Attacking Thurgood Marshall: Not On My Watch

So . . . .the Republicans on the Senate Judiciary Committee are at such a disadvantage in Solicitor Kagan’s confirmation hearings that they have to go after a dead justice? And not just any justice, but Justice Thurgood Marshall?

Branding Justice Marshall as an “activist” whose judicial philosophy was “out of the mainstream” leads me to wonder: Since when did equality under the law become synonymous with being “activist” and “out of the mainstream?” Aren’t the words “Equal Justice Under Law” etched in the façade of the U.S. Supreme Court building? Am I missing something here?

If you want to brand Thurgood Marshall an “activist,” he should be considered to have been a “constitutional activist” – someone willing to ensure the Constitution lived up to the principles the Founding Fathers said it embodied (even if many of them were slave owners who did not live up to those principles themselves) and make it apply to everyone, regardless of race. Justice Marshall was willing to put his life on the line, litigating all across the Jim Crow south in places where he and other members of the NAACP legal team faced death threats, to make the Constitution and this country live up to its principles. To hold us all accountable to our nation's principles.

If the end of legally sanctioned racial segregation was “out of the mainstream,” than the mainstream was fouled with bigotry and hatred and needed to be disregarded.

Let’s call this exactly what it is: A cheap shot by men who not only would have been unworthy to carry Justice Marshall’s briefcase, but unworthy to wipe his behind. I would hope that all civil rights organizations would call these Republican senators to task and not let this attack on the record of Justice Marshall go without a united and sharp response. Regardless, I won't let it go unnoticed. Not on my watch.

Who's Afraid of a Wise Latina?

I cannot be the only one cringing at the Senate Judiciary Committee confirmation hearings for Judge Sonia Sotomayor. I cringe because I hear her backpedaling, or as they say in pundit-speak, "walking back," from her comment about a wise Latina. I cringe because although we all know the votes are all there for her confirmation, she has to go through this process where she has to become raceless, genderless, and unthreatening to the overwhelmingly white and male Senators who hold her fate, and to the voters who elected those overwhelmingly white and male Senators, to make it through. Just like many whites who cannot have a conversation about race without attaching outrage or moral blame to it, she has to act like the consideration of race or one's racialized experiences do not belong in the justice system because they subvert or taint the justice system. That justice is color-blind when in fact justice has, for most of our history, been lacking in any color but white.

Oh, so it's like THAT. When a Latina is nominated to a position that holds for her the potential to become one of the most powerful women in the United States, she has to prove that she's absolutely no different than any white male jurist and would analyze and rule the same. This despite the fact that Justice Alito was allowed to freely and positively refer to his ethnic background in conjunction with his judicial temperment and philosophy during his confirmation hearings.

Who's afraid of a wise Latina? I guess Senators Sessions and Hatch.

I call B.S. But I don't blame Judge Sotomayor.

But, to borrow from an En Vogue song, "And now it's time for a breakdown."

Have we forgotten that the majority of racial injustices cloaked in the mantle of dispassionate and unbiased jurisprudence have been visited upon people of color in the U.S. by white male jurists? It was white men who gave us the Japanese internment cases, Plessy v. Ferguson, and the Dred Scott decision. It was also a white man who, having had a hand in the internment of Japanese Americans, drew on his empathy (There, I said it. Empathy. Since when did "empathy" become a dirty word, like "liberal"?) and sense of justice and used all his might to procure a per curiam opinion in Brown v. Board of Education.

Have we forgotten that courts have adopted a reasonable woman standard in judging workplace sexual harassment of women? That recognizing a woman's gendered experience and what might be considered harassment to her, as opposed to what men might think is or isn't harassment to her, is part of applying the life experiences of others, marginalized others to be precise, to come to a fair and just result? To think otherwise is to think that a noose is just a pretty rope with a loop. Or that a confederate flag is just "heritage, not hate" when it's hung in the breakroom of an overwhelmingly black workforce.

But no, we're not supposed to consider this because that's bias, not empathy. Prejudice, not jurisprudence.

I wish with all my might that Judge Sotomayor had the power to say, "Yep, I said what I said about the wise Latina thing, I meant it when I said it, I still mean it, and I have the votes to get where I want to go. So if you have no further questions . . . . "

But she doesn't. Like many intelligent, Ivy League-educated people of color, she has the intellect, the accomplishments, the connections, but not the power. That power, unfortunately, is in the hands of a mostly white, male Senate Judiciary Committee that doesn't understand the nuanced difference between bias and empathy and that judging isn't simply a matter of fair and colorless versus prejudiced and color-considering.

I hope Judge Sotomayor makes it through this process so she can sit on the highest court on the land for the remainder of her lifetime.

And then have the power to speak her mind, freely and without apology or "walking back."

Because the Supreme Court desperately needs a wise Latina.