Archive for the ‘Race’ Category

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.

Choosing Equality: Brown v. Board of Education After a Half-Century

Written by Robert Justin Lipkin on April 3rd, 2009

Congratulations to Professors, Robert L. Hayman, Jr. and Leland Ware on the publication of their new book Choosing Eq978-0-271-03433-11.jpguality: Essays and Narratives on the Desegregation Experience. Choosing Equality is an excellent collection of articles celebrating the fiftieth anniversary of Brown v. Board of Education, the Supreme Court decision overturning segregation in public schools. In a nutshell, the book contains a multi-faceted collection of articles considering the importance of Brown in American constitutional law and society with a special focus on the Delaware experience..  Consider Harvard law professor, Mark Tushnet’s characterization of the collection, focusing especially on the Delaware experience. “This splendid collection combines reminiscences and essays tightly focused on Delaware’s experience with segregation and desegregation and more general essays on the meaning of Brown v. Board of Education to provide readers with a well-rounded understanding of the experience of desegregation in Delaware and, as important, around the nation.” For purposes of full disclosure, one of the essays in this collection–“Haunted by Brown”–is mine. The volume can be purchased here.

No Town Like Motown

Written by Rebecca Zietlow on March 12th, 2009

In many ways, the city of Detroit, Michigan, embodies the American dream – and its failings.  In the Twentieth Century, Detroit was a center of industry – and not just any industry.   The American romance with the automobile is centrdetroit-skyline.jpgal to the American dream, and for much of the Twentieth Century, most of our cars were made in or around Detroit.  Automobile enthusiasts looked forward to the Detroit auto show every year, and one need only scan the titles of popular songs to understand how much we loved cars made in Detroit – Mustangs, Cadillacs, Mercuries, the list goes on and on.  Of course, the cars made in Detroit were not just important in popular culture – they also provided thousands of people with well-paying jobs.  As a result, immigrants flocked to Detroit from other countries and  African Americans migrated from the south of this country, fleeing Jim Crow and seeking a new prosperous life.  Detroit became the center of the union movement, and automobile workers prospered.  Until the mid-1960s, Detroit really was a city in which the American dream came to life for thousands of people.

The decline of Detroit is an all-too-familiar story.  The race riots in the 1960s, the white migration to the suburbs, the arrival of Japanese cars, and the decline of the American automobile industry.  GM was once the number one employer in this country, but GM, and its well-paying union jobs, has now been replaced in that role by Walmart and its low-paying no-benefits positions.  To look at how the American dream has failed so many workers in this country, one need only look at Detroit.  In these dark days of economic recession, no place is darker than Detroit.  GM and Chrysler are on the brink of economic disaster, and the third of the Big Three, Ford, is struggling as well.  The rate of unemployment in Detroit is over 10%, and it is one of the cities worst hit by the housing crisis.  I have heard reports of houses selling for as little as $100 in Detroit.

Ironically, the low cost of housing in Detroit is also cause for a strange sort of optimism.  Artists have started buying houses in Detroit, moving from more prosperous cities like Chicago to find a place they can afford to live.  The sheer economic devastation in that city thus leaves open the possibility of a new urban colony with renovated housing, green energy, community gardens, and artistic renewal.  Sound crazy?  Maybe, but there is that spirit about Detroit, that spirit of hope and optimism that reflects the remnants of the American dream.  The 1960s were a decade of turmoil and racial strife in Detroit, arguably the beginning of the downward spiral that is culminating today.  But they were also the decade of Motown music.  Could artists alone save Detroit?  Of course not, but we also can’t expect the automobile industry alone to do the job.  Cities like Detroit need imagination and vision, small businesses and “knowledge jobs.”  For that reason, this new migration of artists to Detroit may be what’s needed to start the city moving in a new direction.

