Obama nominee models Dred Scott Chief Justice. FDR Klan nominee struck at religion.
African Americans are “beings of an inferior order,
and altogether unfit to associate with the white race, either in
social or political relations, and so far inferior that they had
no rights which the white man was bound to
— Supreme Court Chief Justice Roger Taney writing in the Dred Scott decision
“And I wonder whether by ignoring our differences as
women or men of color we do a disservice both to the law and
society. Whatever the reasons… we may have different
perspectives, either as some theorists suggest because of our
cultural experiences or as others postulate because we have basic
differences in logic and reasoning….”
— Supreme Court nominee Sonia Sotomayor in her speech delivered for the Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001
The controversial nomination by President Obama of Judge Sonia Sotomayor to the Supreme Court would not be the first time a Democrat in the White House put forward a nominee who had trouble viewing the Constitution as a colorblind document. A nominee who went on to use his personal racial beliefs as a way to justify the results of a controversial decision from the bench.
The Sotomayor nomination brings America full circle to the beliefs expressed by Chief Justice Roger Taney in the infamous 1857 Dred Scott decision, in which Taney used his personal racial beliefs as the justification to legalize slavery. Sotomayor has been an explicit advocate of the idea that “by ignoring our differences as women or men of color we do a disservice bot h to the law and society.” This is a sentiment with which Taney was in full agreement.
Roger Taney, a prominent Maryland Democratic lawyer and supporter of President Andrew Jackson, was a slave owner, as was Jackson himself. He was given two of the most prestigious appointments in Jackson’s Cabinet, serving as Attorney General of the United States (1831-1833) and Secretary of the Treasury (1833-1834). In 1836 Jackson appointed his friend the fifth Chief Justice of the United States, a position Taney held until his death in 1864. Just as Sotomayor is today touted as the first Hispanic and third woman to be appointed, Taney was the first Roman Catholic to hold the position of Chief Justice.
Unapologetically, Taney held racial beliefs deriving from what Sotomayor calls a “cultural experience.” This cultural experience led to Taney’s firm belief that if one was not of the white race that individual was inferior and that blacks specifically were simply unable to live on a plain of equality with whites. In 1857, with the arrival of Dred Scott v. Sandford on the Supreme Court docket, Taney set about the task of writing his personal racial views into the Constitution. The case involved a slave by the name of Dred Scott, who had sued for his freedom insisting he had become free when his owner had taken him to US territory where slavery was outlawed.
On March 6, 1857 Taney led a 7-2 decision of the Supreme Court in which he ruled that there was a Constitutional right to own slaves. How did he know this? As former Judge and Supreme Court nominee Robert Bork has written: “Such a right [to slavery] is nowhere to be found in the Constitution.” Bork adds that Taney “knew it [that a right to slavery existed in the Constitution’ because he was passionately convinced that it must be a right.”
This is precisely the core of Sotomayor’s repeatedly expressed belief that judges should not only make policy from the bench, but should use the “richness” of their “cultural experience” to do so. This was exactly what Taney did in the Dred Scott decision. He wasn’t shy about it, either.
In writing his decision Taney used what Sotomayor calls the “richness” of his “cultural experience” as a white slave owner to describe Dred Scott and his fellow African-Americans as ” beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations.” Indeed, Taney went on to say that blacks were “so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
So unremarkable did Taney believe his beliefs to be that he ascribed his racial views as “fixed and universal in the civilized portion of the white race…regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”
This is an early version of Sotomayor’s own troubling actions in Ricci v. DeStefano, the increasingly infamous New Haven firefighters case in which whites and one Hispanic who took a race-neutral test were denied promotion, allegedly because of their color. With the discovery of a statement by Judge Sotomayor that “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,” it appears quite clear she followed the same line of thinking employed by Roger Taney in 1857’s Dred Scott decision. To wit: employ one’s racial views as a white slave owner or Latina as a weapon to discriminate against people of a different race than the judge, ignoring the Constitution in favor of the “richness” and “cultural experience” provided by being a white slave owner or Latina.
Plainly put, this line of thinking results in Taney’s Dred Scott decision in 1857 and Sotomayor’s New Haven firefighters decision today. And just as Taney viewed his racial views as unremarkably “fixed and universal,” so too are Sotomayor’s views not seen as controversial among the identity politics crowd. Indeed, National Journal’s longtime legal analyst Stuart Taylor says that “her thinking is representative of the Democratic Party’s powerful identity-politics wing.”
As exemplified by the Dred Scott decision and Roger Taney, racism runs like a scarlet thread through the entire history of the Democratic Party. Today, it goes under the name of “identity politics.” Once upon a time it was slavery, which became segregation, which became lynching, which became racial quotas, which became identity politics. But make no mistake, whatever its disguise, racism is to the Democratic Party as Lord Voldemort is to Harry Potter stories — always present, sometimes visible, sometimes not. Today the face hidden on the back of a professor’s turbaned head, tomorrow the youthful ghost of a Hogwarts student supposedly dead decades earlier. But one way or another, Voldemort is always, always there.
So too with race and the Democrats, as evidenced by two nominees of President Franklin Roosevelt. Like Taney and Sotomayer, both of FDR’s nominees had a cultural experience that turned on race, and one with religion.
FDR’s nomination of Democratic Senator Hugo Black of Alabama on August 12, 1937, was confirmed a mere five days later, rushed by anxious Democrats who controlled the Senate. With good reason. (A considerable hat tip here to Bruce Bartlett, author of Wrong on Race: The Democratic Party’s Buried Past.)
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