Ethnic Politics and the Supreme Court

Let's face it. The controversy over Sonia Sotomayor is not solely over her remark about a "wise Latina woman." There are several pieces of evidence for this. First off, large segments of the Right made clear from the start that they would oppose Obama's nominee, no matter who he chose. Second, there were some fairly clear warnings from the start, not limited to the Right, that David Souter was a white male, and that if Obama proposed a replacement who was not white and male, it would be affirmative action run amuck.

This seems a good opportunity to discuss ethnic politics in general and its role in Supreme Court appointments in particular.

First of all, ethnic politics is not some shocking new thing that began in the Sixties and was unheard of before. Ethnic politics in the United States goes back at least to the big city Irish political machines of the 1840's and probably well before. It is a normal part of a multi-ethnic society.

Second, ethnic politics is neither the best nor the worst way to deal with a multi-ethnic society. Ethnic politics, in the sense of ensuring that each group gets its fair share of the goodies, is preferable to having the dominant group keep all the goodies to itself and refuse to share. But it is not as good as a true meritocracy in which ethnicity makes no difference. This last sentence is, after all, a significant concession for a liberal to make. I agree with conservatives that a true meritocracy without regard to identity politics,* a "color blind" society, is and should be our ultimate goal. What we don't agree about is how to achieve that goal.

Conservatives seem to assume that identity politics and meritocracy are the only two alternatives. True, the dominant groups once kept all the goodies to themselves, but that couldn't possibly be any danger now. Maybe. Maybe if we put an end to all identity politics, pure meritocracy would emerge. Or maybe white males would, after all, keep all the goodies to themselves. The number of people taking offiense at the idea of Souter's replacement not being white and male is not exactly encouraging. Maybe it is only affirmative action that stigmatizes minorities and without it dominant groups would be more accepting up newcomers. But then again, dominant groups have been resisting infiltration by upstarts since long before affirmative action ever occurred to anyone. Maybe disdaining minorities as beneficiaries of affirmative action is just the old racism in new guise.

My own view is that ethnic or identity politics, though by no means ideal, is a necessary stage in the process of getting from point A (pure white male dominance) to point B (pure meritocracy). The most obvious objection would be to ask how do we know when we gave gotten past the need for ethnic politics and arrived at a pure meritocracy. My answer is that we will know we have achieved a true color blind society and no longer need identity politics when people stop arguing about the need to get past identity politics because it has already happened without anyone noticing.

The Supreme Court is a case in point. Ethnic politics have long been at work, but in changing ways. When Louis Brandeis became the first Jew appointed to the Supreme Court in 1916, that was considered highly controversial. When Felix Frankfurter was appointed in 1938, his Jewishness was less controversial, but still considered significant. Today Justices Ginsburg Jewish and Stephen Breyer are both Jewish (and both appointed by the same president, no less) and hardly anyone even notices, let alone cares. When Irish Catholic William Brennan was appointed to the Supreme Court, his ethnicity was a factor in his selection. Brennan was only the sixth Catholic to serve on the Supreme Court, and his religion was considered controversial. Today five of the nine Justice are Catholics. Sotomayor, if confirmed, with make it six, and nobody cares. Justices Scalia and Alito are both of Italian ancestry. Time was when people would have assumed ethnic politics were at work in Scalia's appoinment and darkly hinted at Mafia ties and a second Italian on the Court would simply have been too much. Today, Scalia and Alito are both blandly labeled as white both assumed to be highly qualified (if politically controversial) candidates whose merits no one doubts.

In short, white ethnic identities have ceased to matter, and no one really noticed when it happened. When Brennan retired from the Supreme Court, no one felt the need to appoint another Irish Catholic to replace him. But Republicans, no less than Democrats, continue to respect racial and gender identity politics. It was Ronald Reagan, after all, who first promised to appoint a woman to the Supreme Court and, out of the small group of qualified women at the time, chose Sandra Day O'Connor. Significantly, when O'Connor retired, G.W. Bush's first impulse was to appoint a woman to replace her, even though there was already a second woman serving on the Court. And when Thurgood Marshall retired, the senior Bush sorted through an all-black list of candidates to choose Clarence Thomas, while making himself ridiculous by insisting that race played no part in his choice.

