Archive for judicial system
In a recently published article, “Of Race, Gender and Justice,” Linda Chavez, a prominent and influential conservative, reiterates some of the arguments she made before the Senate Judiciary Committee in opposition to the nomination of Sonia Sotomayor to the Supreme Court. This article is a splendid example of the White Racial Framework running full-blast.
Chavez has blown out of proportion Sotomayor’s statement that the ethnicity and sex of a judge
may and will make a difference in our judging.
Sotomayor’s assertion pointed to events experienced particularly by nonwhites and females that may heighten their perceptions in judicial cases. There is nothing radical about this statement. In an instance of poor thinking, Chavez contends that Sotomayor’s statement clearly indicates that Sotomayor
believes that one’s race and ethnicity should determine (my emphasis) how someone will rule as a judge.
The root of the “problem,” in Chavez’ eyes, is Sotomayor’s “identity politics.” Chavez explains that
Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions, and the belief that members of one’s own group are victims in a perpetual power struggle with the majority.
Chavez can call it “Identity politics,” but I see it simply as an accurate description of what many minority members feel. The perception of a socially-ingrained, pernicious U.S. racism against Puerto Ricans is widely shared by many Puerto Rican people and intellectuals, both in the United States and in the island of Puerto Rico.
As I write these lines, The New York Times reported that the Senate Judiciary Committee, in a 13-6 vote, endorsed Sotomayor’s nomination. It was widely predicted so it was no surprise.
Speaking of surprises, I saw a column Chavez published on April 17 of this year. The topic was “Supporting Family Values.” Although the column is not free of “Chavezms,” it praises the “illegal” family and disputes predictions that the “illegals” will never fully adapt.
This is the side of Linda Chavez that I’d like to see more of, to the point that such columns would not be surprising anymore.
The Women’s Media Center has put together a devastating compilation of TV-commentators’ racist, sexist attacks on Supreme Court nominee Sonia Sotomayor (3:32):
As the confirmation hearings begin this morning, you may want to take action to support Sotomayor, and you can do that through the Women’s Media Center.
Colin Powell has an interesting comment on Judge Sonia Sotomayor in a CNN Sunday interview: (HT/ Thinkprogress)
[She] seems like a gifted and accomplished woman. She certainly has an open and liberal bent of mind but that’s not disqualifying. But she seems to have a judicial record that seems to be balanced and tries to follow the law. And so I hope we do have a spirited set of hearings. And Supreme Court confirmation hearings tend to always meet that standard. And she ought to be asked about everything from both the left and the right. What we can’t continue to have is to have somebody like a Judge Sotomayor who is announced, and based on one simple tricky but nonetheless case that the Supreme Court has now decided have her called a “racist,” or a “reverse racist” and she ought to withdraw her nomination because we’re mad at her.
Fortunately the senators who will sit on this hearing in the Judiciary Committee after a few days of this kind of nonsense said, “Let’s slow down. Let’s examine her qualifications and the way we’re supposed to at a confirmation hearing.” […] And when you have non-elected officials such as we have in our party [Limbaugh] who immediately shout racism or somebody who is quite prominent in the media says the only basis upon which I could possibly have supported Obama was because he was black and I was black even though I laid out my judgment on the candidates, then we still have a problem.
At this rate, will the Republican party get down to just ten or so serious Latino and black and Latino members sometime soon?
It is interesting too how often whites control the public discourse and terminology these racial discussion are carried out with — with such post-civil-rights-movement, white-invented terms as “reverse racism” and “model minority” — not to mention the basic racial word “white,” which was created in the 17th century in its modern racial sense.
The Ricci case we have discussed touches numerous employment discrimination issues, some of which Ginsburg brought up in her dissent. I have been reading research by Marc Bendick, Jr., and Mary Lou Egan on racial discrimination and inequality in advertising agencies, many part of large global firms. They found that African Americans make up just 5.3 percent of advertising managers and professionals, but the relevant Census Bureau and EEOC data suggest this percentage should be roughly 9-10 percent. Their study found black employees tended to be hired for segregated advertising positions—such as those dealing with customers of color–with less influence and pay than white employees with comparable credentials. Black college graduates with advertising positions were found to be paid about a fifth less on average than their comparable white colleagues.
