In 1896 Justice Henry Billings Brown, after hearing Plessy v. Ferguson, authored the Court’s majority opinion effectively establishing the “separate but equal” doctrine. This decision ushered in the era of Jim Crow, relegating people of color to second class citizenship while putting the burden of disadvantage squarely on their shoulders. In his opinion, Brown found that, “…the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Henry Billings Brown’s identity as an affluent white man influenced his decision in Plessy v. Ferguson and because of it generations of Americans of color endured discrimination and injustice to an extent white Americans will never know. Brown’s story is an example about how our highest court has institutionalized racism and white privilege. Today, white conservatives are on the attack of President Barack Obama’s Supreme Court nominee Sonia Sotomayor. Her story and potential appointment to the land’s highest court threatens to further deconstruct that privilege and continue moving the court towards racial justice.
Unlike Brown, whose ancestry could almost completely be traced back to the Pilgrims, Sonia Sotomayor’s parents moved to the Bronx from Puerto Rico during the second World War where she was born—making her a first generation Puerto Rican American. Brown’s father owned a mill and was a wealthy Massachusetts merchant. This made it possible for him to attend prestigious New England prep schools and eventually study at Yale. Conversely, Sotomayor’s father, who was a tool and die maker, died when she was nine years old. Her mother worked to send her and her brother to a Catholic School and she later attended Princeton. There the soon to be summa cum laude grad demanded the school admit more Latino/a students and faculty; she eventually filed a federal complaint against the administration for its systemic discrimination.
While it may be unfair to compare these two judges with respect to their legal education because of the rapid change in American formal legal training during the Nineteenth and Twentieth Centuries, it could still provide some insight into how white privilege is manifesting itself in this current debate. Both Brown and Sotomayor found themselves at Yale Law a little more than 120 years apart. Brown spent his time studying between Yale and Harvard but did not have a formal degree until the University of Michigan and Yale presented him with honorary Doctors of Law in 1887 and 1891 respectively—six and two years before his appointment to the Supreme Court. Sotomayo attended Yale Law where she served in an editorial capacity for two law journals.
Before his appointment in1875 to the federal bench, Brown served as a deputy US Marshal, US State Attorney, and interim Circuit Court Judge. His career was not interrupted by the Civil War as he paid a substitute to take his place, and while a supporter of Lincoln, he was not a proponent of emancipation. On the other hand, Judge Sotomayor has always been an advocate for people of color—particularly of Hispanic descent. She served on the board of the Puerto Rican Legal Defense and Education Fund when it sued New York City over discriminatory practices used when hiring police officers and drawing voting districts. She practiced law as a prosecutor and corporate lawyer before being appointed to the federal bench. As a testament to her expertise and commitment to the law she has more judicial experience than any other Supreme Court nominee in 100 years. With regards to judicial experience, if Sonia Sotomayor can edge out every justice in nearly the second half of US history, if not every justice ever, then what problem do her opponents have with her? The answer is simple. They have the same problem with her that they do not have with Henry Billings Brown—she is not white. However, as with Brown, her identity and experiences influence her views and decisions, but Sotomayor’s identity and experiences challenge the status quo, and what is the most effective way to protect institutionalized racism and white privilege? Again, the answer is simple: more racism and white privilege.
Sonia Sotomayor’s identity is forcing news analysts, pundits, and politicians to make observations or raise questions that they did not make during the recent appointments of Justice Alito or Chief Justice Roberts. The fact that these questions, stemming from issues of race and ethnicity, were not asked of those two white males means that these questions are racist. For example, Fox News’s Bill Hemmer and Shannon Bream discussed anonymous reports that Sotomayor “…is supposedly domineering in oral arguments….” This is interesting in that they intended this information to be some sort of negative character flaw. She has spent her life as an attorney and judge and has been educated by of our nation’s top law schools to be “domineering in oral arguments.” Why would anyone want to hire a timid lawyer? The nerve these people were trying to strike was much more subtle. They wanted to play on the racial and sexist stereotypes that say all women, particularly women of color, are loud and emotional. They wanted to make sure that after that comment was uttered their majority white, conservative audience associated Sotomayor with a fiery, emotional Puerto Rican woman; qualities that would lead them to question her intellect and capability of sitting on our nation’s highest court.