Perhaps the time will come when no one cares about the race of Supreme Court justices any more than anyone today cares that we have two Jews and two Italians on the Court. Perhaps some day no one will care whether a nominee is a man or woman. But until that day arrives, it is pointless to argue that we can overcome identity politics by wishing them away -- or by limiting nominees to white males.

Update: This excellent New Yorker column makes the same point. It also points out that before we had ethnic politics, we had regional politics, and they played their part in Supreme Court appointments as well.

*By identity politics I mean ethnic politics plus gender politics. For the sake of variety, I will use the two terms more or less interchangeably.

Hope or Despair?

Watching the Obama Administration up until now, I have wavered between hope and despair. On the down side, Obama seems to be adopting many of the Bush Administration's policies in slightly modified form. He is also seeking to hide as much as possible of what they did. On the other hand, there have been growing cracks in the attempt at concealment. I am not so naive as to believe that the Obama Administration is repeating the Bush arguments on national security in court in hope of losing, but that is, in fact, what appears to be happening. It is important both to have a President who respects the rule of law and to have institutions that can reign him in if he does not. Of course, I would rather have both than have to choose one or the other. But given the choice, I would rather have a lawless President reigned in by strong institutions than a law-abiding President but no institutions capable of restraining him. Which means that ultimately it is better to have evidence of Bush outrages released in spite of Obama than because of him.

That was how I hung onto hope until Tuesday. That was the day that Congress finally stood up to the President and reigned him in. Voting 90 to 6,* the Senate stripped defense funding of any funds for closing down the prison at Guantanamo. (Although I am unclear on this point, they may also have barred release into the US of any detainees determined not to be terrorists, or even their transfer to other countries. In other words, Congress has boldly stood up to the President and mandated that we lock terrorism suspects, innocent and guilty alike, away forever with no recourse. Not quite what I had in mind for reigning in an out-of-control President! And make no mistake, this is not just intended to prevent the release of actual terrorists onto US soil. Senator Ben Nelson (D-Nebraska) has made quite clear that the point is to bar any suspect, innocent or guilty, from being released anywhere in the world. "We need to work with other countries to make sure that they don't release them. That they keep them incarcerated. After all, they're their residents, they're their citizens and after all, they have an obligation here as well."

President Obama responded with a speech today, which, once again, leaves me wavering between hope and despair. Stripped of cliches and platitudes, it amounts to a proposal to close the prison at GTMO and dispose of the inmates in five ways:** release, transfer to other countries, trial in federal court, trial by military commission and indefinite detention (he was not clear where). Consider hope and despair in each category.

(1) Release. Obama was quite emphatic on this point. "[T]his has absolutely nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have found that there is no legitimate reason to hold twenty-one of the people currently held at Guantanamo. Twenty of these findings took place before I came into office. The United States is a nation of laws, and we must abide by these rulings." This is all to the good -- if obeyed. The difficulty is finding somewhere to release the innocent to. Innocent or guilty, Congress seems determined to block to release of any detainees into the US, and possibly even to third countries. Nor are third countries apparently willing to accept releasees if the US will not accept any. Result: Unless this impass is broken, at least 21 (and maybe more) innocent detainees will be left to rot in GTMO forever. Hope or despair?

(2) Transfer. Obama reported that 50 detainees have been cleared for "transfer" to other countries. It is not clear whether this means release into other countries or imprisonment in other countries. An article on the subject describes the proposed transfers as "as either low-level threats who no longer have valuable intelligence to give, or have been cleared for transfer because of a court order or otherwise lacking evidence against them." It also speaks of transfers as being prosecuted, rehabilitated, or released, suggesting that the category covers both imprisonment and release. Once again, this is all to the good if it is actually done. Congress, however, seems so terrified that transferees might return to terror that it may very well block such attempts. And other countries are notably reluctant to accept such transfers. Hope or despair?

(3) Prosecution in federal court. Obama reported that the Administration is "preparing" to transfer one detainee to New York for trial on the 1998 embassy bombings. An unknown number of others will presumably follow. This is, of course, exactly what Bush critics have been advocating for a long time. It is also what Congress is in a screaming frenzy about not allowing. However, I am inclined to be (perhaps foolishly) optimistic here and think that the prospect of an actual public trial and conviction of a terrorist will be appealing enough to overcome resistence, and that critics can be shouted down. ("Republicans are trying to block the trial of a vicious terrorist for his crimes!") And perhaps the trial and conviction of one terrorist in the US with no catastrophic consequences will encourage further such trial. I lean toward hope here, but we will see.

