Black Torch or Judicial Niche?

Sherrilyn A. Ifill, professor of law at the University of Maryland School of Law and a civil rights lawyer, recently wrote a piece for The Root entitled, “Should Blacks Be Disappointed About Sotomayor?” (definitely worth reading as Professor Ifill's knowledge of law and history of confirmation hearings comes through). My first inclination was “have we not moved beyond the ‘competing minorities’ argument yet? Really, are we still stuck there?” Thankfully, the argument (although some of the comments are not) was more nuanced than the title suggests, though I still find the article a little unsettling. I think that there are larger implications of Judge Sotomayor’s appointment and (hopefully) subsequent confirmation. As always, issues of equality, justice, and progress are paramount. The philosophical balancing of the bench is another. The cases presented before the court will shape the nation for generations to come; a reality that previous generations remember, lived through, and speak of with mixed feelings.

So if I had to answer the question of whether African Americans should be angry over the appointment of a non-African American, my answer would be as follows: “I would prefer the bench to become more diverse, racially and ideologically. To have both forms of diversity in the same body, then I am happy and have faith that my future children will live in a better society.” This may seem like a copout but I assure you it is not; lessons learned have shown me (and the nation) this.

In the article, Professor Ifill argues that current Supreme Court Justice Clarence Thomas does not have “experiences and perspectives [that] are more representative of African Americans.” To be colloquial, duh. This “fact” is not saying much. African Americans have very disparate experiences. Blacks who come from disadvantaged backgrounds—typically—don’t attend Yale Law School and become Supreme Court justices. Privileged blacks experience a different America (and world) and these unique experiences often influence their politics. I am not saying that an African American from either group cannot speak intelligently of the experiences of those from a different background; I am saying that it is simply not a guarantee either way. I think this holds for other groups as well. Thus, pushing for an African American is just as tricky as pushing for someone from a number of many different racial groups.

The issue of talking about an African American Supreme Court Justice is an interesting one. Ifill is right to speak to the issue of cosmetic versus real diversity of the court, the former being satisfied by a court that “looks like America,” rather than one that actually is like America. But we went from Thurgood Marshall to Clarence Thomas when the “black torch” was passed. I am not saying that we do not need additional Black justices to balance out the Black representation on the bench. That is not my point. What I am saying is that right now, given the current and future political and economic climate of the United States, the appointee to the court needed to be someone whose philosophy is true to intent of the constitution but not blinded by it. We must think of the current state of affirmative action (and similar measures), the precarious position of Roe v. Wade, the oscillating support for gay marriage, and the like. To me, the diversity we need is not necessarily racial but ideological so as to counter the conservative stronghold that current populates the bench.

The issue of Obama’s choice was both strategic and appropriate. The fourth woman and first Latina is not to be taken lightly. I believe that Sotomayor’s politics, but more importantly, her judicial philosophy is sound and quite frankly what America needs. Her record serves as evidence of this. Would I have been just as excited if she were Black? Yes. Nevertheless, Obama chose a candidate that he feels trustworthy enough to help, channeling Martin Luther King, Jr. for a minute, bend that moral arc of justice a little bit more this way. I think this appointment is a step in the right direction, one where Judge Sotomayor’s legal and judicial philosophy stand as guiding force for her decisions, her rich life experiences serve as context, and her racial identification has more social rather than legal ramifications. Lani Guinier, Charles Ogletree, and other leading African American legal scholars agree and support President Obama in his nomination; they speak from personal as well as academic positions. They highlight Judge Sotomayor's intelect and knowledge of the law as well as her passion and drive for justice.