The Ghost of Clarence Thomas: Herman Cain, Sexual Harassment, and “High-Tech Lynchings”

Politico posted a story alleging that Herman Cain, who is running for the Republican presidential nomination, sexually harassed two female employees of the National Restaurant Association while he was head of the Association in the 1990s.  Given that Cain is running for the Supreme Court, this story immediately brought to mind the Clarence Thomas/Anita Hill dispute during Thomas’s confirmation proceedings to the Supreme Court and what, if anything, we have learned since then.  Thomas has publicly stated that he felt like he endured a “high tech lynching” and Hill, a respected law professor, also had her credibility and integrity attacked throughout the proceedings.  In the twenty years since Justice Thomas’s confirmation proceedings, I think that there are some powerful lessons that we (hopefully) learned that resonate in the Herman Cain controversy. 

The first is that men of power often abuse that power, and this is true regardless of race.  But black men who abuse their power (or are accused of doing so) have to factor in that it is going to be potentially more costly, even if the allegations are later proven to be false.  In fact, Justice Thomas referred to his confirmation hearings as a “high tech lynching” in part to give the impression that he was treated more harshly because he is a black man.  The reality is that there are still stereotypes about black masculinity that impact the public’s perception of black men who are accused of wrongdoing, independent of the actual truth of the allegations.  This has particular force in the context of sexual harassment, given that the stereotype surrounding black masculinity often turn on black men being portrayed as aggressive and sexually deviant.  Contrast this with Arnold Schwarzenegger, who was elected governor with 48% of the vote (with the candidate who came in second receiving only 32% of the vote) despite admitting to 25 years of sexual inappropriateness on various movie sets, but Justice Thomas was barely confirmed to the Supreme Court by a vote of 52-48.

The second lesson has to do with how the public treats the victims of black men who abuse (or are alleged to have abused) their authority.  What gets lost in the Clarence Thomas controversy is that his accuser is a well-respected law professor who was also crucified in the national media and by some leaders in the black community for telling her story.  There is a racial dynamic that is relevant when the harasser is an African-American who has “made it” and that success is potentially undermined by another African-American who should understand how difficult the journey is.  Thus, instead of Anita Hill’s background lending to her credibility, it was used to discredit her.  For this reason, I was very relieved to see that Politico opted not to publish the names of the women who filed sexual harassment complaints against Cain.  But I think that we should not be surprised if these allegations put an end to Cain’s frontrunner status to be the Republican nominee.               

Redistricting, Once Again, Comes to Court

We had a census. We had new districting maps. And now, like death and taxes, we have litigation. To date, redistricting-related suits have been filed in 28 states. To Justin Levitt, “[t]he sheer volume of litigation is pretty amazing.” In so doing, these legal challenges are “giving the courts, once again, a major role in drawing districts that could help determine the balance of power in Congress for the next decade.” 

Should anyone be surprised by this? 

The real question in all of this is what role the federal courts should play in this mess. The conventional wisdom ascribes to the courts the role of countermajoritarian saviors, saving the American voter from self-serving, entrenched politicians. Theories and standards abound, and come in all shapes and sizes, for how the courts should handle these questions. But this is very deceptive; easy answers are nowhere to be found. 

Remembering Bork’s Failed Nomination

Last Sunday was the 24th anniversary of the day when Robert Bork’s nomination was voted down by the Senate. Much has been written about this moment in history and its effects on the confirmation process by very thoughtful people. The debate belies easy answers. Not so for Joe Nocera. 

In a short piece, Nocera sought to put the debate to rest. Where did the confirmation ugliness that we presently see begin? To Nocera, it began with the relentless attacks by Democratic Senators and interest groups on Judge Bork. As a result, “[t]he next time a liberal asks why Republicans are so intransigent, you might suggest that the answer lies in the mirror.” 

I’ll say this: the piece piqued my interest. 

Judicial Engagement as the New Activism:

Linda Greenhoiuse has a terrific piece in yesterday's opinionator about the conservative campaign for a more activist conservative judiciary.  She quotes from a report from the Institute for Justice, a libertarian group, entitled "Government Unchecked: The False Problem of 'Judicial Activism' and the Need for Judicial Engagement." According to this report, the usual dichotomy between judicial activism and judicial restraint is a false one: 

“Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”

To the Institute, this means that courts are not doing enough.  For example, 

Of the 15, 817 new laws enacted by Congress between 1954 and 2002, the Court only struck down 103 (two thirds of one percent)

Of the 1,006,649 laws enacted by state legislatures, the Court struck down only 452 (less than one twentieth of one percent) 

Of the 21,462 regulations enacted by the federal government between 1986 to 2006, the Court only struck down 121 (half of one percent)

Of the cases it considered between 1954 and 2010, the Court overturned earlier precedents in only two percent of the cases

From these numbers, the authors of the report conclude that "the image of rampant judicial activism is false."  Needless to say, this also means no more rationality review for economic regulations.

I know, I know.  We are all shocked.

I am not sure whether the authors intend for us to take their report seriously.  But I have a few questions: 

Could anyone -- and I do mean anyone -- possibly fall for this? (anyone, that is, other than the two members of the 11th Circuit panel that struck down the individual mandate in State of Florida v. United States Department of Health and Human Services? -- check out page 104).

How long until Senators Sessions and/or Hatch manage to incorporate the term "judicial engagement" into their attacks on progressive judicial nominees?

Is it no longer possible to have a real debate about the role of the courts in democratic society without playing these silly games?

