The Futility of “Colorblindness” (Part 5): Clarence Thomas & His Troublesome Role Model John Marshall Harlan

I have written my critique of John Marshall Harlan’s dissent in Plessy v Ferguson before. Harlan’s view of “colorblindness” is indifference not racial justice. Thus, it is unfortunate, yet predictable, that Clarence Thomas, an Associate Justice of the United States Supreme Court, would glorify Harlan in an article in the Wall Street Journal.

I will reiterate my view.

Justice Harlan’s Dissent in Plessy v. Ferguson

Justice John Marshall Harlan, in Plessy v. Ferguson, 163 U.S. 537 (1896), stated that Whites believed in White supremacy, but the Constitution prohibited the law from enforcing it and, most significantly, from protecting Blacks from the effects of White supremacy doctrines.

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.

Harlan’s dissent is, at best, racially indifferent to the plight of Blacks, certainly not an opinion to admire in the slightest.

The reason why I had to repeat this argument is that in the Wall Street Journal, Thomas stated that he views the flawed Harlan as a role model. However, Thomas edits out a troublesome sentence in order to try to convince the public to agree with him (emphasis mine).

It is the Plessy dissent of Justice John Marshall Harlan to which Mr. Thomas points for an example of a Justice putting his personal predilections aside to keep faith with the Constitution. Harlan was a Kentucky aristocrat and former slaveowner, although he was also a Unionist who fought for the North during the Civil War. A man of his time, he believed in white superiority, if not supremacy, and wrote in Plessy that the “white race” would continue to be dominant in the United States “in prestige, in achievements, in education, in wealth and in power [. . .] for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

 

“But,” Harlan continued, “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens.”

 

That, for Mr. Thomas, is the “great ‘But,’” where Harlan’s intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law.

The way Thomas explains Harlan’s statement of white supremacy is that Whites will remain dominant as long as they follow the Constitution and the idealized view of “colorblindness” (that all people would be treated fairly regardless of their skin color). This is the view Thomas expresses in the interview with the Wall Street Journal.

But the part of Harlan’s dissent edited out by ellipses (”So, I doubt not, it will continue to be”) changes the meaning of the sentence and directly contradicts Thomas’s statement. In reality, Harlan did not separate his personal prejudice from the opinion. With the edited statement added, Harlan was actually observing that White supremacy would never go away and the Supreme Court would not challenge it (provided the society did not implicate the exact words of the Constitution).

Moreover, ideal “colorblindness” is impossible in the United States where one race (White) is the clear majority and controls all of the power in society.

The views of Mr. Harlan or Mr. Thomas are definitely not opinions to be admired in the slightest.

Ballot Initiative (Colorado): Title Board Approves Title for Initiative That Counters the ACRI Initiative

[Update: on March 5, 2008 after granting a motion for rehearing, the Title Board denied the title set for Initiative 61 on the basis that the measure does not constitute a single subject.]

The Colorado Title Board approved a title for a ballot initiative (Initiative #61) that uses some of the same language of American Civil Rights Institutes’s (ACRI) ballot initiative (Initiative #31). The key difference with Initiative #61 is that it would allow the state to make decisions in the areas of public employment, public education, and public contracting that is consistent with the decisions of the U.S. Supreme Court.

The title of Initiative #61, approved by the Title Board, follows.

Shall there be an amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, and public contracting; preserving the state’s authority to take actions regarding public employment, public education, and public contracting that are consistent with the United States constitution as interpreted by the United States supreme court; and defining “state” to include, without limitation, the state of Colorado, any agency or department of the state, any public institution of higher education, any political subdivision, or any governmental instrumentality of or within the state?

This is an unexpected development. While I do not agree with the inclusion of the phrase “or granting preferential treatment to,” having decisions tied to U.S. Supreme Court decisions is a cautiously* better outcome than ACRI’s vague language.

*I am cautious because the ideological makeup of the Supreme Court could be one that favors the ACRI view.

Regardless, I agree with the move of the proponents of Colorado Initiative #61.

[Note: Regardless of my support of Initiative #61, I still maintain my critique of Colorado's process of amending its Constitution.]

Judicial Nominations: Getchell, Nominee to the Fourth Circuit, Withdraws

According to The Virginian-Pilot, E Duncan Getchell withdrew his name from being considered as a nominee for a seat on the Fourth Circuit Court of Appeals.

Getchell recognized that political reality would prevent his nomination from being confirmed.

