Judicial Nominations: Confirmation to Lifetime Appointments Should Not Be Guaranteed

[Update: 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).]

The fact that a nominee is selected for a position as a judge does not guarantee confirmation to a judicial post. The Post’s editorial board assumes that if a President nominates someone to a judicial post, Congress should confirm that nominee to a judicial post with lifetime tenure. Thus, I am in direct disagreement with the position of Washington Post’s editorial board.

However, I would agree generally with the Post editorial position with Executive Branch political appointees, because the term of the political appointee ends with the President that selected the appointee.

Judge Leslie Southwick

Judge Southwick holds a position on the Missippippi Court of Appeals. President George Bush nominated Judge Southwick to fill a position as a judge on the federal Fifth Circuit Court of Appeals. He has made some controversial decisions, according to the Post editorial and in an opposing opinion column by Nan Aron. The act of making decisions in controversial areas is central to the job of being a judge. However, not every judge has the temperament to sit on a federal Court of Appeals, where judges have discretion to shape the interpretation of the law.

It seems that Judge Southwick takes a narrow view on interpretation. There are cases, as cited in the Post editorial and Aron’s column, where this type of decisionmaking can cause unjust results. There is reason to conclude that Judge Southwick will continue this approach on the Fifth Circuit.

Regardless of these doubts, the Post editorial states that Judge Southwick should be confirmed.

For that reason [referring to the fact that there is only 1 Black judge on the Fifth Circuit, where the population of Blacks in the Fifth Circuit is between 30-40%], and because of his relatively pinched approach to judging, Judge Southwick wouldn’t have been our first choice for this vacancy. Nor do we like the results in the custody and racial slur cases. But we cannot find fault with Judge Southwick’s narrow but ultimately legitimate interpretation of the law in those cases, and we do not find in his record the anti-gay, anti-worker caricature his opponents have drawn. Sen. Dianne Feinstein (California), the lone Democrat on the Senate Judiciary Committee to vote in favor of his confirmation, got it right when she concluded that if senators were to examine Judge Southwick’s entire career, including his stint as a judge advocate in Iraq, they would find a ‘qualified, circumspect person.’

The Post had similar opinions for the nominations of Chief Justice John Roberts and Associate Justice Samuel Alito.

Nomination of John Roberts

For nominee John Roberts, the Post’s editorial board explained:

[…]While he almost certainly won’t surprise America with generally liberal rulings, he appears almost as unlikely to will- fully use the law to advance his conservative politics.

For this reason, broad opposition by Democrats to Judge Roberts would send the message that there is no conservative capable of winning their support. While every senator must vote his or her conscience on the nomination, the danger of such a message is considerable. In the short term, Mr. Bush could conclude there is nothing to be gained from considering the concerns of the opposition party in choosing his next nominee. In the longer term, Republicans might feel scant cause to back the next high-quality Democratic nominee, as they largely did with Justices Ruth Bader Ginsburg and Stephen Breyer.

If presidents cannot predictably garner confirmation for nominees with unblemished careers in private practice and government service, they will gravitate instead to nominees of lower quality who might excite their bases. Mr. Bush deserves credit for making a nomination that, on the merits, warrants support from across the political spectrum. Having done their duty by asking Judge Roberts tough questions, Democrats should not respond by withholding that support.

Nomination of Samuel Alito

For nominee Samuel Alito, the Post’s editorial board stated:

Humility is called for when predicting how a Supreme Court nominee will vote on key issues, or even what those issues will be, given how people and issues evolve. But it’s fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That’s not all bad. The Supreme Court sports a great range of ideological diversity but less disagreement about the scope of proper judicial power. The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically.

Supreme Court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the determinative factor. To go down that road is to believe that there exists a Democratic law and a Republican law — which is repugnant to the ideal of the rule of law. However one reasonably defines the “mainstream” of contemporary jurisprudence, Judge Alito’s work lies within it. While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.

The citizenry has seen the results of the confirmation of Chief Justice John Roberts and Associate Justice Samuel Alito (for example, see my posts (under the Supreme Court category on the right sidebar) on the Ledbetter case as well as the Seattle School District case).

Judicial positions are for a lifetime, thus the Senate should conduct exacting scrutiny of each nominee. The Senate should exercise its power to reject nominations (even stalling nominations), if necessary.

The President and Senate, to ensure a smooth judicial nomination process, should agree to acceptable nominees before nominations are submitted for the Senate’s consideration.


Miscellaneous: Installation of a New Pair of Tires

Until recently, I never really gave much thought to where new pairs of tires were placed on my car. As I have a front wheel car, one would think that the new pair should go on the front axle. This thought, though, is incorrect and hazardous.

Placing a new pair of tires on the front in a front wheel drive car leaves the driver at risk of going into oversteer.

I did not realize the serious nature of the issue until I did some tire research on the Internet after I had bought two new tires for the front. In that search, I happened upon the Michelin Tire Corporation website. There is a video there that clearly demonstrates the hazard of placing a new pair of tires on the front axle and placing the older tires on the rear. Have a look at the video here.

After viewing the video, I returned to the store and bought two new tires for the rear (as I did not want to deal with this issue again when the tires had to be rotated). (Note: I know the cost of the tires took a bite out of the wallet, but I do not wish to be an oversteer situation. It seems like it would be scary.)

I thank the Michelin Corporation for publishing this video. It is truly a public service.

Seattle School District Case: Justice Stevens’s Dissent

Associate Justice John Paul Stevens issued a succinct and well-targeted dissent against the Supreme Court’s majority opinion in Parents Involved in Community Schools v. Seattle School District No. 1.