(4) Trial by military commission. This is what Obama proposed for detainees who "violate the laws of war." He defended military commissions as a long-standing practice dating back to the Revolutionary War and proposed modifications to the Bush-era military commissions to make them more just and credible. Many critics decry this as no more than a "kinder, gentler" version of the Bush system. I, myself, am inclined to reserve judgment. If these commissions make only cosmetic changes from the Bush era, they certainly deserve to be condemned. On the other hand, if they are something closer to an ordinary court martial, that would be acceptable. Hope or despair will await further details.

(5) Indefinite detention. This is the most controversial category, as Obama himself acknowledges. He would reserve it for "[P]eople who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans." This appears, in other words, to refer to people who belong to terrorist organizations but have not committed any actual terrorist acts. This category has, indeed, always been problematic. Release with close surveillance is the traditional law enforcement approach, but the world is a big place, making such surveillance easy to dodge. Obama's proposal for such people is a system of preventive detention, requiring Congressional authorization, clear standards, fair processes, and periodic review. At first glance, it seems almost reasonable. But then again, so did many proposals by the Bush Administration. And who can doubt that this one will get through Congress with only token opposition. The only hope to stop it would be a finding of unconstitutionality by the Supreme Court. Despair is in order here.

*Voting no were Senators Durbin, Durbin, Harkin, Leahy, Levin, Reed (not to be confused with Reid!), and Whitehouse. Senators Dodd, Feingold and Sanders voted for the measure. The entire West Virginia delegation, FWIW, was AWOL.

**Listed here in the order of severity, not the order he listed them in.

Accusation Against Pelosi: Hypocricy or Cynicism?

Many Democrats are completely baffled at the attention Republicans are focusing on Nancy Pelosi and the Torture Memos. After all, they argue, the Bush Administration that was in charge of all that was done to the terrorists at the black sites. Pelosi is guilty, at worst, of passive acquiesence. That deserves to be condemned, but is a minor matter compared to actually running the sites. So why the obsessive focus on Pelosi?

The trouble with this question is that it assumes everyone agrees there is something wrong with shackling known terrorists to the ceiling a week or more to keep them from sleeping, slamming them into the wall 20 to 30 times in a row, or waterboarding them 83 to 183 times. But try, if you can, to place yourself in the perspective of someone who thinks that everything that went on at the black sites was perfectly fine. Republicans are, in effect, clearing themselves and the Bush Administration of any wrongdoing because they didn't see anything wrong with any of that. But if Pelosi thought there was something wrong going on, it was incumbent on her (but not on them) to speak up. At the most superficial level, they are accusing her of hyopcrisy for failing to act on her principles.

The trouble with such accusations is that they are never very convincing. People who believe that not-quite-torture is wrong and evil consider it unimportant that Pelosi was a hypocrite in failing to oppose it; such a failing is a trivial offense compared to actually committing not-quite-torture. People who criticize Pelosi as a hypocrite for failing to live up to her anti-torture principles while giving themselves a free pass because they support not-quite-torture regard oppostion to not-quite-torture as vile terrorist-coddling that endangers American lives. So why condemn Pelosi for failing to live up to to such dangerous principles?

It is my belief that there is a deeper, unspoken accusation there. To understand it, consider the subject where liberals are most fond of accusing conservatives of hypocrisy -- homosexuality.

There is no shortage of examples. Senator Rick Santorum holds himself out as Mr. Family Values and denounces homosexuality as a menace that threatens our whole civilization, yet is completely accepting of his gay staffer. Senator Larry Craig holds himself out as Mr. Family Values and denounces homosexuality as a menace that threatens our whole civilization and is caught soliciting gay sex in a public restroom. Reverand Haggard preaches passionate anti-gay sermons while carrying on with a gay prostitute. We liberals condemn them as hypocrites. We mock them for failing to live up to their stated values. But how convincing is such an accusation?