Same-Sex Marriage & the African-American Community

Written by Robert Justin Lipkin on March 10th, 2009

One of the saddest features of the controversy over same-sex marriage, in my estimation, is the African-American community’s overwhelming opposition to legitimizing this practice. Despite the critical constitutional decision in Loving v. Virginia banning laws against misc26e5e015c7540e7e.jpgegenation which in one sense lies at the core of the struggle for civil rights, many African-Americans simply reject the comparison between same-sex marriage and inter-racial marriage. While there are descriptive differences between the two social practices, to be sure, the important question is whether there are significant moral and constitutional differences.  Many in the African-American community, as in White America, oppose same sex marriage for religious reasons. The question is whether our social institutions can or should be controlled by a majority’s religious beliefs. In other words, one way to conceptualize this issue is whether republican democracy can permit a majority to control the character of and accessibility to such social institutions as marriage. Recently, and for the first time, the national board of the NAACP has taken an active role in supporting same-sex marriage. Perhaps this indicates a change in the African-American community’s opposition. The important point, it seems to me, is not whether everyone should regard same-sex marriage in the same manner or see no7a638017eef418b0.jpg significant difference between same-sex marriage and conventional marriage. Rather, true democrats must be prepared to embrace social institutions and keep them open to the widest number of citizens. Does that preclude constraints on social institutions? No at all. It does preclude, however, placing constraints on social institutions that can only be explicated in terms of idiosyncratic features of particular belief systems, (group-relative beliefs systems) that are not shared with other citizens generally. Group-relative reasons must not trump community-wide reasons, especially when doing so excludes minority access to social institutions and practices.  Just what counts as a group-relative reason as opposed to a community-relative reason is not easy to discern.  But that’s where the controversy should begin.

Racism Is Not A Problem In America! No, Not At All!

Written by Robert Justin Lipkin on March 2nd, 2009

If one requires more evidence that racism is alive and well in the American Republic consider the case of the Dean Grose, the former Mayor of Los Alamitos, CA, ws-watermelon-large.jpgho sent to friends a “cartoon” of the White House with watermelons on the lawn and the caption ‘No Easter egg hunt this year.’ Cute? Not very! Because the Mayor was exposed by one of the recipients he has decided to step down.  It is precisely this penchant for finding humor in degrading racial stereotypes that contributes to the perpetuation of American racism. Last week, ECA posted an item on a speech by Attorney General Holder condemning many Americans as cowards for resisting a dialogue about race in American society.  How much evidence would one have to garner to show that such a dialogue needed in the sense that we will never successfully work ourselves through the morass of racial hatred until we take ownership of our racist past? Most white Americans, and some African Americans, are simply in a gross state of denial. I suppose the best interpretation of this denial is that the origins, operations, and persistence of racism is just too much responsibility to bear.  Oh yes, I know you’re not responsible for racism.  Your family came to American shores only after slavery and/or segregation were eradicated.  But consider the benefits you received simply by being white in a society that was born in slavery and racism? Moreover, if we regard the American community to be a real community, each of us must take responsibility for the community’s wrongs just as we can be proud of the community’s good deeds. In any event beginning a conversation about race and related matters is long overdue.

Rupert Murdoch “Apologizes”?

Written by Robert Justin Lipkin on February 24th, 2009

Rupert Murdoch apologized for the racist cartoon printed in the New York Post last week. Here’s the best he could do:

As the Chairman of the New York Post, I am ultimately responsible for what is printed in its pages. The buck stops with me.

Last week, we made a mistake. We ran a cartoon that offended many people. Today I want to personally apologize to any reader who felt offended, and even insulted.

Over the past couple of days, I have spoken to a number of people and I now better understand the hurt this cartoon has caused. At the same time, I have had conversations with Post editors about the situation and I can assure you – without a doubt – that the only intent of that cartoon was to mock a badly written piece of legislation. It was not meant to be racist, but unfortunately, it was interpreted by many as such.

We all hold the readers of the New York Post in high regard and I promise you that we will seek to be more attuned to the sensitivities of our community.

A more diverse editorial board and news staff might have prevented this cartoon from ever being published. That’s just one of the positive practical effects of racial diversity. When will Americans of good faith say enough to racist jokes, cartoons, and innuendos? One thing is for sure: it won’t happen until contemporary Americans take responsibility for the racism of the past and the present. To do so, we must transcend our rationalizations, denial, and moral cowardice.

“A Nation of Cowards”?

Written by Robert Justin Lipkin on February 23rd, 2009

Race has played a monumentally influential role in the precise character of American constitutionalism as well as in the social history of the Republic. slavery to the present, white Americans have enjoyed an enormous advantage over African Americans, indigenous peoples, and others whose skin color wasn’t politically correct.  As Attorney General Eric Holder puts it in his recent controversial speech, “[t]o get to the heart of this nation, one must get to its racial soul.  Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and I believe continue to be, in too many ways, essentially a nation of cowards.” Holder’s point seems to be that the atrocious treatment of African Americans has caused even well-intentioned whites to avoid talking about the role race still plays today in the American experiment. He chides us to contemplate that in fifty years there will be no majority race in America and that a dialogue about race is necessary to unleash a powerful force for good in a racially diverse society.

