White Male Victims and Judicial Activists

During the recent Senate Judiciary Committee hearings, no one learned much about Judge Sonia Sotomayor’s judicial philosophy, but there was enough drama to fill a reality TV show. Over four days, seven white, conservative Republican Senators sought to portray themselves as victims of Sotomayer’s ethnic prejudice and judicial activism. They became, in effect, the White Senators Council of the Judiciary Committee. And they were very upset by a statement Judge Sotomayor had made to a group of Hispanic law students at the University of California, Berkeley.

And this is what Judge Sotomayor said: "I would hope that a wise Latina woman, with the richness of her experience, would more often than not reach a better conclusion than a white male who hasn't lived that life."

Judge Sotomayor’s statement asserts that a Latina woman’s experience is richer than that of a white man who has not had to raise families in drug-ridden neighborhoods with poorly equipped schools, a white man who has not had to endure jokes about wetbacks and funny accents, a white man who has not had to prove that he was an American citizen when applying for a job. These experiences, which are commonplace in the Latino community, are sources of wisdom for Latina women who succeed in spite of them.

Sensible Americans understood the judge’s meaning, but the members of the White Senators Council were really hurt. To the quick. After all, they as white men had every right to be expected to reach conclusions that were at least as good as those of a wise Latina woman. They were Senators. Some of their best friends were Latinos.

They drew themselves up in righteous indignation and attacked Judge Sotomayor for being prejudiced against white people. They so eagerly took on the role of victim that I expected them to bring charges against the judge under the Civil Rights Act. One injured member of the White Senators Council, Lindsey Graham of South Carolina, felt constrained to say in his own defense, "If I ever said something remotely like that, my career would have been over."

Senator Graham spoke in code, White Speak Code. Translated, the message was: "White people, despite a three-hundred-year history of racial and ethnic bias, slave trading, miscegenation, and murder, are really nice folks whom non-whites must love, respect, and never say anything negative about."

White Speak Code used to be difficult to decipher, but it is now so prevalent that it is easy to translate. We all have heard the complaint, "I don’t want my tax money spent on people who are too lazy to work and too lazy to learn English." Believe it or not, conservatives think that such statements are assertions of good American virtues. They also believe that only conservative white voters can decode the message. "You-know-who" are lazy, jobless people who refuse to learn English.

In the old days, members of the White Senators Council were more honest about their beliefs. I remember another South Carolinian, the late Strom Thurmond, who yelled "Segregation NOW! Segregation FOREVER!" He also fathered a black girl out of wedlock.

Suppose Senator Graham had said, "I would hope that a wise white man, with the richness of his experience, would more often than not reach a better conclusion than a Latina woman who hasn’t lived his life." Would his career have been over? I doubt it. There is still an elite who believes that the lives of white people are richer than and superior to those of all other ethnic groups. They believe that a white man’s wisdom is gained from telling jokes about the way "illegals" speak, attending schools in all white, drug-free neighborhoods, and making sure their tax money does not go to people who are too lazy to work or learn English. These folks would continue to vote for Lindsey Graham. And for the time being, they will be able to re-elect Graham and all the other members of the White Senators Council.

But not for long. And this is why Graham and his colleagues on the White Senators Council act like victims. They are frightened.

The world is no longer of the white, by the white and for the white. The world contains a growing Latino and African-American population that no longer asks for help but demands its rights, a population that votes and no longer depends entirely on white men for employment. This world contains Junot Diaz and Toni Morrison, Edward James Olmos and Denzel Washington, Ricardo Sanchez and Colin Powell, Mario Molina and Mark Dean. Not to mention Sonia Sotomayor and Eric Holder.

The White Senators Council simply does not understand what is happening in the world. They do not understand that they can no longer order Latinos and African Americans around. Nor can they patronize them. They have to cooperate with them.

And they don’t know how. Frank Rich in his column for The New York Times (July 19, 2009) describes what to me was the most embarrassing moment in the Sotomayor hearings.
"…When Tom Coburn of Oklahoma merrily joked to Sotomayor that ‘You’ll have lots of ’splainin’ to do,’ it clearly didn’t occur to him that such mindless condescension helps explain why the fastest-growing demographic group in the nation is bolting his party.

