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 respect."
-- 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.)
The day Black took his seat on the Supreme Court, the Pittsburgh Post-Gazette came out with a shocking story. Fourteen years earlier Hugo Black had joined the Ku Klux Klan. He had accepted a lifetime Klan membership in 1926, the very year he was elected to the United States Senate, only eleven years pre-dating his Court nomination. In a celebration in his honor held by the Klan during his election campaign, Black was presented a gold passport symbolizing his new life membership in America's ultimate racist organization. Proudly accepting, Black said this on September 2, 1926:
This passport which you have given me is a symbol to me of the passport which you have given me before. I do not feel that it would be out of place to state to you here on this occasion that I know that without the support of the members of this organization I would not have been called, even by enemies, the "Junior Senator from Alabama."
Said the New York Times at the news of this belated revelation of Black's cultural experience, alert in 1937 to the ugly idea of putting someone who judged others by race in a position of power: "Regardless of the present views he holds, and his affirmation of faith in the principles of religious and racial tolerance, it is a deplorable thing that a man who has ever taken the oath of allegiance in a sinister and destructive organization should now take his place on the highest court of justice in this country."
The result of all of this was to drive the shamed Black as far left as he could go as some sort of vindication. Yet significantly, there is one area where Black's Klan beliefs are alleged to have surfaced with a vengeance. As Mark Levin notes in Men in Black: How the Supreme Court is Destroying America, Black played a key role in the 1947 decision Everson v. Board of Education. The case involved the use of taxpayer dollars by a local school district for reimbursement of parents for their children's transportation fares. Some of the money went to parents whose kids were enrolled in Catholic schools. In a decision that reverberates today, Black said no. Unmentioned by 1947 was the news of 1937. As a man holding a "gold passport" of the Ku Klux Klan, Black belonged to a group that was not only anti-black -- but fervently anti-Catholic as well. Said Black's son:
The Ku Klux Klan and Daddy, so far as I could tell, had one thing in common. He suspected the Catholic Church. He used to read all of Paul Blanshard's books exposing the power abuse in the Catholic Church. He thought the Pope and the bishops had too much power and property.
Everson is the decision in which Black, the Klan member who detested Catholics, wrote the famous sentences that have done so much damage to the presence of all religion in America's public square: "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable." In his later life Black was lauded by 1960s left-wing radical lawyer William Kunstler for his liberal decisions. What did FDR think of putting a Klan member on the bench knowing full well that his "cultural experience" could mark Supreme Court decisions? Said Black himself in a 1968 memo:
President Roosevelt, when I went up to lunch with him, told me there was no reason for my worrying about my having been a member of the Ku Klux Klan. He said that some of his best friends and supporters he had in the state of Georgia [FDR's retreat at Warm Springs was located in Georgia] were strong members of that organization. He never in any way, by word or attitude, indicated any doubt about my having been in the Klan nor did he indicate any criticism of me for having been a member of that organization. The rumors and statements to the contrary are wrong."
Apparently they were.
In 1941 FDR filled yet another Supreme Court vacancy with a racist, this time South Carolina Senator James Byrnes, a Democrat whose nomination was confirmed in eight minutes. You read that right. This left zero time for the NAACP to say what it did after the eight-minute time period had elapsed: "If Senator Byrnes at any time in his long public career failed to take a position inimical to the human and citizenship rights of 13 million American Negro citizens, close scrutiny of his record fails to reveal it."
Byrnes was so popular with FDR that he left the Court within a year to take a job in the White House during World War II dubbed as the "assistant president." After being made Secretary of State by Harry Truman, he left to go home and run a winning race for Governor of South Carolina. Why? Byrnes was a fanatic believer in school segregation. He ran on a white supremacist platform, promising he would do "whatever is necessary to continue the separation of the races in the schools of South Carolina."
Additionally, both Senators Black and Byrnes were active opponents of attempts by Republicans to pass anti-lynching bills in the 1930s. The two succeeded in their goals, and attempts to stop the lynching of blacks failed. Lynching, like segregation and slave owning before it, was part of what Sotomayer calls a "cultural experience." It was the "identity politics" and "cultural experience" of the day for some Americans.
H.L. Mencken, the famous journalist of the period, had another description of this cultural experience, having the remarkable audacity to bring religion into the subject. Said Mencken of the actions supported by the two future Supreme Court nominees Black and Byrnes and their support of what Sotomayer calls a "cultural experience": "No government pretending to be civilized can go on condoning such atrocities. Either it must make every possible effort to put them down or it must suffer the scorn and contempt of Christendom."
Judge Sotomayor has surely unintentionally revealed a raw truth of her party and put the spotlight on its longtime philosophy. She has also done something else -- provided the Party of Lincoln a chance to find its voice. Sotomayor's views on the importance of "cultural experience" and its "richness" has inevitably drawn attention to the fierce and fearless rejection of Taney and his Dred Scott decision by the brand new Republican Party and the man who was emerging as its leader: Abraham Lincoln. Rejecting racism and bigotry, from Lincoln to George W. Bush and his appointments of blacks Powell and Rice as the first (and back to back) black secretaries of state, as well as Alberto Gonzales as the first Latino Attorney General, is a "richness" and "cultural experience" exclusive to Republicans.
Rising at the close of the Illinois State Republican Convention on June 16, 1858, just over a year after Taney had handed down the Dred Scott decision, Lincoln, ignoring the advice of friends that his speech was "inflammatory" and that his rhetoric disdaining "Roger" would, in the words of one biographer "come back to haunt him," began with a handful of words that are today emblazoned in American history:
"A house divided against itself cannot stand."
With the nomination of Judge Sotomayor, once again, the American house is divided over the Democrats' insistence that race, that "cultural experience" and identity politics replace the foundation that is the Constitution of the United States.
Those who disagree with this fundamental attempt to change our society from a nation of law to a nation ruled by the racial whims of a Roger Taney or Sonia Sotomayor should take heart and wisdom from Mr. Lincoln:
"We shall not fail," Lincoln said that day, "if we stand firm, we shall not fail. Wise counsels may accelerate or mistakes delay it, but sooner or later the victory is sure to come." Lincoln was right.
How many today will follow Lincoln's call under similar circumstances to "fight the battle through, under the constant hot fire of a disciplined, proud, and pampered enemy"? How many will have the courage to ignore Sotomayor's own race just as Lincoln had the courage to ignore the popularity of a whit e male chief justice in a day when only white men could vote?
The question now is how many Republicans will have Abraham Lincoln's courage to stand on the Republican Party's very birthright as bequeathed by Lincoln himself? To oppose as Lincoln did -- win, lose or draw -- injecting the politics of race into the Constitution of the United States? To oppose Sonia Sotomayor's use of racial politics just as Lincoln opposed Roger Taney's racial politics and the Dred Scott decision?
We will see.
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