‘Recent press reports indicate that despite the support I have received, the Senate Democratic leadership will not allow a hearing to go forward and so, after prayerful consideration, I have determined to withdraw my name from consideration.’

I disagree that the Senate Democrats are to blame. In reality, the finger of accusation must point to the President.

Fed. Govt.: President George Bush Issues 2008 Federal Employees’ Pay Schedule; Federal Judges Receive COLA

President George Bush issued Executive Order 13454, which provides the pay schedule for federal employees for 2008. The recent appropriations bill provided for cost of living adjustments for several classes of federal employees.

One group is the one for federal judiciary (see schedule 7 of Executive Order 13454) (amounts in chart are in dollars).

Judicial position	Annual Salary in 2007	Annual Salary in 2008	% Increase
Chief Justice of the U.S.	212,100	217,400	2.5
Sup. Ct. Associate Justices	203,000	208,100	2.5
Circuit Judges	175,100	179,500	2.5
District Judges	165,200	169,300	2.5
Judges of Int’l Trade Court	165,200	169,300	2.5

 

Also in Executive Order 13454, Members of the U.S. House of Representatives and U.S Senate will receive $169,300 in 2008, an increase from $165,200 in 2007.

Contrary to Chief Justice John Roberts, I feel that the federal judicary is already well compensated (click on the federal judiciary tag in the right column for my previous posts on the federal judiciary pay issue).

U.S. Judiciary: Columnist Opposes CJ John Roberts’ Judicial Pay Raise Proposal

Law professor Scott Baker, in a Los Angeles Times column, disagrees with the need for a pay raise for the federal judiciary, as proposed by Chief Justice John Roberts.

Professor Baker provided three reasons for his opposition:

• no evidence that higher pay produces better judges,
• there is no reason to believe that the highest paid attorneys would be the best judges, and
• there is no marked difference in judicial behavior between judges with a government service background and judges from corporate law firms

Professor Baker’s column makes excellent points, especially now as he notices the economic pressure facing the nation.

In a time of strained budgets, both Democrats and Republicans need to make hard choices on spending priorities. Federal judges earn six figures. Why choose to pay judges more — as opposed to equally deserving, lesser-paid federal employees such as park rangers, members of the military or FBI agents — if it ultimately makes no difference to how well the judges perform their jobs?

I, too, oppose exorbitant pay raises for judges. I feel that if judges make too much more, they will not be able to relate to the lives of the middle class litigants that may appear before them. Go to the federal judiciary tag in the right column for my posts on the subject of the judicial pay raise proposal.

U.S. Judiciary: Chief Justice John Roberts Issues 2007 Year-End Report

John Roberts, Chief Justice of the United States, issued a 2007 year-end report on the judiciary.

Unlike last year’s report, which focused solely on judicial pay, this year’s report is fairly standard.

The Chief Justice emphasized three points in the report. First, the system and process of the United States judiciary serves as a model for the rest of the world.

In addition, the Chief Justice urges the people of the United States to appreciate the quality of the United States Judicial branch of government.

Finally, the Chief Justice establishes goals for 2008:

• improve communications with the Executive and Legislative branches,
• ensure that federal judges maintain the highest standards of integrity, and
• seek salary increases for federal judges [Note: See my posts on this issue in the federal judiciary category in the right column.]

In the appendix to the report, the Chief Justice provides an explanation of the workload of the judiciary. I will focus on the Supreme Court’s workload.

	2005	2006
Filings	8521	8857
In forma pauperis	6846	7132
Paid docket	1671	1723
Cases:
argued	87	78
disposed	82	74
signed opinions	69	67

Judicial Nominations: President, Senate Must Reach Consensus on Potential Nominees

The Washington Post wrote another editorial concerning judicial nominations.

The reasoning of the editorial board of the Post is regardless how a nomination is decided, once a name is submitted, the process should go forward (presumably towards confirming the nominee).

I reject this reasoning. If the Presidential nominee selection process is flawed, yet the President still submits a nominee to the Senate, then the nomination process in the Senate should not start at all.

The people of the United States must always remember that judges have lifetime terms. Thus, the Senate has an obligation to consider carefully every judicial nomination. This includes the decision to refuse to consider Presidential judicial nominees.

The Post’s editorial summarized the circumstances surrounding President Bush’s Fourth Circuit nominees for Virginia and Maryland.

