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 There might be too many lawyers in the U.S. (who knows) But one thing is clear, there are not too many lawyers of color in the U.S.
I am serious.
This is not an attack on lawyers who are white or of European descent. It is just the facts. There is room for African-American lawyers in the U.S. and we(African-Americans) should encourage and support such a notion.
African-Americans are 13 percent of the United States population. But according to statistics, they comprise only 3 percent of all lawyers, in the United States. This is abysmal.
The number of African-Americans at the large firms in the United States is low as well, something that hasn’t changed in years. Years ago, I did research on the topic and the numbers were horrific.
A lot of factors historically have caused this to happen; African-Americans have had to fight to be able to study at certain law schools and to become members of bar associations are two of the biggest. And relationships at firms lead to jobs.
Yet, at the beginning of this, I said that there is a need for more African-American lawyers and it is true. Why? The current foreclosure crisis where it is clear that African-Americans were targeted by financial institutions with default prone mortgage products is an area of legal practice where African-American lawyers can make a mark. In the coming years as the facts continue to evolve; it is likely that the racial element to the subprime crisis will be revealed. African-American lawyers, as much as they are able, can step in and take on this fight. They can also step in and demand reform in the financial services system.
In addition, while it might seem depressing, African-Americans are disproportionately entangled with the criminal justice system. They could surely use some zealous advocacy in attempting to avoid serious jail time or any jail time at all. Black lawyers understand this (at least some of them).
Moreover, in general, African-Americans are confronting a precarious time on a whole host of issues. Lawyers who understand this reality might be better equipped to assist them with these problems.
So don’t listen to the madness that there are too many lawyers. There might be but not African-Americans and probably not lawyers of color, in general. No offense to anyone, but I just don’t agree with that one. We will explore that notion further in this space.
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 According to a black man I saw on the bus today, the next President of the United States has currently not been identified. He is, in other words, or she is, in other words, not known to us. The brother, who smelled like a whiskey distillery, advised me of this when I was reading the New York Times (Where was the Detroit Free Press, he also asked, we are in East Lansing, Michigan?) that a fringe candidate would emerge and motivate the masses to a grassroots victory over the two dominant political parties - Democrat and Republican. He was, to say the least, quite serious.
I am, like most, awaiting the outcome of the next election. Times are stupid. Times are tough for many. Things have never been as absurd as they are now or quite as weird. I have no idea how this is going to do or if it means anything at all but what it has always meant.
Working class whites, it has been said in polls, are flocking to the Republican Party. Blacks, of all persuasion, are angry as hell, and not flocking anywhere because they figure the black man, in the White House, would try to address the 16 percent unemployment rate in Black America. Both of these traditional, vibrant voting blocks, should really think about the election and what to do, who to vote for, etc. They have a role to play; don't be foolish and not vote and don't vote for morality or religion or race; vote smart. But most of all, the election is not the key to your future; there is much more you can than just vote.
Let me address that latter part of this first. Black people, Mr. Obama cannot deliver you anything these days. He is in a pinch of his own making and that made and the making of the Republican Party who want to win so bad they would rob gas stations if they knew it would guarantee their ascent into the White House. I find them to be ruthless and immoral but politics in America is ruthless and immoral and this explains why they do well most of the time. Mr. Obama spent too much time trying to talk to them and now he finds himself lost in the political wilderness giving powerful speeches but with no means to pass anything.
With that said, has Mr. Obama done good things in office? Sure. Many. But it doesn’t matter. None of it matters. He and his party had a chance to go for a big, giant stimulus package back in 2009, but his own party held up progress, and Mr. Obama stands to be voted out because of their lack of courage or fortitude.
The economy will not get much better probably until he is voted out of office; that is, as Bruce Hornsby might say, the way it is. A black man becomes President and he is handed the worse mess of all. He tried and for the most part, he didn’t accomplish his goals. It will be, according to my friend on the bus today, like he never was President really; they will repeal all he has passed, and try to make him look stupid, and by default make all black people look stupid. This is, my drunken friend said, the plan.
I would laugh at this months ago; today, I read the Times, tune him out, see how many hits the Tigers got yesterday in beating the Yankees.
As for working class whites flocking to the Republican Party, this should be the subject of some scientific study at NIH in Bethesda, Maryland. The working class folks I see each day in the Midwest were once part of America’s industrial core; they had jobs, and pensions, and nice homes; now they bring cans to the supermarkets each day to get money for recycling them. They make sandwiches. Their kids don't go to college; they can't. Most of them will not get a good job in a factory; their Republican friends sent their jobs abroad going back to the days of Ronald Reagan. Yet, this is the party they will stand with for reasons which defy logic.
