The Scales of Justice: Weighing in on Obamas Choice for Supreme Court Justice

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by Lesley R. Chinn

With the retirement announcement of Supreme CourtJustice David Souter, President Barack Obama is expectedto have his choice on the bench in time for the SupremeCourts session that begins the first Monday in October.His selection will be the first high court nomination by aDemocrat in 15 years.

Obama has already said he wants someone who can useempathy in making decisions but most importantly, he islooking for someone who has an understanding of theU.S. Constitution. Souter, 69, will be leaving after nearly20 years in Washington, D.C. He reportedly told the WhiteHouse that he plans to retire next month, when the courtfinishes its work for the summer. President George H.W.Bush nominated Souter when he was a federal appealscourt judge.Early in his career, Souter was labeled a moderate conservative,but he soon went liberal when he joined in aruling that reaffirmed a womans right to an abortion in1992. Additionally, Souter was one of the four dissentersin the 2000 decision in the Bush vs. Gore case that sealedthe presidential election for George W. Bush.

Harold Krent, dean and professor at IIT/Kent College ofLaw, said the balance of the court will not change becauseof Obamas pick since Souter migrated to the liberal fromthe conservative camp. Hell probably pick someonewho is a moderate liberal in the same mold so the votingpatterns on the court will not change, Krent said.Since justices remain on the nine-member court for a lifetimeor until they decide to retire, the makeup of theSupreme Court has always been a political issue. Obamahas considered over half a dozen nominees as his choicefor the Supreme Court.

You want someone who has a keen ear to the kind oflegal issues that pose obstacles to particular groups. Itsimportant in picking someone, the choice has to have thepersonality to rally others who think like Obama does [inorder] to make a consensus on the courts, Krent stated.

Senator Jeff Sessions, an Alabama Republican and a toprankingmember on the Senate Judiciary Committee,which will review Obamas nominee, said good justiceswho uphold the law are needed on the Supreme Court,but reportedly told MSNBC that he didnt think a personwho acknowledges that they have gay tendencies is disqualifiedper se for the job. Sessions later told Fox Newsthat Americans might feel uneasy about having a gay personon the Supreme Court and that, it could be a bigconcern. Sessions took over as the ranking Republicanon the committee this month after Sen. Arlen Specter, whohad been the top Republican on the committee, switchedparties.

In 2006, Sessions was in favor of letting the Voting RightsAct of 1965 lapse and also said Congress should considerit if was needed in some northern cities before voting infavor of extending the measure. The New Republic Magazinereported in 2002 that he described it as a piece ofintrusive legislation. Karl Brinson, president of the WestSide NAACP Branch, said controversies such as the onesSessions has found himself in the middle of lets the publicknow that there are still some individuals with some ofthe same, wild conservative views that have kept thiscountry divisive. Brinson also said that a disproportionateamount of Blacks in the jail system shows theres somethingwrong with the judicial system.

Ironically, history has shown that there have been somestrides in the Supreme Court regarding African-Americansfrom 1954 through 1965before Thurgood Marshallbecame the first Black Supreme Court Justice in 1967 withlandmark cases includingBrown v. Board of Education ofTopeka, (1954) which overturned earlier rulings goingback to Plessy v. Ferguson in 1896, by declaring that statelaws that established separate public schools for black andwhite students denied black children equal educationalopportunities. Moreover, Gideon vs. Wainwright (1963)requires courts to provide public defenders in criminalcases for defendants who are unable to afford their ownattorneys and the Warren Court banned segregation andracial discrimination in public accommodations in Heartof Atlanta Motel, Inc. vs. United States. Additionally, theVoting Rights Act of 1965 ended literacy and poll taxes;and provides protection against voter suppression anddiscrimination. The Act also calls for the intervention ofthe Attorney General when voting rights are in jeopardy.

Hilary Shelton, vice president for advocacy and directorof the NAACPs Washington Bureaus Government Affairssaid, The balance of the Supreme Court makes atremendous difference. It is nine people. Most of the racerelatedcases are decided on a five-four ratio and [the] lasttwo judges- Justice Sam Alito and [John]Roberts-are very extreme right-leaning. Crucial civilrights legislation could very well be derailed by theSupreme Court, Shelton said.