Virginia

Senators John Warner (R) and Jim Webb (D) evaluated nominees and presented President Bush with five people that they would both support for nomination to the Fourth Circuit (for the Virginia seat). President Bush nominated Richmond lawyer E. Duncan Getchell Jr., who was not on their list. This decision did not please the Senators from Virginia. [Note: Mr. Getchell was on the list of Senators John Warner (R) and former Senator George Allen (R). According to the Virginian Pilot, since Allen lost to Webb, Getchell's name was removed from the list.]

The Post’s editorial board wisely stated that the Senate would not give the nominees a confirmation hearing.

Maryland

I wrote about the nomination of Rod Rosenstein in this post. In summary, President Bush nominated Rod Rosenstein, U.S. Attorney for Maryland, for a judicial post on the Fourth Circuit, despite the objections of Maryland’s Senators.

For a smooth judicial nomination process consensus between the President and the Senate must occur before the President submits a nominee to the Senate.

Moreover, I do not consider it a priority to fill the five vacancies. Ten of fifteen seats (66%) are filled, balanced between Democratic and Republican appointees.

There is no need to upset the balance, especially since President Bush is entering his final year in office.

U.S. Judiciary: House Passes Consolidated Appropriations Bill; Bill Includes 2008 COLA for Judges

[Update 12/19/07: The Senate has also approved H.R. 2764. Click here for the roll call vote.]

The U.S. House of Representatives passed its consolidated appropriations bill (H.R. 2764). Included in the measure is a cost of living adjustment for Justices and Judges in 2008.

SEC. 305. Pursuant to section 140 of Public Law 97-92, and from funds appropriated in this Act, Justices and judges of the United States are authorized during fiscal
year 2008, to receive a salary adjustment in accordance with 28 U.S.C. 461.

There is no provision for a judicial base pay increase (there is no language from H.R.3753 or S.1638). [Note: See my previous post for more information on these bills.]

U.S. Judiciary: Congress Must Maintain Its Power Over Judicial Pay Increases

 

I disagree with the editorial of The Washington Post concerning federal judicial pay. The bill being considered in the House of Representatives, in particular, contains an unjustified squandering of Congressional power over the federal treasury.

I feel the Congress must jealously guard its power of the purse (U.S. Constitution, Article I, section 8). There are two bills being considered in the Congress: one in the House or Representatives (H.R. 3753) and the other in the Senate (S.1638). Both bills propose a substantial increase in judicial pay.

However, H.R. 3753, section 4, proposes to repeal the law requiring a specific authorization from Congress to increase judicial pay (Public Law 97-92, section 140). [Note: For more information on P.L. 97-92 and other laws regarding judicial pay, see a Congressional Research Service report on the issue.]

Federal judges must not compare their salaries with highly paid corporate lawyers. The fact is relatively few lawyers earn that income. The Empirical Legal Studies blog explains this point for the Juris Doctor class of 2006.

The sample includes–in order of size–private practice (55.8%), business (14.2%), government (10.6%), judicial clerks (9.6%), public interest (5.4%), and other (2.8%). Half of the graduates make less than the $62,000 per year median–but remarkably, there is no clustering there. Over a quarter (27.5%) make between $40k-$55k per year, and another quarter (27.8%) have an annual salary of $100K plus.

 

 

If the chart were a flipbook of the last twenty years, the first mode would be relatively stationary, barely tracking inflation, while the second mode would be moving quickly to the right–i.e., the salary wars. In fact, because of the recent jump to $160K in the major markets, the second mode has already moved even more to the right.

Moreover, highly paid corporate lawyers must be on call 24 hours a day to attend to the needs of their clients. Judges have the power to set their own schedule. Furthermore, as I wrote in a previous post,

Judge Richard Posner of the Seventh Circuit Court of Appeals argued that a salary increase for judges is not necessary as other perquisites are not included in the base salary (the value of the federal pension, health insurance benefits, ability to earn outside income).

Given the distribution of salaries provided by the Empirical Legal Studies blog, contrary to the argument of Chief Justice John Roberts, many good judges can come from lawyers who are not paid extraordinarily large salaries.

While both bills being considered in Congress are unacceptably expensive, the House bill unjustifiably cedes its power over the spending of federal taxpayer-provided funds.

Fed. Judiciary: Leslie Southwick Receives Seat on Fifth Circuit Court

The New York Times (link) reported that Leslie Southwick’s nomination to the Fifth Circuit Court of Appeals was confirmed by the Senate (59-38).

Representative Barbara Lee (link) issued a press release (link) criticizing Southwick’s confirmation.