I got off the bus today. I barely remember what the black man looked like. I am near a supermarket. White men carry cans into the grocery store to cash them in for money. Black men are on some bench looking half drunk. People are going about this business. Where is this guy my whiskey soaked friend says will emerge to fix all of this?
This is America today, in Black and White. October 3, 2011.
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 After all of that, President Obama is not a political coward. He is ready to fight for his health care law. He wants the US Supreme Court to resolve the health care law once and for all. The law was passed in March 2010 and I find it hard to believe that already review is being requested. People languish on death row for 20 years on appeal but the health care law is set to be reviewed in less than two? Is my name Charlie Brown? I don't believe it but politics is politics, and the system is the system. I am surprised also that Mr. Obama is seeking review of the law and is on the offensive. But here's the deal, one person told me. This is a win-win. If the SCOTUS decides to rule that the law's individual mandate is unconstitutional, he still has a law, he just doesn't have a tax to pay for the law. The insurance companies (most folks don't know this) were for the law, because it had an individual mandate and they stood to gain 32-36 million new customers. They knew they had new obligations coming; they just wanted to know where the cash was coming from. They got what they wanted: you, the consumer. But if Mr.Obama wins on everything, it is a huge victory because this will bring coverage to a lot of people who had never been covered, who had been using emergency rooms as their primary physician. I don't have an idea of where this is headed right now. I am going to go back and read the opinion from the 11th Circuit that is being appealed. I am going to read a lot of stuff. This one is a behemoth.
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Two Trains Running and 9/11
 Back in September 2001, when Al Qaeda bombed America, the unemployment rate in Black America, was 8.6 percent. Today, 10 years later, on the anniversary of the September 11, 2001 bombing, the rate is nearly twice that amount at 16.7 percent. It has been the topic of much chatter lately.
I wrote an essay in 2001 in response to the bombing and all the calls afterwards for war. It appeared in the Progressive Magazine and is called “Stand by the Man: Black America and the Dilemma of Patriotism.” I wrote the essay because I wanted to stress the fact that after the brazen attack on the country, Black Americans, like all Americans would be asked to sacrifice for the country, and go to war. Domestic problems had to wait, and I thought that was very disappointing. It is one of the reasons I opposed the war.
Here is an excerpt:
We would be asked to do what we had always done without any promise of future benefit: to prove our unconditional love and loyalty for America. Drop any grievances or problems we have with our American condition for the time being, or maybe for a generation or so.
Today, that sacrifice continues for Black Americans but on different terms. Black Americans are not being asked to wait (like many others) because we are at war but because the country is broke. There can be no more spending by the government to try to get the economy going and create jobs, and besides, the Republicans argue, more spending won’t work anyway because we know better. Of course, they should probably say, we spent all the money on wars and tax breaks so we do know that the country is broke.
Of course, this is just silly politics. Austerity now is the road to disaster. Banks and corporations are making record profits but the people have to starve, rob to eat, especially Black Americans. It makes no sense.
But while this story of Black America’s woes remains beneath the radar on the tenth anniversary of the bombing of America, also beneath the radar is the reaction of many Black Americans to the unemployment rate and what should happen now. Here is what I am reading more and more: lets’ do our own thing. We have a black President and still can’t get some kind of focus on the severe issues in Black America such as unemployment, poor educational opportunities, and rampant discrimination by financial institutions, so be it, time for a new way – our way.
This is, of course, old stuff: Build your own, hire your own. The pursuit of the American Dream, through traditional means, in other words, has stalled, but we have to eat in the meantime.
August Wilson’s 1992 play “Two Trains Running” explains this dilemma. The play is all about a choice between political pressure to assimilate into the so called mainstream or self help in order to develop your own community and autonomous institutions that will uplift your own. The play is set in 1960’s Pittsburgh. The most important moments in the play are the appearances of a mentally ill painter named Hambone who repeatedly says the same thing over and over throughout the play: “I want my ham.”
Hambone painted a white man’s fence for a ham but was given a chicken. He declined the chicken but continues to demand his “ham.” The symbolism is obvious: Hambone is wasting his time and he is wasting away waiting for his just due just like Black Americans. He should be doing for self.
I am hearing more and more of this these days. It goes back to W.E.B. DuBois’ quest for civic equality v. Booker T. Washington’s famous “drop your buckets” mentality. The Rev. Dr. Martin Luther King, Jr. picked up the DuBois’ banner for the most part; Malcolm X and the Black Panthers opted for their own version of Washington’s self help. Integration was victorious; it is and has been the dominant political and economic strategy of Black America for the last 50 years.
