Sunday, May 17, 2009


As much as some political commentators try to dismiss the role of race (and gender) in the 2008 presidential election, the facts say otherwise. Obama won the election on the strength of women, black and Latino voters. McCain won a majority of white votes nationally, as has every other Republican candidate starting with the 1968 election.

During his campaign, Obama tried to downplay and market his race simultaneously. He ran as the "historic" candidate, which subtly referenced his racial background. He also ran as the post-racial candidate, in order to avoid being racialized and dismissed as the "black" candidate. Despite its sometimes subtle presence, race played a very powerful role in Obama's candidacy, message and election victory.

Although Obama relied upon identity politics for his electoral success, the White House is instructing GLBT, Latino and women's groups to kill the identity talk. Several GLBT, Latino and women's civil rights groups have urged the president to pick a candidate who will enhance the Court's diversity. No openly gay or Latino person has ever sat on the Supreme Court. Only two women (both white) have occupied a seat on the Court. And two black men have also served on the Court.

I agree that the candidate should not look like a "token" hire, but there are many persons of color, women, and GLBT lawyers who would make excellent Supreme Court justices. There is absolutely nothing wrong with considering diversity as a factor among evenly talented candidates. Reagan appointed the first woman, and gender played an explicit role in the selection process. Bush I appointed the second black justice only after the first black justice retired. Perhaps that was a mere coincidence.

Despite this history, White House officials sound more like Republicans picking a justice than Democrats. They are falling for the utterly hypocritical, ahistorical, and self-serving conservative rhetoric that condemns the consideration of ideology in the appointments process. Apparently, Alito, Roberts, and Scalia are coincidentally conservative.

Now the White House is doing its best to toss aside the very identity-based movements and politics that won the election for Obama. Press Secretary Robert Gibbs says that: "I don’t think that the lobbying of interest groups will help. . . .I think in many ways lobbying can – and will –be counterproductive." Of course, Gibbs never identifies the dangers the groups create by stating their preference for diversity. Also, it seems odd that Gibbs would disparage "special interest" groups, when labor, civil rights, feminist, pro-choice, anti-war, glbt, and many other "interest groups" are essential components of the Democratic Party. Without their support, neither Obama nor Gibbs would have a job at the White House.

This is not change.


Anonymous said...

Prof. Hutchinson,

Would you mind listing a few of the minority lawyers/jurists that you think would make justices?


Anonymous said...

That would make good* justices, that is.

Anonymous said...

Ack. I of course refer to those *who* would make good justices.

Darren Lenard Hutchinson said...

Andrew - my essay refers to persons of color, women and gay/lesbian lawyers. But here are some I would include on a list of potential nominees to the SCT:

Sonia Sotomayor
Barrington Parker (probably "too old")
Harold Koh (No - I do not think the Dean of Yale Law School is a radical anti-US terroist).
Kim McLane Wardlaw
Carlos Moreno
Leah Ward Sears
Deval Patrick
Akhil Amar (not liberal enough for me, but he's a great con law scholar).

I would add: Kathleen Sullivan or Pam Karlan (best of the women academics). They are also lesbian.

Remember, the USA has more lawyers than any other country in the world. Only 9 people can sit on the Supreme Court at one time. Accordingly, there are many qualified people who will never get a position on the Court.

Darren Lenard Hutchinson said...

Andrew, NPR has created a list: NPR's list. I cannot vouch for any of the names.

Kansas City said...

I think it is a great thing that America elected a black president. However, I fear that Obama is far too left wing and inexperienced. It would have been much better for the country if Colin Powell had run and in 1996 or 2000 (imagine how different the political world would have been in Powell had knocked off Clinton in 1996). I think it is obvious that Obama's race was a huge advantage for him. Since he got almost 100% of black votes (especially in the primaries), it was the reason he won. It was a lesser, but still significant advantage in the general election, not to mention the favorable press coverage it produced.

As the the Supreme Court, the process and the court are a shamble. I cannot stand the idea that, most of time, we know how 8 of the 9 justices are going to vote in every significant case. Now, Obama is going to continue the politicalization of the court by picking a justice who vote the liberal view every time. Kennedy and O'Connor are not the most brillian judges in the world, but I would prefer 9 of them trying to get it right than 7 or 8 justices lining up idealogically and allowing Kennedy and/or O'Connor to decide the law.

Darren Lenard Hutchinson said...

Kansas City - What has Obama done to show that he is too leftwing? Also, I would say that he is relatively inexperienced but not "too" inexperienced.

Also, the Court is hardly in a shamble. The Court has always been and always will be tied to the political process. The fact that we "know" how justces are going to vote in significant cases reflects the fact, in part, that they have been jurists for so many years (it is a lifetime job), and the issues seem to repeat themselves.

