matter how discriminatory their impact might be. Could cities like New Haven try to remedy the racial disparity by giving extra points on the promotion scale to candidates of color? No way, the Court has made that clear. Theoretically, they could lobby their local government officials for help.  Yet under the current Supreme Court’s jurisprudence, it’s hard to see what those local officials can do, except as Bobby indicates below, hope that candidates of color can “pull themselves up by their bootstraps” and improve their situation on their own.

Out with a Whimper

Written by Rebecca Zietlow on July 2nd, 2009

The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue.  And, despite disparaging remarks and jokes during the oral argument over the case, eight members of the Court agreed that strip search of a 13 year girl alleged to have brought an Ibuprofen pill to school violated the 4th Amendment.  As many commentators have noted, the Court is moving to the right, but it could have moved a lot farther.

Why the whimper instead of a bang?  Could it be that members of the Court are influenced by politics?  The most interesting case to me is the strip search case.  Justice Ginsburg, the only woman on the Supreme Court, was open about her concern that her male colleagues were insufficiently attentive to the sensitivities of a 13 year old girl.  Did the fact that  another woman, Sonya Sotomayor, sits in the wings to be confirmed to the Court, have an impact of those colleagues as they mulled over that case?  Did the fact that Sotomayor is a person of color influence the members of the Court considering overruling the landmark Voting Rights Act even as conservative politicians were accusing Sotomayor of being a racist?  We will never know.

Why Sotomayor Is a Good Choice

Written by Rebecca Zietlow on May 28th, 2009

There are three reasons why I think Sonia Sotomayor is a good choice to be the next Justice on the United States Supreme Court.  First, her nomination is historic.  If confirmed, Justice Sotomayor will be the first Latina, the first woman of color, and only the third woman to serve on the United States Supreme Court (not to mention the first Supreme Court Justice to grow up in a public housing project!).  Second, Sotomayor is an incredibly accomplished, brilliant woman who is highly qualified for the job.  Third, Judge Sotomayor has the right temperament and philosophy for the Supreme Court today.

It is difficult to overstate the historic significance of President Obama’s choice of a Latina woman as his first nomination to the Susotomayor.jpgpreme Court.   To illustrate my point, consider this:   When I was a student at Yale Law School in the late 1980s, the law students held a one day strike for diversity, calling for diversity in the faculty, student body and law school curriculum.  To protest the fact that at that time Yale had never had a woman of color on the faculty, a classmate of mine created paper effigies of all the faculty members and hung them from the ceiling of the law school.  Hanging from the ceiling was a long row of white men, several white women, and several men of color.  No women of color.  Now imagine if my classmate had done the same with the United States Supreme Court throughout our history.  Out of 115 paper effigies (based on my unofficial count), 111 of them would be white men, two would Black men, and two white women.  Again, no women of color.

The fact that Justice Sotomayor would be the first Latina and the first woman of color ever to serve on the United States Supreme Court, and a person who comes from a low income background, matters because the Supreme Court makes decisions that affect all of our lives, including the 52% of us who are women and the 26% of us who are non-white.  It matters because life experience, including our gender, race and economic backgrounds, affects how all of us view the world, and how judges view the law.  This does not mean that Justice Sotomayor would always rule in favor of women, people of color (regardless of their gender), and poor people, who appear before the Court.  Her record on the lower federal courts makes this abundantly clear.  What it does mean is that Justice Sotomayor would bring a life experience to the Court that would enrich the Court’s consideration of legal issues and make the Court more connected to the impact of its decisions on all of us.

Second, Justice Sotomayor’s qualifications are outstanding.  She graduated at the top of her class from Princeton, one of the nation’s top universities and an incredibly competetive institution.  She excelled as well at Yale Law School, where she served on the Law Review.  Sotomayor has extensive experience as a prosecutor and as a private attorney, and 17 years as a federal judge.  I am incredulous that anyone could argue that Sotomayor lacks the credentials to be a Supreme Court justice.  These critiques simply have no foundation.  Sotomayor’s record speaks for itself.

Finally, I believe that Sotomayor has the right temperament for the Court at this time.  This is where I differ from those liberals who have argued that they would prefer someone with a stronger ideological focus.   By all accounts, Sotomayor is a liberal to moderate person who enjoys engaging legal arguments and listens to all sides before making decisions.  However, she is no shrinking violet and is not likely to be intimidated by the more conservative, more senior members of the Court.  (After all, the woman grew up in a Bronx housing project!!!)

Sotomayor’s record is also so far from the “liberal activist” label that conservative critics are trying to link to her that the label simply won’t stick.  It’s about time that we recognized that (as I have argued in previous columns) the only activism that has occurred in  the United States Supreme Court in the past twenty or so years has been conservative retrenchment against progressive political policies.  If confirmed, Sotomayor will bring strong experience, diversity, and a balanced approach to the law that belies that conservative activism.   As a person with progressive politics who is sick and tired of the activism of the conservative Rehnquist and Roberts Courts, I say, bring Sotomayor on!

The Ideal Supreme Court Nominee

Written by Rebecca Zietlow on May 7th, 2009

As a constitutional law professor who spends so much of my time analyzing Supreme Court opinions, I cannot resist opining on what I believe to be the most important qualifications of the next Supreme Court justice.  First, the qualifications which don’t matter as much to me: I would not apply any litmus test on any particular subject, and I neither expect nor particularly want the next Supremtmpphpeiswgm1.jpge Court justice to be able to restore the liberal activism of the Warren Court.  Instead, I agree with President Obama that the most important qualification should be empathy – the ability to understand and relate to the way that the law actually affects real people.  The current Supreme Court has shown a blind eye towards average working people in cases such as the Lilly Ledbetter case, instead consistently favoring the interests of big business.  The importance of empathy is one of the reasons why I argued two weeks ago that the President should appoint more women to the Supreme Court.  To be clear, this is not because I believe that women are inherrently more empathetic, but because Supreme Court justices, like everyone else, see the world through the eyes of their own personal experience.  Therefore, the more different experiences that the Justices bring to the Court, the better.   For the same reason, I hope that President Obama considers racial diversity in his decision-making process, and favors those with less privileged backgrounds.

The second most important characteristic of the ideal Supreme Court nominee would be that he or she has some respect for the political process, and for the ability of lawmakers to consider constitutional values and limitations when they are making laws.  The members of the current Supreme Court have shown a remarkable disrespect for legislatures, including Congress, for example striking down civil rights legislation in the name of separation of powers and sovereign immunity.  This disrespect may be due to the fact that none of the current members of the Supreme Court have ever held political office, and only one, Justice Stephen Breyer, has worked within that process, as special counsel for the Senate Judiciary Committee.  Such experience would not be a pre-requisite for the ideal Supreme Court nominee, but it would certainly be a plus.

Third, the ideal Supreme Court nominee whould have a good knowledge of history, especially United States history.  It should be a person who understands the momentous transformation that our country and our constitution underwent during Reconstruction, a person who appreciates the persistent and overwhelming prejudice that African Americans have suffered in our country since then.

Finally, the ideal Supreme Court nominee must be both young and healthy.  This observation is not “agist,” but pragmatic.  Supreme Court nominations are arguably the means by which the President makes the most lasting impression on the country, as both Presidents Bush recognized when they nominated young Justices who are likely to be around for many years.  I have every hope that President Obama will appoint an excellent, qualified person to the Supreme Court, one who can use his or her persuasive powers to start to move the Court away from its rightward trajectory of recent years.  Whoeever it is, I want that person to be around for a long time.