But, in light of those unemployment numbers, is it time for Wilson’s other train to began to ride?
In a review of the play in 1992 for the New York Times, critic, Frank Rich wrote that the characters in Wilson’s play did not place their “hopes” in “distance leaders sowing dreams of lofty change.” They have faint “fantasies of justice.”
Black Americans are still waiting for Mr.Obama. But they have to ask themselves: do they really want their ham or something else? They keep being offered chicken.
Brian Gilmore |
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 “but people, knowing I was from Michigan, would ask me what city. Since most New Yorkers had never heard of Lansing, I would name Detroit. Gradually, I began to be called “Detroit Red”—and it stuck.”
— The Autobiography of Malcolm X
It is May 19, 2010 and I am in Lansing, Michigan. This is the city where Malcolm X, born May 19, 1925 (he was born in Omaha, Nebraska), lived for several years as a youngster.
I drove out to the corner of Vincent Court and Martin Luther King Jr. Boulevard in Lansing, May 19, 2010, where there is a sign marking the lot of the former home of Malcolm X. Someone has placed a wreath here today. Someone has remembered.
The area is not a slum area but people are struggling here. You can see it. Low income housing, third hand automobiles, no name greasy food joints, dollar stores, a lot of people, black, white, or Hispanic, just standing around doing nothing.
Lansing is a city that is often forgotten. But it is the city that not only gave us Malcolm Little, but it gave us Detroit Red, and also, Malcolm X. We know he was here in Lansing at least until 8th grade before he went to Boston to live with his sister, Ella.
But it is a bittersweet place this Lansing for Malcolm Little.
Allegedly, the family's first home in Lansing was burned to the ground in 1929. This was, according to more than a few writers, and historians, because Malcolm’s father, Earl, was a member of Marcus Garvey’s black Pan-African organization, the United Negro Improvement Association (UNIA). Malcolm’s father was eventually killed in Lansing. He was run over by a streetcar. Malcolm’s suggestion was always that his father was put under that streetcar by the KKK. Nothing definitive was ever revealed.
According to a newspaper account of his death at the time, Mr. Little died “because he forgot coat…” The same account states that Mr. Little, 41 years old, was “thought to have fallen under truck.” There was a coroner’s inquest but the damage was done; Earl Little, the glue of the family was gone. The Littles, a mother and 10 children, Malcolm included, were scattered throughout the local foster care system. His mother, Louise Little was committed to a mental hospital in Kalamazoo.
It was in Lansing that Malcolm X became disillusioned with becoming something in life, He was a very good student and became class president of his mostly white class. But in a very famous exchange, Malcolm’s English teacher, Mr. Ostrowski told him that becoming a lawyer was not a realistic goal for a black boy. He, Malcolm, should focus in on perhaps becoming a carpenter. Malcolm, as the story goes, was finished with school after that incident.
He left for Boston not long thereafter and became “Detroit Red.” He wound up in prison, and after his rehabilitation, and commitment to a new life in the Nation of Islam, he was now Malcolm X, the revolutionary leader who has come to symbolize the black experience in America even today.
That Lansing experience framed Malcolm X. His father’s pride and death, the destruction of a black family, the racial hatred of an educator telling a very bright black boy that he was nothing.
Then “Detroit Red” and the resurrection years later as our black shining prince.
There are two positive anecdotes from the world of Lansing, Michigan worthy of note.
First, in 1958, Malcolm X married the love of his life Betty Dean Saunders or Betty X (later Betty Shabazz) in Lansing. Who knows why Lansing was chosen to make their union real?
The couple gave birth to five daughters and by all indications, their marriage was a dedicated and faithful union. When she died after being burned in a fire started by her grandson in June 1997, she was buried in Ferncliff Cemetery, in New York, beside her husband.
Also, on January 23, 1963, Malcolm returned triumphantly to East Lansing (Lansing) and gave a speech at Michigan State University. The speech (it is available online with the right computer software), entitled, “Twenty Million Black people in Political, Economic, and Mental Prison,” lasts 21 minutes and to Malcolm’s personal satisfaction, several of his former white classmates from grade school attended.
His former classmates could not believe some of the “fearsome aspects of" Malcolm's "national image.” They came to witness for themselves what their Malcolm had become. One of his classmates, a female, who had not laid eyes on Malcolm since he dropped out of school after his disillusionment, left the Michigan State speech “bewildered that this fiery podium speaker had no trace of… her gentle friend…
This is Malcolm X and the city of Lansing. May 19, 2010.