Finally, I reject your description of the process as Kennedy and O'Connor "trying to get it right," while the others ideological robots. That notion does not reflect judging. The moderate votes are only determinative because the Court is split ideologically. If it were completely liberal or conservative, we would still view the Court as "trying to get it right." Judging and ideology are not inconsistent. The process is inherently ideological -- because courts are commenting on policy and social issues for which most intellectuals have a preexisting point of view.

Darren Lenard Hutchinson said...

PS: Kansas City -- I would rather have seen Powell, rather than Bush, beat Gore. I think that's the difference that most people would rather see.

Second, black voters tend to vote lockstep in the primaries and in the general election. Obama certainly got an even larger share, but if you examine election returns from past primaries, black votes have determined the outcome of those as well. No one can win the Democratic primaries without strong support from blacks and women (which is why Michelle Obama was such an asset to him during the primaries).

Jeremy Pierce said...

Bush I wanted to nominate Clarence Thomas to replace William Brennan, but his advisers told him to wait until he had more appellate judge experience, so he had to wait until the next vacancy, which turned out to be Thurgood Marshall's. So the appearance of his being motivated by the fact that he was replacing a black justice is mere coincidence, as unlikely as that sounds. If he'd had his way, there would have been two black justices serving together for a little while instead of Souter replacing Brennan, and we might have ended up with Souter, or someone else entirely, replacing Marshall instead.

Darren Lenard Hutchinson said...

Hw much appellate experience did Thomas get in the one year between Marshall and Brennan's departure?

Kansas City said...

Prof Hutchinson's comment that "courts are commenting on policy and social issues" is interesting and states a big part of the problem. They should be applying the law.

I think the "lockstep" black voting in 2008 was much greater in the primaries and much more decisive than in prior years. I don't blame blacks for voting for a black candidate, although it is interesting that Obama is only half black without any shared heritage or even life experience as the traditional African American and yet was so unconditionally embraced as an African American.

If you do the math, the effect of black voting in democratic primaries was enormous. If you assume blacks made up 40% of the democratic voters in a state and Obama took 90% of that vote, he already has 36% of total voters and a 32% head start. He just needs to get about 25% of non-black votes to win a majority of the total votes.

Kansas City said...

Obama is left wing because - huge budgets, huge deficits, huge government programs, aggressive exercise of government power. He obviously is a left wing big government guy.

One thing I repeatedly notice about Obama is how self confident and self centered he is. Most politicians commonly talk about how "we" accomplished this or about "our" achievements. Obama is constantly talking about "I" and "me" and "my." He even made his jokes at the recent dinner about how great people think he is. He goes to Notre Dame and talks about himself. He pulls it off quite well, especially if you like him, but if you are neutral or anti-Obama and you focus on this issue, you will be surprised.

Darren Lenard Hutchinson said...

I absolutely dispute your assertion that "leftwing" = "huge budgets, huge deficits, huge government programs, aggressive exercise of government power." Neither party or ideological camp is innocent with respect to these issues. In fact, in recent years, Republicans have presided over more deficit-spending and "huge" budgets than Democrats.

The difference between the parties for most of the latter part of the 20th Century has been the mix of spending. While Republicans like to pour money into "huge" military programs and to engage in "aggressive" policing, and to assault civil liberty in the name of social conservatism, Democrats have increased spending on social programs, etc.

Darren Lenard Hutchinson said...

Kansas City -- you imagine "the law" as something like a physics equation. It is not. The process of stating the law often requires a reference to policy, history, etc. Even conservatives do this:Earth to Orrin Hatch: Even Conservative Judges Make Policy! There isn't much in the constitution that is written in precise and restrictive language. Your view of "the law" is inconsistent with reality.

Second - you should look at the exit polls for the last few election cycles. While blacks certainly voted for Obama in higher percentages, they have pretty much been lockstep before 2008, and so long as their rate of participation is high, their votes pretty much dictate the outcome of primaries (especially if their choice matches the choice of women voters). Depending upon the state, black support for Kerry, Gore and Clinton was well over 70 percent (and sometimes near 100) during past Democratic primaries. CNN has an extensive collection of past election exit polls.

Finally, I think we agree that black support in the Democratic primaries is critical. This predated 2008, however.

Darren Lenard Hutchinson said...

PS: KS - when I said that judges are commenting on policy and social issues - I mean that the cases they decide touch upon some of the most important political issues. When courts rule on abortion, affirmative action, gay rights, criminal procedure, etc. they "comment" on big social issues. The fact that they are educated and intellectual (for the most part) means that they come to the table with some type of ideological perspective. I think your response did not capture the meaning of my statement -- although I stand by my initial response as well. The law is not scientific, biological, or fixed. Legal questions often can support several "rational" meanings.