Certainly such accusations are unconvincing to anyone believes that homosexuality really is an evil menace that threatens our whole civilization. Consider what David Frum had to say on the subject:

If a religious leader has a personal inclination toward homosexuality - and nonetheless can look past his own inclination to defend the institution of marriage and to affirm its benefits for the raising of children - why should he likewise not be honored for his intellectual firmness and moral integrity? "I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self."

Or, put differently, the personal failings of an anti-gay crusader are irrelevant to the underlying evil of homosexuality.

The accusation of hypocrisy does not make much sense from a liberal standpoint either. Does it really make sense to say, "Not only does so-and-so have vile, bigoted values, but he doesn't even live up to them"? If someone's values are vile and bigoted, isn't it better, after all, not to live up to them? But are we really criticizing, say, Rick Santorum for publicly condemning homosexuality while privately being completely accepting of his gay staffer, or are we actually condemning him for privately accepting a gay staffer while publicly condemning homosexuality? The distinction is subtle but real. It amounts to saying that Rick Santorum knows that there is nothing wrong with being gay, as evidenced by his being completely accepting of his gay staffer's orientation. Yet he lies by publicly pretending to think homosexuality is wrong in order to pander to his constituents' worst instincts and win votes. That isn't hypocrisy; that's cynicism.

Many accusations of hypocrisy make more sense when read as really accusations of cynicism. Consider Al Gore's mansion which uses energy at a considerable rate even as Gore preaches the need to cut energy consumption to fight global warming. Hypocrisy? Many environmentalists would agree that it is, indeed, hypocrisy, but that doesn't make global warming any less real or the need for conservation any less urgent. Now try it as an accusation of cynicism. Al Gore knows global warming isn't real, as evidenced by his extravagant energy consumption, but he continues to fear-monger in order to impose his political agenda. Doesn't that make more sense?

Now, apply this general rule to the accusations against Nancy Pelosi. I think what Republicans really mean is that Pelosi obviously didn't think anything going on at the black sites was wrong, as evidenced by the fact that she didn't protest at the time. But now she is pretending to think not-quite-torture was wrong in order to pander to her constituents, despite the real danger opposition to not-quite-torture poses to American lives. Seen from that perspective, it almost makes sense.

Update:

Cheney's speech confirms my suspicions. Without actually naming Pelosi, he says, "Some members of Congress are notorious for demanding they be briefed into the most sensitive intelligence programs. They support them in private, and then head for the hills at the first sign of controversy." This is an an accusation of cynicism not even masquerading as one of hypocrisy.

Justice Scalia

Law school is out for the summer, so I should be posting more for the next few months. And, as a good place to start, Supreme Court Justice Antonin Scalia visited our school. Hearing him speak has given me a greater understanding of his outlook and world view, but it has not won me over.


Justice Scalia addressed our Constitutional Law class. Like most law schools, ours gets to constitutional rights only after discussing constitutional structures. Scalia approves. He said that a bill of rights offers only what Madison called "parchment" barriers, and that the real protection of liberty is in governmental structures. It is preserving those structures that he sees as the most important protection of our liberty. Scalia sees two governmental structures as most important -- protecting state sovereignty, and maintaining the separation of powers.

State Sovereignty

Scalia sees state sovereignty as an important protection against an overweening federal government and does not see the states themselves as a source of danger. As such, he favors almost any measure to protect the sovereignty of the states. For instance, he believes it was a mistake for the Supreme Court to "impose" the Bill of Rights on the states, although he continues to do so out of respect for precedent. He champions a broad reading of the Eleventh Amendment, which forbids individuals from suing states in federal court. Immunity from suit was an essential attribute of sovereignty when the Constitution was adopted. And he believes the Seventeenth Amendment, which transferred election of Senators from the state legislatures to the public as a huge mistake. So long as the state legislatures elected Senators, the states controlled the Senate and could protect their interests. Since they lost control of the Senate, state sovereignty has been gradually undermined because there is no institution to uphold it. All these are views I had heard before, though usually from less mainstream sources than a Supreme Court Justice.