(a version of this essay originally appeared in Ebony Magazine online - May 20, 2010)
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 There isn't any doubt in my mind that the replacement for Justice John Paul Stevens should be a woman. Women make up half the population anyway so why shouldn't the court reflect the population. Besides, the Court has been run by white men basically since the beginning of time and has never, ever had a man who wasn't of European descent or African-American. This is a shoddy record.
Nevertheless, the same rules suggested in my entry on replacing Justice Stevens with a man should apply if President Obama nominates a woman: intellectual astute and sharp, young, progressive, and to add - a person willing to confront the conservative bloc on the Court. Here's one no one has even considered:
Michelle Obama
Don't laugh. And don't worry; he won't do it. But still, it is nice to dream.
President Obama needs to shake that place at its foundation. Nominate the First Lady. Is she intellectual sharp? Certainly. Is she progressive? Sure. Is she willing to confront conservatism? I am certain she will put Roberts and Alito and Thomas in their place when the moment arrives.
Democrats are probably afraid of her because they think she is a divisive choice. I guess I should remind everyone that no matter who Obama picks, it will be a divisive choice. The GOP is committed to division and obstruction. They don't govern; they wait for campaign donations. Anyone who governs offends them because it means they have to actually do something.
But Mr. Obama says he is committed to someone who understands ordinary people and how the law affects them. His wife doesn't meet that profile? Mrs. Obama does and that is the point. Nominate her. The GOP will be paralyzed again with fear. She also will let Roberts and Alito know that they will be challenged on all of their outlandish views. Throw in the fact that she is in her mid-40s and we are talking 35 years on the Court.
But he won't do it, and she wouldn't accept. Mrs. Obama loves her children and her freedom (within the confines of power). She also wants to go back to Chicago. I am sure of it. It is still nice to dream.
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 Pragmatism is telling President Barack Obama to name a consensus builder, a moderate, to fulfill the soon to be vacant U.S. Supreme Court seat held by the retiring Justice John Paul Stevens. Stevens, a legend, and brilliant legal mind, has big shoes to fill.
But on this one, Mr. Obama should ditch the pragmatism. He needs to go long on this one and change the game. The safe play is the consensus builder; the bold play is to nominate a sleeper pick, a clear progressive jurist, who is intellectually astute, young, and ready to pursue an agenda that restores the rule of law, protects privacy, and promotes diversity with a living, breathing constitution, not a document lost in the racist and unequal past of the United States.
I am sorry to say that the candidates already being floated by the media are outstanding choices but are really not about the future except perhaps Elena Kagan. And this pick should be about the future, because by the time the new justice becomes a presence on the court, they might be in position to truly resolve some of this country’s dilemmas (same sex marriage for instance or the death penalty).
So what they are controversial; now is the time for controversy and ideology. Was John Roberts a consensus choice? Was Samuel Alito a pragmatic choice? Maybe I am search of the next David Souter (I doubt it), but really, I am in search of the next William Brennan or someone to the left of Brennan to balance this thing out a little. Activists and commentators on the right swear the Court is unbalanced; yet a conservative has been Chief Justice for 40 years now. This is why we need a little bit of ideology. We need a judge we know is a progressive who is going vote progressive. Roe v. Wade is the law and even better, it should be the law. Miranda v. Arizona is the law, and it should be the law. Affirmative action is the law and efforts to overturn it are driven by racism. What nominee would ever say any of that?
No one truthfully. But even still, let us dream a bit.
So you ask, who are these sleeper picks out there that no one has heard of (this is a good thing, actually)? We will do this in two parts, men, and then women (in a future column). Here are three men that Mr. Obama should consider in order to shake things up at the Court. We know Mr. Obama is a hopeless pragmatist but we are dropping the names anyway.
Goodwin Lui
Goodwin Liu was recently nominated to the U.S. Court of Appeals for the Ninth Circuit and the Republicans have thrown up roadblocks. This is because Mr. Lui is a rock star in the legal world and a progressive. He is in favor of abortion rights, diversity, and is big on the fact that Bush administration trashed the U.S. Constitution as they ramped up the war on terrorism. He has written about it so he is a known quantity and is trouble for the originalist crowd because he knows the original constitution was undemocratic. Yet, most importantly, Mr. Lui criticized both John Roberts and Samuel Alito for their views. This makes him the perfect pick: why not have someone on the Court who is prepared to intellectually challenge the conservative block currently sitting on the Court?