"Coburn wouldn’t know that behind the fictional caricature Ricky Ricardo was the innovative and brilliant Cuban-American show-business mogul Desi Arnaz. As Lucie Arnaz, his and Lucille Ball’s daughter, told me last week, it always seemed unfair to her that those laughing at her father’s English usually lacked his fluency in two languages. Then again, Coburn was so unfamiliar with Jews he didn’t have a clear fix on what happened in the Holocaust until 1997, when he was 48. Party elders like Bill Bennett had to school him after he angrily berated NBC for subjecting children and 'decent-minded individuals everywhere' to the violence, 'full-frontal nudity and irresponsible sexual activity of Schindler’s List."

Senator Coburn’s wisdom is the true White Man’s burden: ignorance through complacency. What the White Senators Council doesn’t know is not important to them, because it doesn't touch them personally. And here we arrive at what I have observed about conservatives. Conservatives believe that if something hasn’t happened to them, it hasn’t happened. If it has happened to other people, it is unimportant.

Maybe they will acknowledge problems in the Latino and African American communities when those votes push them out of office.

The White Senators Council also assumed the role of Constitutional Scholar-Philosophers when they accused Judge Sotomayor of being "a liberal judicial activist." As explained by the White Senators Council, judicial activism is the unConsitutional assumption of legislative powers by any part of the judiciary, but especially the Supreme Court. However, the term "liberal judicial activist" is really White- Speak Code for any judges whose decisions they disagree with.

Truth to tell, all judges serving in Federal courts—conservative, moderate, or liberal—are judicial activists. They write opinions explaining their decisions of the court, and the decisions and opinions, even the dissents, become a part of the law. The interpretation of the law becomes a part of the law by explaining how the law may or may not be applied, how and why the processes of the courts may or may not be correct, or even whether a Federal or State law is Constitutional. Even whether a past Supreme Court decision is still in effect.

Historians, journalists, and professors have pointed this out. James MacGregor Burns (Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, Penguin Press, 2009) gives us a history of the conflict between the Supreme Court and the President, between the Congress and the Supreme Court, and shows us that judicial activism began with John Marshall’s opinion in Marbury v. Madison (1803). Marshall wrote: "It is emphatically the province and duty of the judicial department to say what the law is." Marshall went on to say that this judicial power "extended to all cases arising under the constitution." Burns tells us, "With these words, Marshall laid the basis for a power of judicial review of acts of Congress—indeed over the acts of all branches of national and state governments—so absolute and sweeping that it would eventually create supremacy of the Supreme Court over American government (emphasis Burns’s)."

Thus began partisanship in the process of the appointment of judges by the President and the confirmation by the Senate. Presidents want judges to decide cases so that their political party’s goals will be supported. So do Senators. Sotomayor is a judicial activist, and so are John Paul Stevens, Antonin Gregory Scalia, Anthony Mcleod Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Gerald Breyer, John Glover Roberts, Jr., and Samuel Anthony Alito.

The White Senators Council wants justices to be umpires, but the analogy is ridiculous. Imagine in a baseball game a close play at third base. Now imagine the runner who was called out appealing to the chief of the crew of umpires on the field. Imagine the manager of the opposing team presenting his arguments in support of the call. Imagine the crew chief stopping the game, listening to the arguments that are presented in a calm, deliberate manner. Imagine, the umpires in a closed meeting presided over the crew chief. Imagine the crew chief getting a vote of all the umpires that were on the field at the time of the play, then assigning a particular umpire to write an opinion that will have to be researched and footnoted by an umpire’s clerk, then submitting the written opinion to the full crew for review, and finally publishing, and maybe, reading the opinion to the fans along with dissents from other disagreeing umpires.
Supreme Court Justices are no more baseball umpires than talkshow pundits are US Senators.

Unfortunately for the citizens of our republic, the White Senators Council behave like talkshow pundits instead of members of what was once known as the world's greatest deliberative body.