Ideology and Ethnicity: The Supreme Court Debate

As the United States Senate undertakes its examination of President Obama's first Supreme Court nominee, issues of ethnicity and ideology on the Court are coming to the fore.

In her opening remarks yesterday to the Senate Judiciary committee considering her nomination to the Supreme Court, Judge Sonia Sotomayor said, "In the past month, many senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record ... reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress's intent and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court. In each case I have heard, I have applied the law to the facts at hand."

Sotomayor said the "process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged."

That, she noted, "is why I generally structure my opinions by setting out what the law requires and then explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our judicial system.”
Sotomayor argued that her "personal and professional experiences help [her] listen and understand, with the law always commanding the result in every case."

However, those who oppose her nomination have said Sotomayor has often allowed her rulings to be influenced by such factors as ethnicity and race. If confirmed, Sotomayor, a federal appellate judge, would be the first Hispanic and the third woman justice to sit on the nation's highest court.

Just recently the American Bar Association released a “well qualified rating” when reviewing Sotomayor’s record. In his July 9 talk to The Commonwealth Club, the ABA's head, H. Thomas Wells, weighed in on her nomination. He was asked to comment on whether a person’s ethnicity should matter in a candidacy for a judgeship. “Obviously that’s going to be an issue as is the whole question of empathy – the so-called empathy debate. The ABA does not rate candidates on empathy or ethnicity. We rate candidates only on professional competence, integrity and judicial temperament.”

In that same talk, when questioned about whether a candidate’s ideology should be a factor in his/her confirmation, Wells responded, “That’s been a debate, and it’s one of the tensions of the branches of government. It’s not that long ago that the senate judiciary committee didn’t hold hearings on judicial nominees. They simply went in and voted, and usually with no controversy. So it’s a relatively modern phenomenon for the hearings to take on unfortunately the level of spectacle that sometimes we have seen with our recent confirmation issues.”

When asked to evaluate the diversity of the upper rankings of the legal profession – especially lawyers who are partners and judges, Wells replied, “Number one, there has been progress, but not nearly enough progress. We have a long way to go.” He continued, “The legal profession, unfortunately, does not look like the society we are called upon on to serve. We don’t do as well as other professions in terms of promoting diversity. Where we have done the best at least in terms of numbers is with women -- at least half of the lawyers graduating from law schools now are female. … But those women are facing other challenges in terms of rising in the ranks. .. and we are not doing a good enough job in racial and ethnic diversity. It’s more difficult in dealing with lawyers with disabiltiies, sexual orientation and gender identity issues, because of the reluctance of these individuals to self identify -- particularly if the disability happens to be a mental disability. We’ve got a long way to go.”

However, Wells noted that the ABA held a national summit just last month on the next steps for diversity. The conclusions of this meeting are slated to be published in a national report some time early August.

To view the complete Wells program, see the embedded video below. The Wells event was part of The Commonwealth Club’s Charles Geschke Family Series on the U.S. Constitution in the 21st Century.



--Commonwealth Club Media and Public Relations Department

"Hip Hop Intellectual" Wants More from Obama on Race

Michael Eric Dyson has no problem following a quote from Frederick Douglas with a shout out to Snoop Dogg. In fact, it's one of the reasons he is considered by some to be one of the most thoroughly thoughtful and entertaining intellectuals in America and when it comes to race, there are few who see the subtle cues and put downs more vividly than Dyson.

Speaking at the Commonwealth Club of California, the Georgetown professor and noted author on race, both excited the crowd with searing rhetoric reminiscent of an old time preacher along with hip-hop soliloquys of rap's most provocative lyrics. His thoughts on the place of an African-American in the White House may have caught some off-guard, though. Dyson, while thrilled to have President Obama in the Oval Office, believes he fails to confront race fully.

“He is forced into sometimes-narrow considerations. Pocket of reserve and critical reflection when it comes to issues of race, class and culture. Obviously, he doesn't want to be painted into a corner of being the black president. Ain't nobody going to miss he's a brotha. Just look at the way he walks to Air Force One,” Dyson said while mimicking Obama's soulful strut. He also accused the president along with society of failing to cozy up to the ongoing issue of race. “Blackness has been the disturbing, formidable presence of a negative that not be totally eradicated. So, we are uncomfortable with it -- the president, I would add, too.”

Much of the night featured Dyson issuing poignant comic jabs at the president, Rush Limbaugh and the role of Michelle Obama. He lamented the sorry state of the U.S. economy just as Obama took office when he quipped, “Of course they would hand a brotha a key to a sinking ship.” and added. “It's good that we have an African-American president, I think at this particular point. Like Tupac [Shakur] said, 'A brotha know how to make a dollar out of fifteen cents.' He certainly will have to make much more from far less.”

Recent calls by Republicans of reverse racism levied against Obama's Supreme Court nominee Sonia Sotomayor for citing her Latina heritage struck Dyson as ridiculous, as he charged Limbaugh of piling on a historically marginalized race and gender. He said her racial background is a positive. “Rush Limbaugh goes on his warpath and says, 'What do you mean? That's reverse racism!' It's the former racism that I'm worried about,” said Dyson, “Taken out of context — looking like the woman is out to be playah hating on white men, that ain't the point. The point is, if you've been dominated, it's often been rendered irreversible, therefore, invisible. Not seen, Mr. Limbaugh.”

With Tuesday's ruling from the California Supreme Court upholding the state's ban on gay marriage still on many minds, Dyson discussed the opponents of Proposition 8 and their linkage to the plight of blacks in the Civil Rights Era. He noted some African-Americans do not take the co-opting of their struggle by gays lightly, but points out the Civil Rights movement was heavily borrowed from Mahatma Gandhi's principle of non-violence. Dyson admitted that the eradication of homophobia from his mind is still a work in progress and views homosexuality in physiological terms.

“When do you choose to be heterosexual?,” he said, “At seven years old, you rode on your mama and said, 'Look, I'm going to need me a Corvette and a black book because I'm going to be macking the ladies and a decent basement, so when we come down here, it's going to be looking good'.”

Perhaps surprisingly, he lauded the rise of Michelle Obama as the “Mom-in-Chief” as a significant breaking of racial stereotypes regarding black women, but only to a certain point. “The momification of Michelle Obama nullifies the narrative of the black woman as a reckless mom — the welfare queen. She just juxtaposes that. She's a super-heroic figure,” he said. “But her mama is in the crib, too. A lot of so-called welfare queens don't have mama in the crib and, if she does, mama has children, too.” He also referred to Queen Elizabeth's notable breaching of protocol when she touched Michelle Obama's arm and in a tongue-in-cheek manner envisioned the first lady's future presidency.

“I think Michelle Obama is an extraordinary person,” he said, “I think when she becomes president she'll find Bin Laden the first week."