Aderson Francois
Professor Aderson Francois is currently a law professor at the Howard University School of Law, and is like Gordon Lui, an intellectual rock star. Professor Francois is just the kind of person the GOP is afraid of because he has no extensive writing history that can be used against him. In fact, if he were the nominee, everyone would say: Who? But Professor Francois is as qualified as anyone. He worked in a corporate setting as well as the U.S. Commission on Civil Rights and is a champion of civil rights and a scholar on constitutional issues. In the future, when the Court finally extends marriage equality to all (same sex marriage), Francois will be the person who can deliver the opinion because he has written about the topic from a historical vantage point. He practices in federal courts right now as he is a clinician in the civil rights area.
Eric Halperin
No one has heard of Eric Halperin either and that is good. He works at the U.S. Department of Justice as Special Counsel on Fair Lending. He has extensive experience in litigation and was for a long time, the Director of the Center for Responsible Lending. This organization was about ordinary people which is where the Court has been lacking for decades now. Justice Earl Warren departed back in the 1970's and the conservatives took the place over. Halperin, like Ralph Nader, is consumer focused and is a top notch attorney with again - no extensive paper trail but it is safe to say, he is progressive on many of the key issues. He probably does not want to be a judge but it is likely he would make a great counter to the conservative judicial movement on the court. He is also, as required by your writer, a young man.
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 With little, if any, notice this past week, the 50th anniversary of the student sit-in movement arrived. It was, indeed, 50 years ago, that four college students in North Carolina, decided they had had enough. They entered a Woolworth's store in Greensboro, North Carolina, sat down at a lunch counter and asked to be served. The lunch counter did not serve the four students because they were black. The date was February 1, 1960. It was a social earthquake that these four young black men risked their lives and future that day, but they did, and all is different, in the United States at least partially because of them.
The students sat for two hours that day, and did not get served. The store closed and they departed being sure to report back to their friends and fellow students what they had done. The next day, more than 20 students appeared at the same counter, and the modern civil rights era had begun. The black students had courage and were fearless; history was on their side too.
I recently wrote about the moment in commentary for the Progressive Media Project. The opinion piece has already appeared in several newspapers. It is good to know that the word about this historical event is trickling out. Yet, reading some of the comments one would be disturbed at the attitudes of some of this country's citizens. Here is one comment to my article from a Fredricksburg, Va newspaper:
"This is Black History Month. Why not USA History Month instead? Why do we have the UNCF and Black colleges? Did our current President attend one of these colleges? Why do we have a Black Miss America contest when our current Miss America is a beautiful, talented, and humble black woman? Why do we have the BET? The NAACP? And any number of other racist programs? Why do we keep telling non-whites that they need these programs? That they are not good enough to compete without them? When will it stop? 1 USA?"
There seems to be complete disconnect when reading that response. How is that the person reads about the sit-ins, an incident where human beings want to be treated equally, and they decide it is an opportunity to attack the very idea of diversity? It was, to say the least, a disturbing comment but needless to say, one of many. Another comment stated that the sit-ins were something akin to affirmative action. How can allowing people to sit down, order a meal, and pay for it, be affirmative action?
Ultimately, these comments reflect a failure of the country to not only oppose racism but to promote diversity, and not as a novelty either but as something which is the way of the world. Perhaps, we need mental sit-ins to change the way we think.
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 It has been said quietly, amongst many African-Americans in Washington D.C., ever since Michelle Rhee took over as Chancellor of Public Schools, that she had been brought in to shake things up. It has also been said amongst many of the same people (people I have spoken to) that she was trying to do it as "the new white person" meaning, she is doing what a white person cannot do because she is Asian, and a person of color as well, a minority so to speak. It was a dicey allegation when I heard it, and Rhee, who is intelligent, and seemingly well intentioned, certainly doesn't come across that way. However, more than one person said it, in fact, many said it.
Yet, it is likely now that the racial drums will beat louder now because of two events: the improvement in math test scores amongst D.C. Public Schools, and Rhee's rather coy comments regarding the firing of an African-American principal at Hardy Middle School in Washington D.C.
The first of these events is obvious: while test scores amongst students is up, the test scores of black students barely moved. Chancellor Rhee framed it that way but the very next day, The Washington Post, brought her back to earth. The most vulnerable group, the students who this is really all about, are not improving yet Rhee was happy about improved test scores. The subtle implication: oh, those are just the blacks, they're stupid anyway.
