Today, President Obama announced the nomination of Elena Kagan to the Supreme Court. For the past few weeks, legal and political commentators have speculated widely about the President's prospective Court choices, potential procedural barriers facing judicial nominees, and have already been debating the candidate's pros and cons. Justice Stevens’ replacement -- the President’s second Supreme Court nomination during his short tenure -- is certainly significant. Recent Court decisions on corporate campaign spending, DNA evidence in criminal cases, and federal government voters’ rights enforcement, demonstrate the Roberts Court’s hostility toward core civil rights principles. Many insist that a new Supreme Court Justice must be an individual who will maintain some ideological balance in the Court, blocking Justice Roberts’ assault on constitutional protections.However, it can be argued that the nomination process itself, as it currently exists, impedes civil rights progress in the United States.
First, the current confirmation process dissuades the President from choosing the strongest candidates for the job -- nominees with truly robust pro-civil rights records. Before the process even begins, many excellent Supreme Court candidates decline nomination offers because they do not want to undergo the accompanying public scrutiny. In this media-driven age, many prospective candidates simply do not want to have every aspect of their lives turned over for scandal-fodder. Pro-civil rights candidates who have written progressive judicial opinions, those whose decisions reflect pro-civil rights philosophies, and/or those who have displayed pro-civil rights leanings that have nothing to do with their judicial records have come to be proverbial sitting ducks for character assassins. Although the confirmation process is not responsible for the current political environment, Senators often do not exercise prudential restraint in their questioning, arguably using the nominations venue for personal political grand-standing. We cannot know for sure the number of outstanding potential nominees we have lost before the nominations process even started, due to the very nature of the process.
Once a candidate is nominated, she or he faces the radicalization of their judicial persona by Senate members. Civil rights supporters are attacked by the Right as being “outside the mainstream” or “supportive of special rights.” Oftentimes these charges are heavily coded, as they were during Justice Sonia Sotomayor’s Senate confirmation. Justice Sotomayor underwent relentless criticism for her opinion in the well-known Ricci decision, which upheld settled employment discrimination law designed to protect minorities from systemic workplace bias through facially neutral practices. Senators made baseless charges that her opinion revealed some secret anti-white sentiment. These charges gained some traction among the white viewing public who are suspicious of certain civil rights policies, which some see as a form of government-sanctioned favoritism. In fact, this spin-campaign was so effective that it emboldened Senator Tom Coburn to make highly-inappropriate, racist statements about the distinguished judge. Such comments, in my opinion, are much more than faux-pas -- they are invitations to a powerful, mobilized political base and to the general public, asking them to marginalize civil rights issues as [undeserved ‘special rights’ that positively impact only a few].
Finally, the current confirmation process diminishes the relevance -- indeed, the importance -- of today’s civil rights movements. Nominees are routinely asked about their views on landmark cases, their stock answers tend to placate those who will only be satisfied by politically-correct answers. We know, of course, that the next Supreme Court Justice nominee supports Plessy v. Ferguson and Brown v. Board of Education. Professing allegiance to important yet old cases suggests that civil rights is an ancient agenda — one that was sought and achieved during the time of Dorothy Height’s prominence. The Senate’s disengagement with nominees on “live” civil rights issues allow nominees to slip into high-court seats with little accountability or knowledge about their true judicial philosophies. This has a very real impact on all of us; especially America’s most marginalized people. Senators rarely level sophisticated, fair-minded questions on modern civil rights issues such racial profiling against communities of color, women’s right to equal pay, government discrimination against lesbian, gay, bisexual, and transgender people, or the status of American Indian tribal sovereignty. Rather, they tend to hammer through hyper-partisan questions to either grand-stand on “their” issues or tip-toe into a “gotcha” moment. This sort of exchange does little to advance civil rights in this country.
The system of checks and balances serves as a procedural safeguard against executive branch abuse, however, the current nomination and confirmation process has negative implications for civil rights. Courageous Senators, advocates, and members of the general public must push the President to choose a nominee with a solid civil rights record and a strong voice on the issues that affect us all. Senators must delve into the nominee’s judicial record to ask pointed, non-partisan questions about their rationales. In doing so, they can more forcefully challenge those who insist on portraying civil rights as a “special interest” legacy that is longer necessary, while re-introducing congeniality and restoring professionalism and integrity to the confirmation process. Most importantly, Senators must be independent -- they must refuse to support nominees who are soft on civil rights regardless of party affiliation. Values-based tenacity is the true character of the modern civil rights movement. Now, we just need congressional leaders who exemplify that character.
Richael Faithful is a second-year student at American University Washington College of Law. She is Editor-In-Chief of The Modern American, a legal publication dedicated to diversity and the law. She is also a former community organizer with the Virginia Organizing Project. As a law student she continues organize and advocate for radical, transformative change.
(Photo by dsearls.)