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Friday, May 1, 2009

Color Her Justice (Or, If the Shoe Fits)

Supreme Court Justice David Souter recently announced that he would step down, clearing the way for President Obama to appoint a new Justice in Souter's place. Immediately pundits were abuzz with possible candidates. One strain of commentary was particularly salient among the progressive bloggerati: President Obama should appoint a woman, and she should be a woman of color.

That seems like an interesting possibility, in light of the fact that few women (and no woman of color ) have graced the bench of our highest court. Imagine, another pair of pumps to keep the wing tips at bay. (For some people the relevant dismissive gendered metonyms are "skirts" and "suits". I'm a shoe person, what can I say? ) Who will she be? One prominent name offered is Judge Sonia Sotomayor, an Associate Judge of the Second Circuit Court of Appeals. Judge Sotomayor, a Latina (or a His-Panic, as Conservative commentator Pat Buchanan seems to pronounce it, Freudian slippage evident) is someone whose name has been offered for high judicial office from time to time by both Democrats and Republicans. She is, according to some, that elusive creature, the "political centrist." Hmm.

What does that mean? Or, more to the point, should we be worried? Choosing Justices for the Supreme Court is fraught with the peril of getting it wrong, that is, choosing someone whose pre-Court behavior ends up having little to do with his or her Court behavior. History is full of examples. David Souter, the Justice to be replaced, most easily comes to mind. Justice Souter was appointed by George H.W. Bush after having been touted as a "confirmable conservative". His voting record has instead mostly been one of studious moderation, as he aligned himself with the more liberal wing of the Court in later years. Anther famous "mistake" was former Chief Justice Earl Warren, who was appointed by Republican President Dwight Eisenhower on the premise that he was reliably socially conservative. The Warren Court, as most of us know, was instead the source of a series of landmark decisions that changed the social and jurisprudential landscape of the United States.

Several recent appointments, especially those under the second President Bush, are seemingly more true to expectations. Chief Justice John Roberts for the most part has certainly lived up to the hype, given his decisions in cases such as Parents Involved in Community Schools v. Seattle School District No. 1 , where he penned the majority opinion disallowing the use of racial classifications for purposes of school integration. Roberts: ""[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—Gee, is that all we have to do? Who knew? All that time wasted living in a racist society..... Justice Samuel Alito, another recent conservative pick, has also done yeoman's work for the conservative cause. He was nicknamed "Scalito" in the early years of his term for his fairly consistent concurrence with uber-Conservative Justice Antonin Scalia.

But the truth is, looking closely at the records of even the ostensibly most conservative judges reveals some streaks of judicial independence. It may well be that tenure on the Court often works the way it's supposed to work—there is a smoothing of sharp edges as the pure fire of justice reshapes extreme political ideologies. Yes, there is still a left, right, and center on today's Supreme Court. But those typologies may be increasingly more blurry and consequently less useful in predicting how a Justice will rule.

If this is the case, what then is the role of race and gender in understanding the type of jurist a woman of color will be? Past and ongoing racial and gender discrimination in the United States means that women of color often see life through a particular lens, one that likely affords them a clarity of vision about issues of equity. What they observe through those raced and gendered lenses, however, may not be what we think. For instance, Justice Clarence Thomas, appointed by George H.W. Bush to fill former Justice Thurgood Marshall's seat, while an African American, is certainly no Thurgood Marshall. He must have been (and must still be) wearing 3-D glasses.

When President Obama goes out seeking the Supreme Court nominee who best fits the glass slipper, let us hope (choose one of the following shoe metaphors):

--the shoe fits.

--the nominee clicks his/her heels together three times and brings us back from jurisprudential Oz.

--(s)he's already walked a mile wearing the other one.

--the nominee doesn't take it and throw it at the American people.

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