Justice Stevens essentially noticed that Chief Justice John Roberts was removing the context of the U.S. practice of segregation in education, which was truly practiced against Black students.

There is a cruel irony in The Chief Justice‘s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

Chief Justice Roberts wrote his opinion as if any student would be subject to second-class treatment. In the history of the United States, the treatment of those considered White as second-class citizens has never occurred.

Colorblindness would have become the governing principle were it not for Justice Anthony Kennedy’s equivocal opinion realizing the existence of racial discrimination and the impracticality of colorblindness.

Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.

The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U. S. 537, 559 (1896). The Court’s decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.

Nevertheless, Justice Kennedy makes it difficult for the government to address race because classifying people by race is wrong.

In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306 (2003); id., at 387-388 (Kennedy, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.

Justice Kennedy’s analysis is insufficient because Whites are not only the majority racial group in both Seattle, WA and Louisville KY, but also a majority of citizens in the United States. So it is extremely unlikely that Whites will be detrimentally affected by racial classifications administered by the White majority [Note: click here to see census charts (at the end of the post).]

I am glad that Associate Justices Stevens, Breyer, Souter, and Ginsburg offered spirited dissents to the majority and plurality opinion.

“Colorblindness”: An Impossibility in the United States

Despite the reality that the United States is a White country, it is popular to hear the term “colorblindness.” Colorblindness is the belief that if one ignores racial differences, everything will be well. This is true for the majority population, but it is dangerous for anyone who is not White to believe in “colorblindness.”

A beautiful diary by a writer at Daily Kos explains this situation:

We black folk speak to our families and friends about racist attitudes we encounter daily but we never address it at work unless it cannot be avoided. Most of the time the people who direct it at us always pull the ‘race card’. So we go along each day learning to mask our feelings with smiles. We have learned to live with it because for the majority of us, we do not have a choice.

Several incidents (occurring in the past and recently) demonstrate that “colorblindness” did not, does not, and cannot ever exist in the United States.

Belief in the Inferiority of Black People

The majority population’s ridiculous notion of the inferiority of people belonging to the Black race negates even the idea of “colorblindness.”

Jim Crow Museum of Racist Memorabilia (sponsored by Ferris State University)

See the Jim Crow Museum of Racist Memorabilia for multiple examples of the deeply held belief of Black inferiority.

College Students and Blackface

Tim Wise has written an article on the use of blackface by college students. The practice of minstrelsy is being reincarnated in these “ghetto parties.”

Ralph R. Papitto

Mr. Papitto, a former chairman of the board of trustees of Roger Williams University, admitted to using the vile slur (the “N-word”) for Black persons during the trustees’ May meeting. His use of the vile slur occurred when the trustees were discussing how to add Black candidates to the board of trustees (presently all-White with 14 men and 2 women). Interestingly, Mr. Papitto said it was the first time he used the vile slur against Black people. Mr. Papitto, 80 years old, said he heard the vile term in the media.

He said he had never used the term before.

‘The first time I heard it was on television and then rap music or something,’ Papitto told WPRO.

A Washington Post editorial found this claim to be unbelievable.

Mr. Papitto said that one of the most vulgar and hurtful words in the English language “kind of slipped out.” He also said, “The first time I heard it was on television and then rap music or something,” conjuring an unlikely image of Mr. Papitto, who is 80, kicking back to a little Snoop Dogg or Busta Rhymes.

District of Columbia

In the District of Columbia, Mayor Adrian Fenty has stated upon selecting non-Black people for powerful positions in the District of Columbia government that he looked for the best people, regardless of race. But the use of “colorblindness” resulted in few Black people being selected for the top positions in a jurisdiction with a 60% Black population.

Police Chief & Fire Chief

In announcing Rubin’s nomination, Fenty addressed a potentially thorny issue. He is naming a white man to replace a black chief in a majority-black city. Fenty drew some criticism when he recently named Acting Police Chief Cathy L. Lanier, also white, to replace a black chief.

‘We interviewed people from all different nationalities, backgrounds and regions,” Fenty said. “We believe these are the best candidates. If you look at our entire Cabinet, you’ll see we are committed to diversity.’

Fenty’s Cabinet At-Large

Since taking office six months ago, Fenty (D) has replaced African Americans with non-black people in four of the city’s highest-profile jobs: city administrator, police chief, fire chief and schools chief. Among those who hold arguably the 10 most influential positions, five are white, three are of Asian descent and one is Latino. Only one — Neil O. Albert, the deputy mayor for planning and economic development — is black.


In dozens of interviews, residents, particularly African Americans, said they are concerned that Fenty’s choices have created a Cabinet that does not reflect the city it governs. They also said he has made many of his appointments in virtual isolation, consulting few city leaders or residents.

‘How can there be a scarcity of blacks for positions in the city with the most qualified black people in the world?’ … ‘If you can’t find qualified black people in Washington, D.C. . . . it makes me wonder: How hard did he really search?’

However, race cannot be completely avoided as an issue in DC, as Washington Post columnist Colbert King explained:

‘Not only has [Mayor Adrian] Fenty shopped west of the river for his appointees,’ the column observed, ‘but he’s also shown an affinity for white ones, especially in the public-safety realm.’…

Is this focus on race a holdover from the Marion Barry era? No. It’s been part of the District for more than a century.

Read ‘The Senator and the Socialite,’ Lawrence Otis Graham’s new book about former slave Blanche Kelso Bruce, the first black man to serve a full term in the U.S. Senate.