Why Should We Care About Diversity on the Supreme Court?

Nearly every President in modern times has had a chance to nominate a Supreme Court Justice. FDR famously (or infamously) attempted to add seats to the Court and pack it with a majority of liberal justices that would permit the Roosevelt administration to push through regulatory legislation to curb abuses in the securities industry, give employees the right to organize unions, spend money to create government jobs, etc. The public outcry was loud, it never happened, but it had its effect. Much of his agenda made it past the Court and it changed the power structure of the nation toward a much more muscular federal role in our lives.

Successors to Roosevelt well understood the importance of Supreme Court appointments. (An old but excellent book - Alan Drury's Advise and Consent - written in the 1950s) described the process in detail.)

It does not surprise me to hear Senators (the ones who are supposed to give the advice and consent) drone on about how important it is for nominees to erase their entire life histories from their memories and to decide cases based on their understanding of the law, precedent and the facts of the cases that come before them. It sounds almost Orwellian.

Sandra Day O'Connor was a top law student (I believe she went to Stanford) who after graduation could not get a job at a white shoe law firm unless she was willing to be a secretary. She turned to public employment to get where she wanted to go. She was a reliable Republican and was nominated by Ronald Reagan, hardly a liberal. When she joined the Court in the early 80s, the left was concerned that she was a lightweight that would rubber stamp the views of more conservative justices. Many conservatives thought it was a master stroke by Reagan - adding diversity without adding real diversity.

We know that justices don't erase their memories. O'Connor is credited with creating an "intermediate" level of scrutiny when reviewing cases of gender based discrimination. In her view, now well established in Supreme Court jurisprudence, the "strict scrutiny" applied to racial discrimination cases was born out of the nation's history of slavery and the promise of the 14th Amendment to the Constitution. But the history of gender discrimination, in her view, did not deserve "strict scrutiny" nor was it the same as a garden variety discrimination case that deserved to be analyzed at the lowest level of scrutiny - essentially a "rational basis" test. Does anyone really think that her role in fashioning that kind of compromise had nothing to do with her personal experience or that at least some of her colleagues appreciated her unique perspective? Does anyone think that the life experiences of the male justices on the Court don't factor into published decisions?

The only extremists left on the Court are the men who believe that attempting to divine the "original intent of the framers" of the Constitution is the only truly legitimate way to decide cases. I'm not the smartest guy in the room in most cases, but it strikes me as a little bit extreme to think that the framers could have predicted the explosion of technology, immigration or the scars left by slavery that they conveniently (for them) chose to leave in place. To me, the truth is that "original intent" is a fig leaf for applying 18th century notions of a civil society to a 21st century problem. Progressives view the Constitution as a living document, and was made so deliberately because the framers were smart enough to know that they could not possibly predict the nation's growth pattern and what the issues would be hundreds of years later. Moderates find ways to look at both theories of interpretation.

During the last election cycle, when people had reservations about changing their allegiance from Hillary Clinton to Barack Obama, many people simply said, "two words; Supreme Court." That might have been an overstatement of the importance of the Court's decisions in the daily lives of average Americans but on certain issues - reproductive freedom, race and gender discrimination and the federal government's power to do something it has never done - passing legislation that attempts to trump the full faith and credit clause of the Constitution to fail to recognize the legitimacy of same sex marriages performed in a state that permits such marriages, it's a big deal. VP Joe Biden calls many of these "kitchen table" issues.

We need more Justices who were brilliant law students, served admirably on lower courts and watched their parents struggle with medical and other bills at their kitchen tables. Nominees' public statements about their judicial philosophy are fair game. So are some of their memberships in professional societies that have unmistakable views on the power of the judiciary, particularly when the nominee was in a leadership role. I believe, though, that it is a not-so-subtle way of discriminating to presume that a nominee is unsuitable because they were bootstrappers who were once poor and will therefore reflexively bend the Constitution to legislate from the bench. If that were the standard, Clarence Thomas should never have been confirmed.

Moderation

It's been a long time since I tried to figure out how my views square with liberal, progressive, conservative or radical (right or left) viewpoints that are all over the Internet or in print. I never liked labels, anyway. They seem at once reductionist and are too often misinterpreted.

One of the reasons that I am so comfortable with Barack Obama's victory is that I think he struggles with the same questions that I try to confront.

As I get a little older and, with any luck, a little wiser, I find myself thinking about so many issues that divide us and wonder why there are not more people who leave room for some disagreement without taking those disagreements personally and finding common ground.