Numerous men have questioned her intellectual capacity. On March 28, Glenn Beck stated, “I think the woman is not so bright.” CNN reported that the President’s nominee, while intelligent, did not have the same intellectual prowess as other candidates on the shortlist to compete with the arguments of Scalia or Alito. Pat Buchanan declared her an “affirmative action pick,” while Lou Dobbs claimed her nomination as just a strategy the Democrats are employing to pander to Hispanic voters. This begs the question, were Roberts and Alito nominated because they are white? That despite their previous educational and professional credentials they were selected to serve because they will preserve the status quo and side with white court petitioners and in favor of preserving white privilege? Were their nominations only to court white, conservative voters? No one would ever nor did anyone pose these questions during Robert’s or Alito’s confirmations because they benefit from white privilege. They and all but four other Supreme Court Justices have benefitted from the privilege to be taken at their word with no need for proof. This privilege assumes they went to good law schools and were ranked in the top of their classes as well as that they are competent professionals and completely independent in their decision-making. It is the same privilege that allows the ranking Republican on the Senate Judiciary Committee Jeff Sessions to claim on Meet the Press that Sonia has the ideal background for the Supreme Court, but question her nomination because her being a Latina female might bias her judicial independence.
Session and others question Sotomayor’s judicial independence by pointing to remarks she made at the Berkley School of Law’s Judge Mario G. Olmos Law and Cultural Diversity Lecture in 2002. She spoke about the necessity for judicial diversity when hearing cases regarding sexual and racial discrimination. “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” In discrimination cases that affect people of color, women, and other minority groups it is much more difficult to have an independent judiciary if everyone hearing the case and its appeals are members of the dominate social group whose authority is being challenged. No reasonable person would disagree with that statement. In fact, conservative whites do agree with that statement because they know that the court system has always been partial to them; that is why Sotomayor is a threat. That is why they are opposing this nomination so vehemently. It is a fear that is predicated on the belief that if too many minorities get into positions of power than the tables will be turned on them. So this comment, completely out of context, came across to Fox News viewers by Megyn Kelly, “…that Latina judges are obviously better than white male judges.” While this racist comment was made by Fox News, it has been attributed to Sotomayor making her a “reverse racist.”
Almost immediately after her nomination, the extreme right labeled Sotomayor a “reverse racist.” On his blog former Speaker Newt Gingrich wrote, “Imagine a judicial nominee said ‘my experience as a white man makes me better than a latina woman’ Wouldn’t they have to withdraw? New racism is no better than old racism. A white man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.” While there are numerous issues with his comments, two are of particular importance. First, until Sotomayor’s nomination, white male Supreme Court nominees never had to say that they were better than any potential minority nominees because our society and government said that for them. That is why there have only been four non-white men who have ever served on the court—all of those nominees serving in the past forty years. It is the same reason more than half of this country is comprised by females, but our court currently has only one female Justice.
The second most disturbing comment by Gingrich is this pitting of “new racism” against “old racism.” While at least he acknowledges racism exists, he seems to be viewing “new racism” as being minority groups discriminating against non-minority groups. Racism is racism, but most importantly this idea of “reverse racism” does not exist. Gingrich’s admittance reveals, not surprisingly, that he possesses a limited understanding of racism. Racism is a system of advantage for a particular race of people, which is supported by societal and cultural institutions that reinforce such privilege while systemically subordinating others. Racism is neither a person of color saying they are better than a white, nor is it a non-white hiring or promoting another non-white. Because regardless of individual motives of people of color, white people in the United States can rest easily knowing that at the end of the day the system benefits them. That is why Gingrich and these other white demagogues are so quick to attack Sotomayor as a “reverse racist.” White people feel that they have the most to lose if too many non-whites obtain positions of power; this is not to say however that only whites are against Sotomayor’s nomination.
Interestingly enough the first African American RNC Chairman Michael Steele set the tone of this debate prior to the nomination by getting on television and criticizing the President’s want for a Justice with “empathy”—a Justice with a sense of how the law affects people in their daily lives. On Meet the Press, Steele made it clear that when before the court he does not want judges to consider his life situation or circumstances; he wants them to make decisions based on the letter of the law. Unfortunately, it seems that Steele is unaware that when most people of color walk into a courtroom in this country their “life situation” is already under consideration. According to the Coalition for Juvenile Justice one out of every three young African American men is on parole, is on probation or is in prison. Although youth of color only comprise one-third of our nation’s youth population, two-thirds of youth in prison are non-white. Human Rights Watch has found that while blacks constitute just over 12% of the population, almost 44% of all people held in state and federal prisons are black. Perhaps these statistics justify Sotomayor’s comment for a more diverse judiciary and reinforces that the system is stacked against people of color. If Steele continues to doubt this, he should ask himself if he were arrested for prescription drug fraud, whether or not the charges against him would be dropped without a guilty plea if he simply agreed to continue treatment to get off OxyCotin.
