Do As I Say And Not As I Do

The nomination of Judge Sonya Sotomayor has sent conservative white men into a tizzy. You would think that their domination of the United States Supreme Court for the past 200 hundred years would make the first appointment of a Latina go down a little more smoothly.

When President Obama announced Sotomayor's nomination, Rush Limbaugh called her a racist. Then Pat Buchannan of MSNBC followed Limbaugh's ignorance by calling Sotomayor a "quota queen," an "affirmative action baby" and whatever other incendiary language from the cultural wars of the 1980's his warped mind could muster.

This morning I listened to Jeff Sessions, the ranking Republican member of the Senate Judiciary Committee, question Sotomayor. His lips dripping with the bitterness of fake disenfranchisement, that seems to be the ideology of new Republican Party, he nevertheless failed to ask one literate question of the soon-to-be-appointed Supreme Court Justice. Instead, he attempted to repeatedly paint Sotomayor as a racist who would favor brown people over true Americans –translation white males.

Sessions consistently opined about "our great history of blind justice in America" and, he surmised that Judges do not bring their personal views to the interpretation of the law. That was about as disingenuous a statement as Dick Cheney saying we did not torture.

Judges, beginning with the United States Supreme Court, filtering down to the State Level, interpret the law based on their personal life experiences and political ideology. As a trial lawyer who has litigated hundreds of cases, I learned to shape my legal strategy based on the Judge's ideology and personal biases. Every trial lawyer does so, regardless of the Judge’s ethnicity.

Moreover, no President has ever appointed a Supreme Court Justice who did not, initially, share his view of the world, blind justice be dammed. To suggest otherwise, is to deny history and insult the intelligence of the American public.
Sessions' assertion of our great history of blind justice is the last grasp of conservatives who are slowly losing power, attempting to rewrite the history before they exit the national stage.

A review of court decisions over the first 200-year history of America demonstrates how blind justice was applied to minority citizens. Plessey v. Ferguson was not a blind application of the law. It was the white majority of Justices blindly applying their moral view that separate but equal was constitutional. That decision stood for over 60 years.

In 1911, the City of Richmond Virginia prosecuted and convicted a black woman, Mary S. Hopkins, for violating the city’s segregation ordinance after she moved into a predominantly white neighborhood. The Supreme Court of Virginia held that the ordinance of Richmond did not violate the United States Constitution.

In 1938, Charles Hamilton Houston, the brilliant black lawyer who laid the foundation for Brown v. Board of Education, argued a landmark desegregation case before the Supreme Court. During Houston's oral argument, Supreme Court Justice James McReynolds turned his back on Houston and stared at the wall of the courtroom. Houston would subsequently train Thurgood Marshall at Howard University, a school McReynolds referred to as that "nigger university in Washington D.C. "

In a 1990 Law Review Article, Judge Leon Higginbotham noted that in the not too distant past, appellate courts have upheld convictions, despite prosecutors' references to black defendants and witnesses in such racist terms as "black rascal," "burr-headed nigger," "mean negro," "big nigger," "pickaninny," "mean nigger," "three nigger men," "niggers," and "nothing but just a common Negro", and a "black whore."

In 1943 the Supreme Court held that it was constitutional to continue to hold innocent Japanese American citizens in internment camps on the West Coast, siding with the Government that Japanese citizens imposed a security risk. Forget the morality of the ruling, it came long after Japan posed a risk to the West Coast of America. Later Justice Hugo Black, who had written the majority opinion, stated in an interview: "People were rightly fearful of the Japanese, they all look alike to a person not a Jap."

As recently as 1986 in Bowers v. Hardwick, the Supreme Court held that the state of Georgia could punish its gay citizens for sexual acts that heterosexual couples could perform without fear of arrest. Justice Byron White, writing for the majority, stated that the court was deferring "to the belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable." White based his opinion on the "ancient roots" of criminal penalties for sodomy.

Justice Henry Blackman writing for the four dissenters, who included Thurgood Marshall, accused the majority of hiding their homophobia behind the cloak of history. In his dissent, Blackman quoted former Justice Oliver Wendell Holmes: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. "

When the parents of the current President of the United States got married in the state of Virginia, the interracial couple would have been prosecuted for violation of the Racial Integrity Act of 1924. The Virginia Supreme Court, as late as 1966, said the law was consistent with the federal constitution because of the overriding state’s interest in the institution of marriage.

On today's Supreme Court sits seven white men; an Afro-Saxon and a woman. None of the white male justices ever felt the heavy weight of being treated different because of their race, gender or sexual preference.

Justice Thomas was appointed because he long ago abandoned any "empathy" for people born in his lot in life. Thomas' views mirrors his fellow white conservatives, both socially and politically.

President Barack Obama’s recently delivered a hour-long speech in Cairo that reflected his Afro-Centric view of the world. That does not mean the president is pro-black or for that matter, pro anything.

It simply means that he stands on the world stage, shaped by living his life as a person of color. He rightfully expects that Justice Sotomayor will bring balance to the court through her life experience as a Latina who has smelled the stench of poverty in a Bronx Housing Project, dealt with language barriers and lived 54 years as a person of color in America.

I suspect Judge Sotomayor will apply the law equally and without bias as much as humanly possible. But when those justices sit around that big round table, discussing the great issues of the day, I hope Justice Sotomayor will remind those six white men and the Afro-Saxon of a non-deniable fact: That Lady Justice may have a blindfold over her eyes, but she has peeked from under it over the decades when Native Americans, African-Americans, Asians, Gays and other minorities petitioned her for justice.

For all of America’s history, justice has been filtered through the lens of privileged white men, who, with few exceptions, shaped the law to benefit white men of privilege. The 21st Century requires that justice now be inspected through the lens of the beautiful tapestry of America’s diversity. We not only need Lady Justice to be blind, but we want her to be fair.