If you read most of my posts, it's fairly clear that I could be categorized as an unrepentant liberal guy who has nothing better to do than force my views down someone else's throat. That has never been my intention. I cannot think of too many issues where there is not a shady spot where everyone could just cool down and listen to another point of view that fell within the range of where I stand. Pick any topic: Iraq, same-sex marriage, global warming, world trade and so many others.

When you read any of my posts and think I'm nuts, I hope you will tell me why. The Internet changes all the rules because you can weigh in on anything in two minutes and feel like you have said your peace. That is the kind of democracy that I love. I learn a lot from those responses, whether they appear here or on my Facebook page, and I have actually changed some of my views as a result.

We don't need celebrities or elected officials to tell us what to think. In the kind of democracy that I think about, ordinary people can take care of that themselves and, at the right time, vote your conscience.

One more bit of back-to-basics

A private club that had taken money from a summer camp to allow a bunch of African-American kids the use of the club's pool and then humiliate that same group is one of the most disgusting displays of racism I have heard of. The perpetrators of what I consider to be an assault should immediately and sincrely apologize for being such ugly racists.

I'm not a vindictive person but the club staff or members that promoted or permitted that kind of humiliation to occur should be exposed to a tailor-made public humiliation that really hits home in their own (obviously little) world. Wealth can sometimes protect people from being held accountable for abusing children in the way they did it, but I am hoping that the thinking people of the club kick them out. After all, who would want to associate themselves with that kind of trash?

I feel very sorry for the parents/caregivers of those kids who will likely have to explain that despite the election of a black President, it has not ended the civil rights movement and all of the work that entails.

The white parents have an even harder job - to tell their kids what happened and that it was wrong and if they had anything to do with it, that they are profoundly sorry. If they are unable to do that and their children end up carrying around that kind of racist bile, they will surely have more limited opportunities in the workplace and elsewhere.

More than 10 years ago, there was a suggestion that my sister's high school should be named for Harriet Tubman, who settled in her retirement in my hometown. She settled there, as I understand it, because the community and surrounding towns were at the forefront of the civil rights movement, including the women's suffrage movement and her decision to live there gave her some comfort that she could live out the rest of her days among people who understood the corrosive effect of racism. Over 100 years later, the town apparently had forgotten its past and summarily dismissed the idea. Those decisionmakers can say whatever they want about their failure to barely entertain the idea.

I said then (I couldn't believe that the local newspaper published my letter to the editor) that such a public outcry over something as seemingly innocuous as naming a school would probably lead lots of students to believe that it was okay to be racists. I'm a pretty practical person and if memory serves, the primary theme of my letter was concern for the students who were as racist as their parents. I predicted that they would be excluded from some of the best schools and workplaces in the country and would be socially ostracized if they decided that they wanted to live in any major metropolitan area. Unless you have dynastic wealth and can wall yourself off from the reality around you, there are few places to hide.

Back to Basics in a Bad Economy

I am not a parent but I have lots of friends and relatives who are. They differ in their approaches to parenting (at least based on my own observations) and their children all have unique gifts, some more traditionally impressive, some not. Some think corporal punishment is okay but they never hit their kids. Some prefer "naughty steps" when their kids act up inappropriately and might, in frustration, give their kids a whack on the behind. Some are more permissive than others. Some are conservative; some are liberal in their politics. Some are wealthy; some struggle every day to pay their bills on time. All are doing the best they can, at least as far as I can tell.

I just walked my sister down the aisle (a stand-in for my deceased stepfather, one of the nicest guys and best parents on the planet) and looked at the crowd at the reception. Few children were there but I still know the kids. The successful ones of my generation share a few traits that I believe are essential.

No matter what ambitions you have for your kids, it usually includes an independent life with a good job and lots of friends and opportunities to learn and grow as people.

This is a long introduction from a person who has participated in the hiring of scores of people. In a tough economy, hiring managers have more choices among candidates. You may disagree with everything I am about to say or dismiss my comments as coming from a guy who has never been a parent, but I think that there a few things any parent can do to make their kids stand-outs wherever they go.

1. Teach them to speak standard English (and Spanish if you can). There is nothing worse than going through an interview with a person who can't verbally communicate. The only thing worse than that is a candidate who thinks I need to hear the F-bomb in an interview. Trust me. It happens more than you think it does.