The second event, the firing of Patrick Pope, principal at Hardy Middle School also has racial implications though not as obvious. Hardy, for the record, is located in Georgetown, one of the more affluent areas of the city, and an area with a high concentration of whites. The children, though they are located near pretty good public schools, don't attend these schools. Rhee wants to change that. In addition, at a contentious meeting regarding the firing, Rhee's attempt to align herself with the neighborhood parents, crashed and burned on the policy runway. Her knowledge of the situation, according to reports, was awkward.
In the end, many concluded that Rhee simply wants to do something; what that is, no one seems to know. Parents of black students think it is racial.
While no one can really know, to suggest that race played no part in decisions involving a school system that is still mostly black is corrupt. It would better for Chancellor Rhee to deal the cards straight and not try to cup cards and cheat to win. Whites have been pouring back into the city for a decade now and the city's racial make-up is flipping. This is a fact. It would only follow that white families seeking to stay would want the racial make-up of their schools to begin to reflect the city's racial make-up. To assert otherwise is a bad reflection on anyone. The real shame is, the schools are awful but now that whites are returning to the city, there is finally some real talk of change. Too late for so many black children with diplomas who can't even read, I guess. |
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In the end, in the late hours in Washington D.C.., Speaker of the House, Nancy Pelosi delivered the goods. Comprehensive health care reform was voted upon by the House of Representatives, and despite the fact that many in her party have no spine, no guts, she had enough votes to pass the bill. The tally - 220-215. The other tally, if this passes and works, is even more important: 36 million people without coverage would be covered under this plan. The 220 is important; it is more than George W. Bush's tally on the Medicare prescription drug benefit law. On that late evening in December, only 216 vote in favor; 215 voted against. And even with the controversy back then about why the bill was bad and would do bad things, the sky has not fallen, all is fairly well, and Congress continues to work to try to make it better.
The most interesting vote Saturday night was without a doubt the Republican - Joseph Gao, of Louisiana. When I saw his name as voting "yea," I turned to my wife, and said I bet you he is from New Orleans, a black area.
Of course, this is true. I had forgotten Gao, but perhaps, I hadn't. Gao had beaten William Jefferson, the embattled Louisiana Congressmen, when Jefferson was under siege and under indictment for bribery and other allegations (Jefferson has since been convicted).
I have no idea why Gao voted for the bill and all of the other Republicans voted against it. The only mention of the bill on his site is a YOU TUBE video announcing he is going home to read the bill.
However, I can speculate why he voted "yea."
For one, I suspect his district which encompasses New Orleans, supports health care reform overwhelmingly. Second, considering New Orleans is a major part of the district, the city could use health care reform considering it is still trying to cover from the aftermath of Hurricane Katrina, more than four years ago. Finally, he knows his chances of being re-elected are slim considering the district is Democratic, for the most part. |
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 President Barack Obama has been advised by Senator Mitch McConnell, and Senator Jeff Sessions, to not name a "judicial activist." This is a fine time for the Republican opposition leaders to speak up againat judicial activism. The current Supreme Court has a couple of judicial activists on the court right now but they are Republican appointees.
Judicial activism, and the use of the term, reminds me of my brother Mike's favorite saying - one man's terrorist is another man's freedom fighter. This is true. In fact, truth is the law is an activist sport, by nature.
Applying that to the history of the Supreme Court, here's the summary of the usual debate: conservatives think the Warren Court (Chief Justice Warren served from 1953 to 1969 as Chief Justice) was an activist court that made the law and didn't interpret the law. They still cite the Warren Court as problematic for the country's values.
Black Americans, on the other hand, and other marginalized groups think the Warren court was simply enforcing the rule of law as it is written, but long denied to them due to discrimination and unequal treatment. Many others believe that the Warren Court was simply reinforcing the notion that the Constitution is a living document that must evolve in order to remain relevant. In other words, memo to Clarence Thomas and Antonin Scalia; this isn't 1789; this is 2009.
With that said, one of the most activist decisions of all time was the Republican led Bush v. Gore. Somehow, the Republican appointees believed that George W. Bush, one person, was being denied equal protection of the laws because the state of Florida, decided to allow election canvassing boards to count the votes in their state in the election of 2000. It was a low moment in judicial history that reeked of activism. The Republicans fashioned a decision that stopped election activities of a state. Is this judicial activism?
In June 2008, in the now famous Heller case, Justices Scalia, Thomas, Roberts, Alito, and Kennedy, found a right to bear arms in the U.S. Constitution even though the Court has never, ever, in its history found an individual right to bear arms. In fact, the Court held in 1939 just the opposite and such language is simply not in the Constitution. Is this judicial activism or neo-originalism?