Shelton said just as the Reauthorization of the VotingRights Act was celebrated in 2006, a case was filed shortlythereafter out of Texas that is currently before the U.S.Supreme Court. Section 5 of the act requires jurisdictionsin states that have a track record of racial discriminationto seek federal approval of voting-related changes such aseliminating polling places, changing election times, or redrawingboundaries of electoral districts.

The Voting Rights Act of 1965, as Shelton explained, wasput in place to safeguard against discriminatory actionsand activities in the polling places. Such tactics includingmoving or changing a polling place, changing electiontimes, or redrawing boundaries without notification wereoften utilized as Shelton stated in the African-Americancommunity to prevent them from voting.Because there is such a narrow divide on the SupremeCourt now between those who continue to work to upholdputting [into place] civil rights programs such as theVoting Right Act, the balance of the Supreme Court becomescrucial, he said.

But Krent said someones skin color does not necessarilysuggests what the voting record will be. Pointing to thetwo Black Supreme Court Justices, Marshall, who servedfrom 1967 to 1991,and Clarence Thomas, who has servedsince 1991, he said, They represent different visions ofwhat it means to have civil rights in this country.

Justice Marshall was at the forefront of a movement forformal equality and efforts by the government to respectthe disadvantages that have been heaped on minoritygroups in this country for many years. Justice Thomas hasarticulated a view that will focus on formal equality, butdoesnt go beyond that to recognize different historical positionsof groups and disadvantages [they] have sufferedover the years, Krent said. Based on their backgroundsand experiences, these Justices, although Black, haveviewed issues relating to crime, poverty, and educationdifferently, he added.

Marshall believed that Blacks and Whites and other ethnicitygroups could rise or fall based on their own ability.His faith in the power of racial integration traced back tohis childhood in Baltimore, MD. where he grew up in aBlack activist community that established its own schoolsand which fought for equal rights dating back to the CivilWar.

As the nations first Black Supreme Court Justice, Marshall,who tried many cases including Brown vs. Board ofEducation, promoted affirmative action and other raceconsciouspolicies as a remedy for the damage left behindfrom slavery and discrimination. While legal discriminationhad ended, he stressed the need to continue the strugglesin order to increase opportunities for people who hadbeen oppressed, according to a Juan Williams biographyon Marshall entitled, American Revolutionary.

On the flipside, Thomas believes that laws granting preferential treatment based on raceshould be struck down, eventhough he is African-American, aspointed out on a 60 Minutes Reportentitled, Clarence Thomas: TheJustice Nobody Knows. Although hehas benefited from some of theprograms he currently opposessince joining the Court in 1991,Thomas has taken a conservativeapproach, seeking to uphold theoriginal meaning on the Constitutionand its statutes.

For instance, in Hudson vs.McMillian (1992), a Black prisonerfrom Louisiana named Keith J.Hudson, had been beaten by acorrections security officer JackMcMillan and his co-worker MarvinWoods while the officers supervisorArthur Mezo watched.After the beating, Hudson sufferedfrom a cracked lip, a brokendental plate, loosened teeth, andcuts and bruises. Hudson, whosued the three officers, won by a 7-2 margin where the SupremeCourt ruled that the guards usedexcessive force, which violated theEight Amendment of the U.S.Constitutions ban on cruel andunusual punishment. Justices AntoninScalia and Thomas dissented,with Thomas writing thatthe beating didnt cause sufficientharm to meet constitutional standardsto be classified as, crueland unusual punishment.Thomas received criticism fromhistorians and Supreme Court colleaguesregarding his opinion.

Because so many African-Americansare subject to unfairness inthe criminal justice system, Sheltonsaid Hudsons case shouldhave been a wakeup call that thereneeds to be a Supreme Court justicethat recognizes the needs ofnot only African-Americans butother groups that may suffer fromoppression. And certainlyClarence Thomas has taught usthis lesson, Shelton said.

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