According, "the law" is not as simplistic as people like to portray it. I say this fully accepting possibility that both Ginsburg and Scalia may have reasonable and "correct" -- yet completely oppositional -- interpretations of the same legal dispute. What makes either interpretation "the law" and the other "ideology"? Nothing except misleading, disingenuous or uninformed political rhetoric.

Finally, I do not believe that you can substantiate your claim that Obama has "no" shared heritage with people who call themselves African-Americans. Some of them are, indeed, African. The "life experience" claim is even more problematic. What life experience did blacks share with past presidents?

Historically, blacks have embraced biracials (although conflict exists). As you may recall, during slavery, biracials were considered slaves (so long as mother was black). They were legally and socially black.

Kansas City said...

I am hesitant to speak with any certainty on racial issues, particularly in a discussion with an African American about the "traditional African American," but here is what I tried to convey.

The "traditional" African American heritage is a person whose ancestors came to America as slaves and then progressed to freedom and citizenship, ofter moving from the South to northern cities. I realize that there obviously are many other African American experiences and heritages, but what I think of as traditional is the classical one.

Obama has virtually no connection to that experience. His father never immigrated to America. His mother was white. He spend his childhood in Indonesia and Hawaii, mostly livng with his white mom and grandparents. It seems obvious to me - neither good nor bad, but obvious.

As to Obama with a white mother being viewed as African American, I think that is probably good for America, but from an objective perspective, it seems odd to me. I think it is a case of virtually everyone for various reasons wanting to consider him African American, so they do.

Kansas City said...

On the law, I speak with more confidence. What the "law" means depends on the case. Some are straightforward or at least simple statutory interpretation cases. Others involve constitutional issues, where there is the tug of war mostly between liberals who want to make social and political policy, and conservatives who want to stay out of the issue. Abortion is a good example. I think those type of issues should be left to the legislatures and the constitutional amendment process.

Darren Lenard Hutchinson said...

KS -- "staying out of the issue" is policy itself. Also, as I detailed in the "policy" link, conservatives don't want to "stay out" of explosive issues like affirmative action, the distribution of federal and state power, etc. They have applied strict scrutiny to trump state and federal policy on a host of issues that are core policy concerns. It is absolutely impossible to portray this as a debate between liberal judges making policy and conservative judges refusing to do so.

Anonymous said...

Hutchinson. Why don't you question anything liberal? It appears here, you are never anything less than argumentative toward right thinking.
Fortunately, you also, are rarely right.

Anonymous said...

Parsing minutia is not a replacement for honest debate. Simply, an avoidance of genuine give and take in an effort to find fine solutions, which might hinder the left in their lust for political plunder. Although, it is preferable to the old "shouting down" routine. (i.e. "the view")

Darren Lenard Hutchinson said...

Anonymous said: "Why don't you question anything liberal? It appears here, you are never anything less than argumentative toward right thinking."Anonymous said: "Why don't you question anything liberal? It appears here, you are never anything less than argumentative toward right thinking."Huh?

Lunacy from HuffingtonPost: Jesse Berney Says Democrats Should Ignore the GOP in January!.

From the "Post-Racial" Vault: Slate Magazine Asks Whether Michael Steele Is Barack Obama's "Evil Twin".

A Black Progressive Law Professor Responds to News That Michael Steele Will Lead the GOP.

Is Liberal Sexism Against Palin OK? No!.

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance.

Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!.

Oy Vey: Liberals Dominate Media Because They Want to "Change the World," Says WaPo Ombudsman.

CNN and CBS Release Highly Misleading Polls Regarding VP Debate.

Obama Allows Two "Racists" to Campaign for Him: Why?.

Washington Post Proclaims That "Sarah Palin Picks Ferraro as Favorite Vice President." Shocking -- Yes. Truthful -- No..

From the "Duh" Files: Effusive Political Adoration Does Not Lead to Social Change.

So Exactly When Does "Change" Begin, Take 45345234524523452452: Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects.

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program.

The Democrats' Palin Strategy: A Bridge to Nowhere!.

Rush: The New Bush.

And if you truly believe that I never question anything liberal AND that I am "rarely right," then apparently you do not question anything conservative!

PS: The "Blog Post...Old and New" tab in the left panel of the blog contains blog posts. Read them!

Darren Lenard Hutchinson said...

Anonymous said: "Parsing minutia is not a replacement for honest debate."

I agree. But the comment does not describe my analysis.

Anonymous said: "Simply, an avoidance of genuine give and take in an effort to find fine solutions, which might hinder the left in their lust for political plunder."

How did you know I am a agent of leftwing political plunder?

Anonymous said: "Although, it is preferable to the old "shouting down" routine. (i.e. "the view")."

You watch The View???

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