I always tell aspiring law students that what legal minds (judges, lawyers, etc.) do is reach their decision and then go back and find the justification for the decision. It doesn't happen the other way. Lawyers are lawyers. The law students are appalled but there is truth to it.
Now, as for the McConnell-Sessions call for President Obama to not nominate a judicial activist, I urge him to respectfully tell them both, thanks, but no thanks. When I need your counsel, he should urge, don't worry, I know how to find you.
And there might be a need for an activist on the court right now. Antonin Scalia, an alleged originalist, but really a conservative activist, is already there. There needs to be some balance to the activism. A little activism, if we accept the conservative line, destroyed Jim Crow, enshrined the right to a counsel in criminal proceedings in our lives, and provided women with privacy in reaching their very personal, and often difficult reproductive choices. If that is activism, let me have it, Prez. |
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Monday, 04 May 2009 22:13 |
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President Obama’s Supreme Court nomination is moving quick, it is rumored, and here is the tale of the tape.
 Senator Harry Reid says he wants to move fast on the nomination; this is good.
Senator Orrin Hatch says Mr. Obama assured him no extremist is in route to Washington D.C.; this is irrelevant. Mr. Hatch controls nothing and is a conservative.
Senator Arlen Specter, the now ex-Republican, is out of the Judiciary committee as the GOP's voice (the committee that will oversee the hearing); Senator Jeff Sessions, conservative is in. So what? Welcome Mr. Sessions, sit down and cast your one vote.
The conservatives have already conceded the cause is hopeless; their plan is to use the nomination as a political tool to again stress to the nation that Mr. Obama is a liberal. So what, but be careful; the GOP might be down but they are still clever and have money.
The short list contains many who are well over 50 and this is not good. Lets find a 45 year old health nut whose from a genetic line of long lifers.
The short list does contain a few women and this is good.
The President says there is no litmus test and this is bad. If John Roberts and Sam Alito are not walking litmus tests, my name is John Shaft. Have a litmus test. If you leave your house with no destination, you might wind up at the racetrack gambling on longshots.
Mr. Obama seems to want to nominate now forcing the GOP to play ball before the break which is good. Hold the hearings in the D.C. in late July/early August when the DC swamp water weather will bring about a quick hearing and quick confirmation as Capitol Hill becomes a steam room and a desert all at once.
Mr. Obama is using the word “pragmatist” too much (or allowing it to be used). This is bad. Truthfully, Mr. Obama should forget about pragmatism. Mr. Obama should be looking for the woman version of William Brennan, a person who knows how to build coalitions, can secure the five votes, and stick it to the conservatives without being petty and arrogant. If this is a pragmatist, so be it. If this is a radical, we will take that too.
Some think Mr. Obama should not make waves and should appoint the best candidate and not consider age at all. This is bad. Justices Roberts and Alito will be still on the court (more than likely) when Mr. Obama is a grandfather. This is huge. The country needs a counter to those two votes.
Finally, if Mr. Obama still has doubts about who to appoint, consider the Preident George H.W. Bush-David Souter saga. According to Jeffrey Toobin in his book, "The Nine," Mr. Bush didn’t want a nasty fight for a nominee so he sought out a blank slate with no obvious ideological agenda. Mr. Souter was the nominee and the eventual justice.
Mr. Bush got roasted. |
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Friday, 01 May 2009 18:13 |
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 How delicate history is, folks. Supreme Court Justice David Souter, it is alleged, is resigning. How close the GOP came to their dream. Heaven might have to wait.
Consider the following. Souter, the famous "stealth" nominee with no paper trail, the one George H.W. Bush didn't want to fight over, has emerged as a great jurist for liberal causes on the court. He was on the right side of Bush v. Gore, the now infamous Supreme Court decision that got George W. Bush into office, and he has consistently used a pragmatic approach to respect stare decisis while at the same time not wanting to court to go backwards legally in the U.S.
But if John McCain would have beaten Barack Obama and become President and Souter resigns as we are told he is going to do, another Thomas-Scalia retro-jurist would be nominated, and who knows what the country would look like years from now. McCain was on record as wanting a Scalia or Thomas type for the court.
But forget about Souter for a moment. The real question is - who shall Mr. Obama nominate? Here's your writer's prototype.
The nominee should be left of center. The nominee should have impeccable credentials. The nominee should be between 40-45 years old. The nominee should be a woman.
Why?
