Tuesday, July 21, 2009

Empathy, Racism and Our Highest Court

The Sotomayor nomination has taught me two things. The first is that the American public might in fact be dumb and dumber. The second is that Chief Justice Roberts might well be a racist.

The first insight came to me soon after the nomination became public, and the "wise latina" comment gained currency. Her comment was this: she "hope[d] that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." If I understand her correctly, these words must mean that judicial experiences affect the way one understands legal issues and arrives at legal conclusions.

If I am right about that, then I wonder: is that it? To say that the depth of one's experiences enrich one's approach to judging should not be controversial. This is true for any judge, whether Thurgood Marshall or Clarence Thomas, Sandra Day O'Connor or Earl Warren.

Does anybody seriously dispute that?

Yet a who's who of conservative punditry assailed her as a racist.

Is anybody out there stupid enough to believe that she is?

The second insight flows directly from the first. Recall here President Obama's stated intentions to appoint judges with "empathy" for the downtrodden. To the aforementioned critics, this is code for appointing activist judges.

To this charge, you can either laugh or cry.

This is actually an easy one. Consider poor, downtrodden Frank Ricci, the firefighter who studied for hours on end, spent a good chunk of money, aced his test, yet was denied a promotion after the city of New Haven threw out the test because of its racial impact.

The Supreme Court sided with Mr. Ricci, in a 5-4 decision delivered by Justice Kennedy and signed by the four remaining conservative justices.

To understand Ricci, it might help to read President Obama's words. Here is what he said:
You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

On this argument, it appears that we also need somebody who's got the empathy to recognize what it is like to be a white firefighter in a world where the rules are stacked against you. Or something like that.

In fact, to read the Court's race jurisprudence post-City of Richmond v. Croson is to see a Court empathetic to the travails of white people, innocent victims trampled at the hands of a racist elite. It is hard to read it any other way.

I get it: it is empathy when applied to rulings we disagree with, but strict constructionism and "fidelity to law" when we agree.

Is anyone stupid enough to believe that?

This brings me to the Chief Justice and his record while on the Court. "In every major case since he became the nation’s seventeenth Chief Justice," wrote Jeffrey Toobin, "Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
To this list, we can add that Roberts has also demonstrated deep antipathy towards the interest of persons of color, on issues as far ranging as voluntary racial integration plans, voting rights, or hiring and promotion.

Which leads me to no other conclusion: if Judge Sotomayor is a racist for believing in the value of judicial diversity, what does his track record make Chief Justice Roberts?