I do agree with Scalia on the dangers of an overweening federal government and the need to restrict its powers and leave some things to the states. But not with his belief that the states cannot be equally dangerous. The basic underlying assumption, that only the federal government can threaten liberty, and that states are, by definition, non-dangerous, has been tested through extensive experimentation in the field and been proven false. States are just as capable of violating people's rights as the federal government. I do not know enough about the relative merits of electing Senators by the people or by state legislatures to have an opinion neither way. But refusing the extend the Bill of Rights to the states, or forbidding people who the states have wronged from suing both have the effect of elevating states' rights above individual rights. To that I am utterly opposed.

Separation of powers

By separation of powers, Scalia specifically means independence of the executive. This was a point he hammered again and again. European countries do not have the separation of powers; they do not have an independent executive or upper house. All power is concentrated into a single legislative body. The Founders regarded such an arrangement as supremely dangerous. Scalia emphasizes as one of the glories of our system how difficult it is to get anything done, since all laws must pass both houses and be signed by the President. Gridlock and paralysis are good; they are the guarantees of freedom.

When it came time to ask questions, I spoke first and challenged this assumption. There are, after all, other free and democratic countries in the world that concentrate all power into a single legislative body. So obviously our separation of powers must not be so essential to freedom after all. Scalia's answer, as I understood it, was that parliamentary countries are not really free, but only think they are. When we discussed the Justice's visit in class the next day, our professor did not agree that Scalia was going that far. He believed Scalia was merely saying that parliamentary governments were less responsive than ours. And the Justice did, indeed, question the responsiveness of parliamentary government. But obviously if one of the glories of our system is the extreme difficulty in getting anything done, that isn't so responsive either. Another criticism Scalia had of parliamentary systems is that the individual legislator is not associated a single district, as is the case in our system. That means if a senior leader loses in his or her own district, they simply change districts. It is therefore much harder to throw the bums out in such a system than in ours.

I must admit, I do not know much about the relative ease of throwing the bums out in our system versus a parliamentary system. I would say that the great advantage of our system over a parliamentary system is that ours is more difficult to subvert. In a system that concentrates all power in a single legislative body, any aspiring dictator need only subvert that one body. This, too, has been tested through extensive experimentation in the field. It happened in Italy in the 1920's, in Germany in the 1930's, and doubtless in other, less famous cases as well. Any aspiring dictator in the US would have to subvert the Presidency, the Senate, the House, and quite probably the courts as well. And even a vestigial independent executive can put at least some brakes on an aspiring parliamentary dictator. Hindenburg was a restraining influence on Hitler so long as he lived; King Victor Emmanuel exercised a restraining influence on Mussolini as well.

Executive Power

The importance of protecting the executive from an overreaching Congress was one of Scalia's major themes. The one real flash of anger I saw in him was when he talked about he tenure as counsel general for one of the executive agencies, and when he appeared before the appropriate congressional committee and was told that he was their agent. That still rankles with him. Scalia is quite insistent that if Congress could only get its act together, it would win out over the President every time. And, he says, it wasn't the President that the Founding Fathers feared most. Quoting the Federalist Papers, he cited Madison arguing that the executive is the most dangerous branch in a monarchy and the legislature the most dangerous in a republic, so dangerous that it had to be split in two to limit its power.

Once again, I cannot agree. The Federalist Papers are brilliant works of political science, but they are not infallible holy writ. There are excellent reasons for believing that the executive is inherently the most dangerous branch. For one thing, it is an inherently undemocratic branch. Yes, obviously we have an elective chief executive. But unlike Congress, which is a democratic body which engages in public debate and makes it decisions by majority vote, the executive is a basically authoritarian, top-down structure taking its orders from one man -- necessary for effective administration of our government (imagine if every tiny decision had to be voted on!), but nonetheless holding greater potential danger than a democratic body. Closely related, Scalia says that Congress will always win out if it can get its act together. But, as he acknowledged, its democratic, decide by majority vote nature makes that inherently extremely difficulty. The authoritarian nature of the executive, by contrast, makes it much easier for the President to decide on a course of action and unilaterally outmaneuver Congress. And the President has the whole means of coercion at his disposal. What more need be said?