The court needs a major shift if you ask me and a woman with progressive and pragmatic credentials in the solution. Case in point: if Justice Souter is considered a liberal, something is amiss here. Souter is not a liberal. Justice Anthony Kennedy is considered a centrist on this court and he is a solid conservative.
The thing is, the court is so far to the right that the center is not a real center. The GOP doesn't nominate pragmatic mavericks types like John Paul Stevens anymore; they nominate right wing ideologues - "Manchurian" judges, my brother said the other day.
On the court right now are four hardcore right wing ideologues: Alito, Roberts, Thomas, and Scalia. Scalia and Thomas call themselves "originalists" meaning the Constitution's text doesn't change from generation to generation. The problem with this approach is that the document did change and it had to change.
Slavery was once legal in that document and blacks and women could not vote. Is Thomas against the 13th Amendment? Is Scalia opposed to sufferage?
The document doesn't state that women can use birth control but to suggest that women need a new law to provide them with a right to do something completely private in their own home is foolishness. It is also sexist. As Thurgood Marshall noted (and others), the Constitution is a living document. To suggest that it isn't, is convenience.
Thus, I am asking for Obama to name a woman to the high court. A young woman. A progressive, liberal thinker who can defend her positions and records against the best. I dare the GOP to oppose a woman who is John Roberts' polar opposite in ideology but his equal in legal skills. Mr. Obama should dare them as well. |
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Thursday, 30 April 2009 22:13 |
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 Someone said the magic words today: "special counsel."
The discussion was the continuing controversy over torture and whether the Obama administration should go after any and everyone who was responsible for that fiasco. Attorney General Eric Holder is being urged to appoint a special counsel to conduct an inquiry into the Bush administration's torture program.
Already, Condi Rice's name has been floated as a potential target of a government probe for statements she made regarding torture, and federal appeals court judge, Jay Bybee, is the focus of a MoveOn.org campaign to be impeached for his role in writing the memos that got the torture program its alleged legality.
But now that it's readily apparent that the battle over the torture will wind up in the hands of a special counsel, the question is, of course, what is a special counsel?
Well in the modern era, special counsel is really an "independent counsel." It has its roots in the post Nixon era and Watergate. The law, the independent counsel law, set up a mechanism outside the Department of Justice to investigate potential crimes at the highest level of government. Many legal observers believe it was mistake and the law did die out years ago.
But the law others insisted was necessary after Richard Nixon had trashed the constitution so badly that Congress felt driven to provide something else to ensure the credibility of government. There were many special counsels appointed over the years, and much of the time, the special counsel system worked. During the Clinton era, after the special counsel process (led initially by the infamous Ken Starr) brought about Bill Clinton's impeachment, the statute lost its credibility and was doomed to die.
The ball is in Attorney General Eric Holder's court (no pun intended) now. He will, I predict, appoint a special counsel very soon. He must be tired of the daily questions and leaks. He has to get the torture debate out of the media and digital communication world. His only real problem now is who can he appoint who will be looked upon as a fair and impartial judge of those who are allegedly connected to the torture program? Can these two warring ideological factions, revenge filled liberals, and contempt filled conservatives, can they agree on Holder's selection? |
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The debate over torture has now deteriorated into verbal banter about whether the torturing yielded good information. Dick Cheney is leading that contingent. They also believe national security has been compromised because torture is no longer allowed (this is the suggestion). This is suspect. The U.S., according to the facts, did not torture for decades, and never was the country attacked during this period. So if torturing people was the key to our security, why weren't we using it years before the Iraq war? We all know torturing was hardly the magic bullet that kept the country safe and considering we aren't going to torture (so we have been told), it no longer matters. Torture, in this instant, was all about revenge for 9-11, hatred.
The debate about obtaining useful information is bankrupt as well. Anyone who believes torture provides good information probably believes that starving children will make them behave better. Chicago provides the best case against torture.
For decades, one small segment of the Chicago police department tortured. This part of the department obtained a lot of coerced and false confessions. People wound up on death row because they were beaten and they confessed to crimes they didn't commit. Electrocution of the genitals was one of their alleged tactics (sorry, no waterboarding occurred as far as we know).
Eventually the dirty truth was revealed, and then Governor George Ryan made a good attempt at making things right. But the damage was done. Lives were lost, time was lost, and torture was revealed as evil and immoral. It is. The city is thinking of prosecuting the torturers.
The Obama administration wants to turn the page on U.S. torture and let it all go. As Patrick Leahy, the Vermont Senator noted today, he wants to turn the page too right after he reads the page first.
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