On yesterday's NPR "Tell Me More" show I listened to Harvard Professor Charles Ogeltree perform a "fish don't know he wet" move. The notion that "liberal judges are in the best interests of the Black community, the nation and for social progress" (my words) rolled off of his tongue without being challenged by the show host or any other of the panelists.
For Professor Ogletree the legacy of Civil Rights that have been won and that are yet to be obtained is the notion that trumps all other considerations in regards to the appraisal of a judicial candidate.
For me - a person who has done research upon the effects of "Justice Thurgood Marshall Justice" upon the social order within the Black community the irony that Elena Kagan had clerked for Justice Marshall increased my curiosity. For Ogletree both Marshall and Stevens were "liberal icons" and "champions of civil rights". He had hoped that Ms Kagan would follow in the shoes of both of these associate justices if she made it to the Supreme Court.
Lost in this sea where the Black Progressive swims is any particular motivation to appraise and recalibrate their permanent struggle for "justice" through promotion of leftist-fundamentalist jurists. I noted a few weeks ago about how a blogger who frequently reports about the threat of "right wing extremists" had the belief that a "progressive" was better than a "liberal" merely because he was to the left of a liberal. In the salt water that my frequent debate adversary swims in he thought that it was a given that to be "more left" was to be "right". No need to substantiate his assumptions.
In my view the Black Community and increasingly the entire American society is living under what I have termed "Justice Thurgood Marshall Justice". This is the legal theory which is largely silent with their attacks upon individual criminal defendants and the harm that their actions have done to the community. When this criminal defendant receives injury by the judicial system, we see those who operate under this theory come to life. The assailant is now the victim.
My challenge to this orthodoxy is that it fails miserably when the PROGRESSIVE IS THE ESTABLISHMENT. With so much of their struggle invested in obtaining power and controlling the system on behalf of "the little guy", once their dogma becomes the prevailing order they, in effect, begin to chase their own tails. Absent the amorphous "system" to chase after to render justice - each criminal defendant that they let out onto the street due to a technicality gets let out onto the streets that they live in. That they patrol per their command of the police via the mayors office.
When does the struggle for JUSTICE get placed into the larger container which is the struggle for CIVILITY and ORDER so that JUSTICE can be had per the stable foundation that is present?
The Transaction Of Black Inferiority
With the vacancy created by the retirement of Justice David Souter I mandated that the new judge not traffic in "Black Inferiority" as my primary mandate. In turn we received Judge Sonya Sotomayor. In the "Ricci vs New Haven" case Judge Sotomayor as an appellate court judge ruled that the White plaintiffs who stood before her had some special powers that the Blacks who had been covered via the city's decision to throw out the test results did not have. Later when the case reached the Supreme Court the primary "Black Inferiorist" on the court - Justice Ruth Bader Ginsberg included in her writings specific "dog ate my homework" explanations as to why the Black firefighters had not received scores as high as the Whites. One of these excuses was that the Whites occasionally had family members who were firefighters and thus could give council to their relatives to assist in their studies. Never did Justice Ginsberg make note of the ability for Black firefighters to hold conference with veteran firefighters to obtain this same knowledge - if this was even a valid claim in the first place.
For Justice Ginsberg - it didn't matter. The Black firefighters were inferior via some injury from the past. She felt this in her heart. It was a matter for her to go "excuse shopping" to find some that would stick. She also went back to the case against Duke Energy to bring forth the notion of "disparate outcomes". In this case Duke Energy put forth a policy that all future candidates for promotion to supervisory positions must have a high school diploma. Since 32% of the Whites and ONLY 12% of the Blacks had a high school diploma this policy was said to have a "disparate outcome". In the world of legal theory we are asked to put aside our real world values. In the real world we ask our young people to at least attain the standard of earning a HIGH SCHOOL DIPLOMA so they can experience the BENEFITS that is bestowed to such a holder. In the case of liberal judicial theory -
they see their job as removing the burden that those who do not have such a diploma might suffer, functionally nullifying the benefits of a diploma, worst yet - feigning surprise when certain unintended consequences are produced as they work to undercut the application of such advantages.
It is time for the Black Community to recalibrate the value of a Liberal Judicial bias. It is clear to me that our community is suffering from this present imbalance. IF the fault of the "conservative jurist" is that he seeks to enforce the establishment "status quo" - the aggregate interests being more important than the individual - what happens when the society reaches the point where the order has been so confined that quasi-chaos is exuded? When this anarchy threatens to subsume the system itself is this enough of a cause for the progressive to realize his role as a conservator of the SYSTEM?
For me I do not fear the comparisons to the CIVIL RIGHTS ERA and how progressives played a part in shifting a conservative, racially repressive society into a more open and tolerant one. Lets put this argument upon a balance scale and make note that today the assaults are the same but the actors are different. Indeed there are still "civil rights violations" going on - they are merely not labeled as such. Let us distill the essence of the civil rights violate and instead focus upon his spirit. With the distillation in hand we see that the liberal jurist is not willing to go after the violator with the same aggression that was the case when the dynamics between "little guy" and "big establishment" were clearly delineated.
The only way that our community will receive more competent governance is when those who live within demand holistic solutions from those who are in power in the executive, legislative and JUDICIAL functions over our communities. NO longer can we rest upon our notions of ideological purity for the sake of purity. Instead these theories must be "road tested", made to work in our community or tossed aside in favor of more effective solutions.
I think that it is time to put "Liberal Jurisprudence" on trial.
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