Nonetheless, even assuming for the sake of argument that Madison was right when he wrote the Federalist Papers and the legislature was the most dangerous branch at that time, it does not logically follow that the legislature is the most dangerous branch today. The executive power of government -- the US federal government in particular, but all government as well -- has grown almost incomprehensibly since the 18th Century. To take a basic example, why has Congress never declared war since WWII, even though we have fought several major wars since then? Because the President, given a military force, will use it whether Congress approves or not. Presidents have been fighting minor wars without the approval of Congress from when Jefferson first sent the Marines to the shores of Tripoli. The difference is that up till WWII, the President had only a small military force and therefore could only fight small wars. If he wanted to fight a major war, he had no choice but to go to Congress for permission, or he would not have the army to fight it with. Now the President has a large enough army to send 300,000 troops to Korea or 500,000 troops to Vietnam without having to go to Congress first. And then there is the huge federal bureaucracy and all the administrative agencies. Necessary for any modern government to operate, yes, but what it means is that if the President cannot get his program through Congress, many times he can simply bypass the legislative process and implement it administratively.

In short, I see the power of the executive as the most dangerous and regard any interpretation of the Constitution that fails to take into account the immense growth of executive power since the 18th Century and out of touch with reality. (And I regard any political theory that fails to account for reality as useless at best and dangerous at worst).

Individual Rights

So where do individual rights come into Scalia's view? He does regard them as important. After all, as he explained to his class, we are not a pure democracy in which the majority has unlimited power. Pure democracy is little better than mob rule. We are a liberal democracy with protections for the rights of the minority, which he agrees are important. But he prefers to read individual rights narrowly because a broad reading infringes on majority rule. Speaking specifically about freedom of religion, he said that so long as a law does not specifically target a religious practice, people should be required to obey it, even if it conflicts with their religion. If the majority wishes to grant an exemption for religious objectors, it can do so by legislative enactment. He is confident that, given the importance our society places on respecting people's religion, the majority will generally allow such exemptions.

At least, this is what he told our class. Later, giving a speech at the Convention Center, he made exactly the opposite argument. It is the job of the Supreme Court, he said, to say no to majority government. And he argued that the courts must not invent rights not supported by the text of the Constitution because to do so removes the last barrier to majority rule and allows the general mores of society at the time to run unchecked.

The Dread of Uncertainty

Given these contradictory views, it is mighty hard to argue that the main reason Scalia opposes "judicial activism" is that it infringes on majority rule. Nor, I believe, is it only because he dislikes the results that "activist" judges come up with. Something else is at stake as well.

When Scalia was asked his opinion about other judges, I do not remember what he said about most of them, but he was very clear about Clarence Thomas. They largely see eye to eye on what is ideal, but Thomas is much more willing to overturn precedent; in fact, Scalia gave a little shudder of alarm at Thomas's radicalism in that regard. He said he has two main criteria on whether to overturn precedent that he regards as wrong; whether there has been siginficant reliance on it, and whether the precedent sets clear rules to follow. For instance, he regards applying the Bill of Rights to the states as a mistake, but one that may acceptably be followed. There has been significant reliance on it, and it is not too difficult to follow. He just applies the Bill of Rights to the states exactly the same way he would apply it to the federal government. But Roe v. Wade is a different matter altogether, he said. If forbids an "unreasonable burden" on a woman's right to abortion, and how is he supposed to figure out what that means?*

He also discussed the Religious Freedom Restoration Act (RFRA which, by coincidence, we had just finished writing an assigned brief on) as an example of everything he sees as wrong. He likes the rule that people must obey the law regardless of religious object so long as the law does not specifically target their religion because it is clear cut and easy to follow. But RFRA forbids government from imposing a "substantial burden" on religion unless it is the "least restrictive means" to meet a "compelling governmental interest." What maddeningly fuzzy terms!

And there, I think, is a large part of the answer of what Scalia (and so many other conservatives as well) so dislikes about "activist" judging. It is too vague. It leaves too many ambiguities. It lacks clear, bright lines. Scalia and others like him want a statute to set out those lines in clear and unmistakable terms. The trouble, of course, is that the real world is not like that. The real world is full of fuzziness and ambiguity. And no matter how carefully a legislature may set its bright clear lines, real world situations will inevitably straddle them and force the courts, once again, into the messy world of interpretation.


*Scalia did not discuss his views on abortion as such, other than to say that it should be left the the majority of the state. But he is a traditional Catholic, so I cannot believe he approves.