Justice Alito and the Art of Doing Justice

When I think about the qualities that inform Justice Alito's jurisprudence, a desire to "do justice" easily ranks at the bottom.  Not so for Adam Liptak, who argues that Alito "is alert to injustice, and he is a careful legal craftsman." I don't have a lot to say about Alito's legal craftsmanship, though I imagine that his colleagues might find the comment offensive, distracting, or even silly, if by it Liptak means to draw a distinction between Alito and his fellow justices (note the headline: "When fairness and the law collide, one jurist is troubled."  One jurist?  Shouldn't all jurists be troubled?). I am far more interested in the first quality.

Are we supposed to believe that Justice Alito is "alert to injustice?" What could that possibly mean?

Liptak's choice of examples is telling.  One is the case of a death row inmate who lost his chance to appeal when his lawyer missed a crucial filing deadline (Maples v. Thomas, discussed here).  Another is the case of a client whose lawyer gave him bad advice, which ultimately subjected him to deportation proceedings (Padilla v. Kentucky).  A third is yet another case where the lawyers missed a deadline (Holland v. Florida).  These cases share an obvious, common thread.  They are cases of procedural justice, cases where clients have a right to an appeal taken away through what Alito terms in the Maples case "a series of very unusual and unfortunate circumstances," or else, as in Padilla, the right is exercised poorly, in that the advice of the lawyer subjects the client to "such a harsh consequence" (i.e., deportation after living in the United States for 40 years).

Without question, these are troubling cases. So what makes them interesting is not that Alito is struggling with a legal standard, but that Scalia and Thomas dissented in the first two (and might yet dissent in Maples, which will be decided later this Term).  Also, what to make of the other six justices who joined the majority opinions in Padilla and Holland?  Are they not struggling with the same sets of issues that trouble Justice Alito?  And if not, why not?

Liptak closes the piece with the well-known exchange between Judge Learned Hand and Justice Holmes, which Judge Hand recalled in his 1958 Holmes Lectures at Harvard.  According to Judge Hand, he told Justice Holmes as Holmes walked off on his way to the Court, "Well, sir, goodbye. Do justice!" To which Holmes famously replied, "That is not my job. My job is to play the game according to the rules."  Liptak uses this exchange to illustrate Alito's apparent conundrum; in Liptak's words, "Justice Alito struggles to bridge the gap. He wants to do both."

This is a curious piece on too many levels.  I have already alluded to the notion that singling out Justice Alito in this way is a bit silly.  It is not entirely clear why this is a struggle in Alito's mind but not for the rest of the justices.  But more importantly, why this piece, and why now?  Surely, it cannot be the case that Mr. Liptak is running out of ideas, if the last month is any indication.  This is the beginning of the Court's Term, a time when cases are plentiful and topics abound.  And we are reading about Justice Alito's struggle between "doing justice" and applying the law?  Seriously?

Here's an easy way to show how silly this all is: go back to Liptak's own piece this past Sunday on the latest challenge to racial diversity in college admissions. In order to understand how silly this concept of justice is as applied to Supreme Court justices, take a look at that debate and the role played by "justice" in it.  This is a debate about racial justice; it just so happens that both sides of the debate disagree about what this kind of justice looks like.  And when the five member majority on the Court decides this case, they will apply their very own brand of racial justice, unmoored from constitutional norms as established in 1868.  This will be racial justice understood as personal preferences, no more and no less. You can even call it "living constitutionalism" if it helps.

What to make of Justice Alito and justice, then?  Nothing.  This alleged conflict is only a struggle of Liptak's own making.  This is because Alito is only wanting to have his cake and eat it too.  He wants to be free to do as he wishes within the shallow constraints of his office. 

This is neither new nor peculiar to Justice Alito.

Latinos, Obama, and 396,906

Ah, Mr. President, do us proud.  Figures released and reported by administration officials show that the government has deported a grand total of 396,906 "foreigners" over the last year.  Unsurprisingly, these are record levels.  The officials defend this deportation strategy by focusing on the deportees.  As reported by the N.Y. Times:

The officials said that 55 percent of the immigrants deported were criminal convicts, including 51,620 people convicted of felonies like homicide, drug trafficking and sexual offenses. The results were an 89 percent increase in deportations of criminals since the beginning of the Obama administration, the officials said. Of the remaining illegal immigrants deported, the great majority were arrested soon after they crossed the border illegally or had returned illegally after being deported, officials said.

 How is that for law and order?  Is this what passes for immigration reform in our present political climate?

Worse yet, according to a report by the Warren Institute on Law and Social Policy at Berkeley: the strategy has had a disproportionate impact on the Latino community.  Under the administration program, known as "Secure Communities," 93% of those immigrants arrested were Latino, even though Latinos as a whole only form two-thirds of those who immigrate into the United States illegally.  Also, about a third of the 226,000 immigrants deported under the program have spouses and/or children with American citizenship.  The researchers also found cases where immigration agents held U.S. citizens, even though immigration officials do not have authority to prosecute or deport American citizens.

This is change, all right.  Whether we can believe in it or not is a much different question.

The Supreme Court's Recent Approval Rating

Here's the recent polling data on the Supreme Court's public approval, courtesy of the Washington Post:

Notably, the data shows a five point dip from last year and a fifteen percent dip from two years ago.  To those who study public opinion and the Court, this is not a big worry.  According to James Gibson, for example, “the kind of basic loyalty to the legitimacy of the institution has changed very little.”

He may be right about that, though I have a different question: in light of everything we know about the Court, how in the world does 46% of the public support it at all?

This is a testament to the the mythology of the Court.