Many employers, in the private and public sectors, complain they cannot find enough “qualified” employees of color. So, if they do happen to take any remedial action, they tend to emphasize educational strategies (scholarships for students, etc) to improve job situations of people of color. Yet, as Bendick and Egan point out, this is not the main reason for low percentages of black employees. The more important reason is the
persistent unwillingness by mainstream advertising agencies to hire, assign, advance, and retain already-available Black talent.
This unwillingness is rooted in a racist framing of black Americans as employees, and positive preferences for white employees like themselves. One lawyer described this employment arena as one where “favoritism rules and merit is cast aside.”
White networks run the country’s major historically white institutions, including most large companies. Job networks are part of the structure of systemic racism. Deirdre Royster examined black and white students at a technical college and found that, even though they worked harder and did better in their training, black graduates had much more difficulty finding jobs than white students. White networks gave white students much better opportunities. Lack of access to important networks usually has a very negative impact. Compared to comparable white workers, black workers must spend much more time and effort looking for work over their careers. This, of course, makes it harder for them to compete with white workers who have otherwise comparable abilities. Such factors are not even considered in decisions like that involving New Haven–although the dissenting Ginsburg does just touch on the general idea.
Not just in the advertising industry, but in many other employment sectors the central problem is the highly discriminatory practice of white managers operating out of the traditional white racial frame and using predominantly white networks to hire and advance white managers and professionals like themselves.
In this process, as Bendick and Egan underscore in another paper, they typically
ignore the availability of tens of thousands of African Americans with educational and experience backgrounds comparable to whites routinely hired in their industry.
That’s right, tens of thousands. Consider that US reality for a minute. The presence of such very able workers pretty well blows lots of racialized arguments some whites make about not being able to find “qualified” employees of color right right out of the proverbial water. They just do not care to look for them. White power and privilege, again.
Well, our least democratic major political institution, the Supreme Court, ruled today in a 5-4 RICCI ET AL. v. DESTEFANO ET AL decision that white men had been the victims of racial discrimination under Title VII of the 1964 Civil Rights Act. Written by conservative Justice Anthony Kennedy, and joined in by the court’s far-right justices Roberts, Scalia, Thomas, and Alito (damaging gifts of the Ford, Reagan, and Bush administrations), the overview summary starts thus:
photo credit: roberthuffstutter
New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. . . The City’s action in discarding the tests violated Title VII.
That is, they discriminated against the white men who took the test, and would under the city’s decision have to take a new, presumably less discriminatory test. Actually, no one was discriminated against in actual promotions, as the city did not promote anyone, white, black or Latino. The city decided that because no African Americans scored high enough to be in the top promotion pool the tests needed to be replaced by better more-ability-based testing. However, the five racial conservatives on the court argue that in the record there is no “equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.” They, of course, are wrong on the social science evidence.
In her dissent, however, Justice R. B. Ginsburg (joined by Souter, Breyer, and Stevens) not only took the unusual step of giving her dissent orally in court but argued effectively (perhaps because she knows how discrimination actually works?) against the majority decision, running rings around them. She gives a rather sociological dissent starting with this opening line:
In assessing claims of race discrimination, “context matters.” [Grutter v. Bollinger, 539 U. S. 306, 327 (2003).] In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.
That is, there is this little matter of systemic racism. The majority justices completely ignore the 346-year history of slavery and Jim Crow segregation, which has been followed by much successful foot-dragging for four decades now in regard to undoing deep structures of white privilege, but the majority want to ignore that systemic-racism reality and its continuing impact.
One powerful argument that Ginsburg makes is that New Haven’s population is now a majority of people of color, yet the city has disproportionately few fire department officers who are black and Latino. She notes other (some nearby) cities that do not depend on New Haven’s discriminatory testing and thus get a more diverse workforce:
The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes. By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.
The right-wing majority leaves out other important systemic and historical facts, as she notes:
Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American.
That is, a profession that was aggressively white-controlled until well past the 1970s, and in New Haven now has great underrepresentation of blacks and Latinos in ranks like fire captain. One problem that the media has not assessed is the makeup of the exams, with 60 percent of the testing score based on the written exam, and only 40 percent on the oral exam, which got directly at leadership and ability issues. The testing showed huge disparities:
On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. … More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. … As for the seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans.