Furthermore, the same racism and white privilege that is afflicting Sotomayor is also plaguing Chairman Steele’s ability to effectively run his party. After the nomination Steele appealed to Republicans to reserve judgment until her record could be reviewed; however, they ignored his plea and went on the attack. Coincidentally, Steele became party chair after the election of our first President who happens to be black. This is to not infer that Steele does not possess the experience or intellect to run such a party, but that his leadership is purely symbolic. If this were not true he would not have had to apologize to Rush Limbaugh for publicly reprimanding the shock jock over comments made regarding his hope that Obama will fail. Also, if his leadership were respected by the largely white party, judgment on Sotomayor would have been reserved until the RNC could devise a rational strategy to challenge her nomination. Instead the white privilege that is attacking Sotomayor is isolating Steele because they view Sotomayor as a threat and Steele as a token.
No one denies that a person’s experience influences the decisions they make, but the real question is how those decisions affect others. Do they support or undermine the status quo? Henry Billings Brown could not divorce himself from his affluence, his masculinity or his whiteness as Judge Sotomayor cannot check her Puerto Rican identity or femininity at the door. Even Samuel Alito acknowledged this fact during his 2006 confirmation when he said he remembers his family when in the midst of a discrimination case and he thinks about how they endured ethnic and religious persecution. However, conservatives excuse Alito for two reasons; first, he was a Republican nominee and second, they can relate to him as a white man. Judicial independence is a false pretense. One can hardly be expected to forget who they are or where they come from when sitting on the bench and delivering opinions. The way to achieve a more just and equitable judiciary is to diversify those who make decisions because whites have had the monopoly on “judicial independence” for too long. It makes sense to have a government whose composition is more reflective of the nation that it serves.
For an authentic dialogue regarding what our nation is looking for from judicial nominees to occur, white Americans must recognize that they have benefited from the system since its inception. We must stop accusing people of being “reverse racists” and consider the meaning of our own words. We should educate ourselves on what racism is and how it manifests itself in our lives and institutions. We must find ways to dismantle our own privilege and that begins by overcoming the fear of what a more equal system looks like. This fear that is propagated by conservative demagogues must be turned into hope that we can collectively move closer towards the promises set forth in our Constitution. In fact, that is the ultimate consideration when we confirm a Supreme Court nominee. Who has the depth, intellect, and character to continue interpreting our supreme law towards freedom and ensuring democracy within our own national borders? Who can further make efforts to reflect our growing national heritage in our highest court?
The most revealing analysis of this event was made on MSNBC by Joe Scarborough. When reviewing footage of President Obama standing with Judge Sotomayor he said, “…that is an inspiring picture to 80%–85% of Americans right there. That picture makes America feel good about itself.” Scarborough points out the obvious—that “old racism” still exists in America. He is optimistic in that he feels the minority of Americans object to such diversity on our courts and within our government; however, if this is true why is the 85% so quiet and 15% so loud? Furthermore, he is only recognizing the blatantly racist minority but ignoring those who will claim other reasons not to support Sotomayor that are not overtly racist or sexist but based on the same right-wing ideology. If the picture of our nation’s first President who happens to be black and his Supreme Court nominee who happens to be Latina makes this country feel so good about itself, then why is this debate so negative?
Few Americans remember who wrote the majority opinion arguing that the Fourteenth Amendment was not infringed by Louisiana’s segregated railcars; however, most Americans would agree that Henry Billings Brown was born in a time and place when people of color were viewed as inferior and that his opinions and experiences influenced his decision in Plessy v Ferguson. The circumstances in which Brown lived do not excuse his racial views or class privileges, but they are also not questioned. Today, we find ourselves debating if a Hispanic female, Sonia Sotomayor, can participate in a “colorblind” legal system. Did Henry Billings Brown?