Yesterday, I saw some flack-for-hire Republican meathead on The Ed Show make the argument that white men can put themselves in the shoes of women, blacks, and latinos and be fair judges. To prove his point, he noted that nine white men had overruled Plessy v. Ferguson in the Brown v. the Board of Education of Topeka case. That kind of struck me because I had made almost the exact opposite argument earlier in the day. I had argued that Plessy v. Ferguson was a case in point that a panel of nine white male judges could be totally blind to the real-world repercussions of American apartheid in a way that would be totally unthinkable for a court that included blacks or women or pretty much anyone that wasn’t born at the top of the societal totem pole. But, the meathead was right. Nine white male judges had overturned the horrible ruling of a prior panel of nine white male judges.
Of course, the latter panel included Felix Frankfurter, who had grown up in a Jewish immigrant family on Manhattan’s Lower East Side. Frankfurter understood what it meant to be a second class citizen. Until recently, Catholics have felt the same sting of discrimination in this country. The real point, though, isn’t that white men are somehow incapable of being fair judges. Empathy has become a big term recently in this debate about the Supreme Court. There are different kinds of empathy. One can imagine what it is like to be pulled over by the police because of the color of one’s skin. That’s one kind of empathy. Another kind of empathy is actually knowing what it is like because it has happened to you. You can look at statistics about how health care costs cause a certain percentage of household bankruptcies or you can have it happen to your mother, aunt, or daughter.
When considering the real world costs of a given law to judge whether it is consistent with human dignity, it certainly helps to have some direct knowledge on the subject. In assessing the practice of pay-day lending and other forms of legalized usury, there is no substitute for living among the people that feel compelled to make use of pay-day lenders.
In judging whether it is reasonable to require a government-issued photo I.D. when voting, it helps to live or work in the ghetto where almost no one has a driver’s license or the spare money to take a bus across town to purchase an I.D. they need for no other purpose.
It isn’t that Puerto Ricans need a judge on the Court so that someone will vote with them and dole out a form of patronage-justice. They need someone who knows their neighborhoods instinctively.
Almost everyone that has ever served on the Court has lived some kind of privileged life. If you took nine people out of some suburban Country Club clubhouse and asked them to consider what constitutes reasonable search and seizure on the streets of Philadelphia, they would not to be able to come up with as good of an answer as nine people from the streets.
The law is the law, but when you move from the strict guidelines of statutory language to assessing what might loosely be called ‘justice,’ the best Court will be one that reflects the actual demographics of the country. There should be four or five women on the panel. Since white men only make up 37% of the population, there should only be 3-4 white men on the Court. The Court should have someone who didn’t spend their career as a judge. It should have people from all socioeconomic classes. It should have people of diverse religious backgrounds, or no religion at all.
I don’t think you want to be too formulaic about it. But the truth is that interpreting the statutes and the precedents is not something you need to be a genius to do. Every judge has a very competent staff who are capable of doing the basic legwork. The real challenge is to produce justice. And a panel of nine white men (or nine black women, for that matter) might get a ruling right, but get it right seventy years too late.
We need a court with empathy, but not empathy twice removed.
Hmmm. Does anybody remember the race of the plaintiff’s attorney in Brown v. Board?
Are you suggesting that ThurgoodMarshall’s race influenced the Justices?
I think liberals fell into a trap by allowing empathy to be tagged as code for underclass sensibilities — as if Sotomayor is the poster child for empathy because of her gender, childhood experiences, and ethnic ID.
We don’t need a female hispanic or a person who grew up poor because she has more empathy. We need her, or someone like her, because the court is supposed to be a deliberative body, not a robo decision machine. If it is to deliberate in the real world, the one we live in, it profits from as many viewpoints, and thus as many backgrounds, as it can get.
We hear about original-intent mythology ad nauseum, but the fact is the the founders of this republic came straight out Enlightenment thought. Their rationale for democracy was the belief that it is through the winnowing and sifting of varied opinion that we end up with the truth — or a least a good answer. That’s why they’d fight to the death for your right to express a view they disagree with. If the founders were not deluded, it follows that the more diverse the opinions on our highest court, the more surely they will arrive at the right answers. The Soto haters complain that her background gives her an out-there perspective. Therefore she is exactly what the founders would be applauding if they could. While they deliver a strong slap alongside the head to the neo-fascists who pretend to be their acolytes.
So would said meathead be cool with a Supreme Court court consisting of 9 Latinas? After all, ethnicity is irrelevant according to his argument. As a matter of fact, if ethnicity doesn’t matter then why are they even mentioning ethnicity? Their argument is self-defeating…
Since you and I share a penchant for accuracy, let me share with you a bit of legal history. Plessy was not decided by 9 white men, nor by 8 white men. It was decided by 7 white men. Mr. Justice Brewer did not hear the argument or participate in the decision of this case. Importantly, Justice John Marshall Harlan dissented, and wrote, among other things:
“The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”
I try to read the comments but I’m constantly bogged down with “liberal” and “conservative”. Usually the use of “liberal” means socialist/communist and “conservative” means racist. But neither means what they are suppose to mean to me. Therefore in present context they have no use and no value. I’m tired of seeing both used in the negative. I have some liberal ideas especially fitting for an economy that has been tested by greedy capitalists and I have some conservative values that are appropriate for how I feel about people leaving me be while I write at my castle. I reject labels that try to identify my whole person as either liberal or conservative.