In my view, many white Americans seem incapable of recognizing that the responsibility for contemporary racism is our responsibility. White Americans have benefited from slavery and segregation, and continue to benefit from racism. Yet, we as a people seem to believe that our current racial relations are unencumbered by the effects of the past. We often reject this responsibility by insisting that other racial, ethnic, and religious groups were discriminated against as well as African Americans as if the discrimination against the Irish, Italians, or Jews, say, was more or less equal to American racial apartheid.  Or by insisting that since our ancestors lived elsewhere during all or some of the atrocities of America’s racial past, contemporary Americans have nothing to do with American racism. Alternatively, our complaint sometimes seems to be that although white Americans historically have perpetrated genocide against African Americans and other racial groups, now when de jure racism is past, there is no need for dialogue about race. So thorough is our denial that the notion of a dialogue about race makes us wince. Why bother rehashing old stories of racial injustice when we live in a different world where African Americans are clearly equal to whites. Perhaps, it is such denial that Holder calls cowardice.  If Americans are not cowards regarding race, we need to explain why a conversation about its role in contemporary American society frightens us to such a great extent. This question needs to be satisfactorily answered if one rejects the Attorney General’s comments.

The Persistence of Sociopathic Racism

Written by Robert Justin Lipkin on February 20th, 2009

Expect the remnants of sociopathic racism—racism without a sense of shame—to persist even throughout the tenure of one of the most qualified individuals ever to assume the presidency, and, who is also black. Barack Obama’s ascendanc400http-dyimgcom-a-p-ap-20090218-captea1cf7fd72734031a84bdce41da4f654ny_post_cartoon_nyr101.jpgy to the presidency has hit the failsafe mark of no return to American apartheid.  Generations of white and black kids will develop in a world where the question of whether an African American can reach the presidency has been answered and the ramifications of this (symbolic) triumph will filter throughout the various walks of life having nothing to do with politics.  I am convinced this is the trajectory of Obama’s victory. Fortunately, it is now part of the hard wiring of American society. Unfortunately, that does not mean that sociopathic racism is dead.  Quite the contrary, sociopathic racism will continue to use the symbols of racial apartheid to denigrate, insult, and offend African Americans, but this time it will try to camouflage its message in mixed racial symbols. Consider the above cartoon. Three venomous racial symbols are unarguably present. First, there is the allusion to a black man (who just happens to be president of the United States) as a chimpanzee. Second, the cartoon evokes the double-image of assassinating (lynching) a black man black as well as assassinating the president. Third, the cartoon portrays police brutality against blacks endemic to American apartheid. No amount of rationalization can excuse this grotesque image as referring to a tragic incident earlier this week when a domestic chimp viciously attacked a friend of the chimp’s owner and was shot and killed by the police. That dog (chimp?) won’t hunt. The reference to the cartoon’s chimp as intimately associated with writing the stimulus bill forecloses that analogy. We will as a society never be rid of racism until those claiming not to be racists take responsibility for expressions of their sociopathic racism.  The responsibility here squarely lies with the cartoonist, but even more importantly, with the editor of the New York Post where the cartoon first appeared polluting America’s public culture. Indeed, despite the newspaper’s weak, unpersuasive apology, the editor should resign.

Multiple Voices in Dream City

Written by Robert Justin Lipkin on February 16th, 2009

The novelist, Zadie Smith, has a beautiful piece in the New York Review of Books on the multiple voices of biracial individuals.  Indeed, once articulated we can discern multiple voices in everyone or at least those courageous enough to listen to their own multiple and diverse narratives. Here she describes a metaphorical place, Dream City, where multiple selves prevail, her own as well as President Barack Hussein Obama’s.

It is a place of many voices, where the unified singular self is an illusion. Naturally, Obama was born there. So was I. When your personal multiplicity is printed on your face, in an almost too obviously thematic manner, in your DNA, in your hair and in the neither this nor that beige of your skin—well, anyone can see you come from Dream City. In Dream City everything is doubled, everything is various. You have no choice but to cross borders and speak in tongues. That’s how you get from your mother to your father, from talking to one set of folks who think you’re not black enough to another who figure you insufficiently white. It’s the kind of town where the wise man says “I” cautiously, because “I” feels like too straight and singular a phoneme to represent the true multiplicity of his experience. Instead, citizens of Dream City prefer to use the collective pronoun “we.”

Dream City is liberating. It removes the enormous pressure of singularity and society’s penchant for unity in one’s personality and character. Smith presents the issue in the context of biracial individuals, but she is completely aware how this issue of multiplicity and singularity is a universal feature of civilization. For those interested in the philosophy of the self and the so-called “social construction  of the self” this article is a treat.