She notes that numerous white firefighters had important social networks that helped them with the exams, including getting books and other materials quicker and cheaper than the first-generation African American and Latino firefighters. She then cites fairly extensively the testimony in the case of Dr. Christopher Hornick, an industrial psychologist with 25 years’ experience in firefighter testing. He testified that New Havens’ testing had a “relatively high adverse impact” and questioned the heavy emphasis on written over oral and related leadership exams:
We know that it’s not as valid as other procedures that exist. . . I think a person’s leadership skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way.
Ginsburg points out that the right-wing majority ignores Congress’s intent to accent both “disparate treatment” and “disparate impact” in its various civil rights laws:
Title VII’s original text, it was plain to the [1971 Griggs] Court, “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” …Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s “original, foundational prohibition,” and disparate impact a mere afterthought. …Yet the Court today sets at odds the statute’s core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”— something Title VII’s disparate-treatment provision, .. generally forbids. ..This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. …. Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today [Scalia's concurring opinion] . . this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Title VII’s disparate-impact provision calls for a “race-neutral means to increase minority . . . participation”—something this Court’s equal protection precedents also encourage.
This is the heart of the case. She is siding with the 1971 Griggs case that argued that practices that are fair in form, but discriminatory in operation (that is, have a serious disparate impact) are in fact banned by the civil rights laws–especially if alternative procedures can be found, as is easily the case in this firefighters’ case. Bridgeport, Connecticut, is mentioned as having solved the problem with fairer testing for firefighters and getting the needed social-racial diversity–a 20-miles-nearby example. Why not New Haven?
The Supreme Court is an undemocratic institution provided to us in 1787 by some white male slaveholders and their merchant friends, and today it is heavily skewed in a right-wing direction and populated by a quite unrepresentative group of folks–not unlike the skew in the fire captain’s class in New Haven. These justices have here provided another good example of how contemporary racism works. The right-wing majority is operating out of the old white racial frame and pretending that we live in a country with little institutional discrimination, and no centuries-old history of slavery and Jim Crow. We have been an officially “free” country only since 1969, and all the justices on the court grew up under a very undemocratic country with official racial apartheid. Yet cases like this one operate to deny that recent apartheid reality and its continuing consequences in public and private employment settings.
At the excellent Election Law blog / Rick Hasen has a very good analysis of the Supreme Court decision today on the Texas municipal utility district’s fight to get out from under the voting rights law (rarely achieved)–which was to give the district a possibility to get out but not to deal with the constitutionality of the Voting Rights Act. This law is a centerpiece of the 1960s civil rights movement and is a continuing barrier to various attempts to restrict the rights of voters of color–which white-conservative groups still often try to do.
Indeed, over the last few decades, black voters have continued to face attempts to reduce the efficacy of their political participation. Research by Chandler Davidson and Frank Parker has demonstrated that electoral discrimination persists in such forms as vote dilution, gerrymandering, the changing of elective offices into appointive offices, and unnecessary revisions in qualifications for office. Numerous strategies have been seen in each of the presidential elections in recent years.
Considering today’s decision, Hasen recalls his worried commentary not long ago at Slate:
“Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental….What’s especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there’s not much they can do short of holding the act as broadly unconstitutional….The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. Since there’s no good statutory loophole, the larger constitutional question seems unavoidable.”)
On today’s decision, Hasen see Chief Justice Roberts as backing off on his hostile view of the Voting Rights Act, for now:
It is clear he thinks the Act is unconstitutional under the “congruence and proportional” standard, and he’s on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I’ve repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.
Despite Chief Justice Roberts’ longstanding skepticism of the Voting Rights Act and his blistering set of questions to supporters of section 5′s constitutionality during oral argument, the Chief has managed to put together a coalition of 8 of 9 Justices to put the question off for another day.
It is significant that, even with Democrats in control of Congress and an African American president, that a few unelected right-wing judges can threaten to end the civil rights progress in voting and other areas. This shows how fragile some civil rights gains really are, and how easily this often undemocratic system of ours can backtrack.