Tuesday, May 03, 2005


Judicial "Race" -- To The Bottom (or the Top)?

So exactly which party is playing the race card on judicial nominees?

The answer, of course, is "both." In the current
Weekly Standard, Stephen Calabresi argues that Democrats have taken the vow, "No More Clarence Thomases," and have thus focused their filibuster focus on black, Hispanic, Catholic and female judicial nominees:

Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women. The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.
That, of course, makes the argument that Democrats are obsessed with blocking these nominees because of their race, gender, religion or some combination thereof. But, in noting this, it implicitly makes the opposite argument: that the GOP might be pushing many nominees precisely because of the problems they pose to Democrats. Yes, Democrats may be -- partly -- blocking Owen, Brown, Pryor and others because of various incidents of their being, but Republicans nominate them for the exact same reason, partly, as stated before, to score "victim" points.

It's nothing new: As George Will said some fourteen years ago, "George Bush began the Thomas saga by saying two things he and everyone else knows are untrue - that Thomas is the person best qualified for the Supreme Court, and that his race was irrelevant to his selection." Thomas was picked because he happened to be an intelligent, but conveniently black and combatively conservative individual. Of course, race was a major element in the mix.

When the Thomas selection was announced, I happened to be in the office of a Republican operative who casually observed, "Thank God he chose the black guy." This person didn't make this observation out of some overwhelming sense of egalitarianism. It was a recognition of pure politics. (For good measure, this person added, noting Thomas' complexion, "And he's really black.") Five years later, I found myself at the Republican Convention and two attendees, wistfully discussed how the '96 GOP ticket was "supposed" to be Dan Quayle and -- drum roll -- Clarence Thomas! Now, why on earth would Republicans openly speculate about a Supreme Court justice giving up his lifetime appointment just to run for vice-president?

Calebresi may well be accurate in saying that putting "Clarence Thomases" on the bench could shatter the Democratic base, except for one thing: That theory was hardly proven true based on the experience of the man who now sits on the high court. One hardly saw a black stampede toward the GOP and away from Democrats because Thomas ended up on the Supreme Court a decade and a half ago (there may be some nominal movement now, for reasons having more to do with -- gasp! -- issues rather than symbolic appointments).

Similar racial gamesmanship is being played by Republicans this time around as occurred during the Thomas (pre-Anita Hill) debate.

Note this statement from Orrin Hatch calling for the quick approval of nominees Priscilla Owen and Janice Rogers Brown:

The American Bar Association unanimously gave Justice Owen its highest rating of well qualified. This means she has outstanding legal ability and breadth of experience, the highest reputation for integrity, and such qualities as compassion, open-mindedness, freedom from bias, and commitment to equal justice under law. Yet, some of the very Democrats who once said the ABA rating was the gold standard for evaluating judicial nominees now call Justice Owen an extremist.

Another nominee branded an extremist is California Supreme Court Justice Janice Rogers Brown, nominated to the U.S. Court of Appeals for the D.C. Circuit. She is the daughter of Alabama sharecroppers who attended segregated schools before receiving her law degree from the University of California at Los Angeles. She has spent a quarter-century in public service, serving in all three branches of state government.
Hatch uses the ABA ranking to make the case for Owen and talks up her "outstanding legal ability" and "breadth of experience." Yet, for Judge Brown, the focus has to be on her racial biography. Indeed, it's quite obvious that Republicans are happily working off the same set of talking points. Two Sundays ago, Sen. Jon Kyl was on "This Week with George Stephanopolous." The conversation on judges had barely gone by a minute before Kyl was reminiding viewers that Brown was a "sharecropper's daughter from Alabama."

An end-the-filibuster ad by the Progress for America 527 states right at the beginning, "Janice Brown is the daughter of sharecroppers." Ah, it's not as if anyone would care that she has non-biographical attributes that qualify her for the circuit court, right? To be fair, her actual qualifications are eventually discussed, but Republicans have this obsession about leading with the "sharecropper" line. It's as if people don't learn that she's not the "daughter of sharecroppers," there's no way that the public will learn that she's black.

This tactic, of course, recall's Hatch's own words hours after Clarence Thomas was nominated for the Supreme Court: "Anybody who takes him on in the area of civil rights is taking on the grandson of a sharecropper."

(By the way, is it written in stone that daughters and grandsons of sharecroppers can't grow up to be radicals or extremists? I'm not saying that Thomas and Brown are, but it's not as if we're looking at mutually exclusive terms here. Goodness knows that there are lots of black folks on the left who come from slavery/sharecropper heritage who have become extremists on the other end of the ideological chain.)

Ah, the fun racial hypocrisies of Washington. Democrats want minorities to succeed and grow up to be anything except conservative. Republicans want minorities to be conservative but are most content to highlight their up-from-sharecropping experiences (if they've got actual, non-racial/non-class attributes, well, that's okay too)!

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