2. Make sure that they can write cohesively and to adjust their writing style to the particular audience that will read it. You probably have no idea how many lawyers pass a bar exam and can barely put together a cover letter. They will thank you later because their resumes won't be tossed in the shredder. Teach them how to write a proper thank you note and to do so in their own hand with paper and envelopes. It's a lost art that hiring managers love.

3. Teach them proper table manners even if you don't care about them at home. If your kid wants a white-collar job, chances are they will have to attend luncheons, dinner parties and other events. Things like licking your knife, buttering an entire slab of bread and devouring it like it was a pizza, or making negative comments about the menu may be okay at home but their bosses won't send them to meetings on their own, no matter how smart they are. The job won't last long at that point. Also, the admonition to clean one's plate may apply at home but your kid will get noticed for the wrong reason at a client lunch. Getting into the habit of reading modern novels (they should already know the classic ones) gives a potential or new hire something to talk about socially without offending anyone.

4. Unless your son or daughter wants a career in politics, few businesses need to hear your kid's take on trickle down economics or other opinions that have nothing to do with the mission of the company.

5. Television dramas notwithstanding, back-biting, gossipy, wise-asses get into lots of trouble. That doesn't mean they should not confront bad people, but it should be done professionally.

6. Teach your kids how to dress for the job they want. If your kid is being considered for a job as a lawyer, dress like one. If they get the job, they should observe how others dress and avoid making a fashion statement. The longer they stay in the job, the more they can play around with the dress code or, even better, if they get enough promotions, they can set the dress code themselves. I once interviewed a prospective candidate that didn't bother to tie his tie or iron his shirt. He either didn't care about the job or prefers after-hours bar crawls to gainful employment.

7. If they have a Facebook or My Space page, make sure that they understand that hiring managers will find it and read it. I guarantee that the person doing the hiring will consider your kid to be a fool if her social networking makes her sound that way.

To me, those are the big ones. Add some more.

Let's Go Ahead and Let Cheney Speak

Anyone who is already on Facebook (most of the free world, it seems) has seen the Tell Dick Cheney to shut up posts by some liberal organization. I forget which one. It doesn't matter for these purposes.

My initial reaction was to agree. His party lost the oval office. He should be gracious and permit the new administration some time to do what it promised, even if he disagrees with the policy choices. There are plenty of other conservative commentators already on the attack and Dick Cheney has enough Halliburton cash to make it clear that he isn't doing this for money.

I suppose he is exceptionally good at raising money from the party's most faithful adherents (now limited to about 20% of the population) because he tells them what they want to hear. I'm beginning to think that we should encourage him to keep talking. If he wants to remain the face (or at least a prominent face) of the party, the Republican Party will delay the inevitable changes it must make to become a truly national party that can persuade a majority of independents to vote for them. I'm not an expert, but it seems to me that most independents didn't think former Vice-President Cheney did a very good job over the last 8 years. If he remains a constant reminder of the Bush Administration and its policies, Obama gets a second term, appoints two or three more justices to the Supreme Court and maybe even strikes a deal to get decent health care to all Americans. That's not such a bad deal. After all, you can turn the channel when he's on television or radio.

Let's not forget Lynne Cheney. I don't agree with her politics, but she is no dummy. She must be thrilled that she no longer has to dumb down her vocabulary when dining with her husband's ex-boss or politely listen to what amounted to hate speech about same-sex couples. I am disappointed that she couldn't use what little power she had to help men and women like her daughter but that was either her decision or one made for her by a 35 year old West Wing guy who told her to keep her mouth shut. If I'm right, that must have been pretty hard to swallow for a PhD who was already worried about her husband's health. It's not a fair comparison, I realize, but if someone told my mother to shut up about sexual orientation discrimination, she'd have frozen a smile on her face, lowered her voice to a near whisper and politely told whomever it was that he wasn't half the man her son and his partner are and to go f--- himself. That would make for great television drama but I'm a realist.

One Issue Politics

I was reading through some of the more recent posts on this blog and realized that I have drifted away from my initial intention - to promote rational, acid-free, debate on a wide variety of issues. I try my best to follow a number of different issues that I know enough about to express an opinion and avoid ones that I know nothing about. My last posts have focused on same-sex marriage. It is an important litmus test on civil rights, at least as I see it and, if you read newspapers, the issue commands a lot of column space. But I don't want to focus on that issue to the exclusion of others.

I remember political meetings in the early 90s and being shouted down when I suggested that "the movement" had plenty of room to demonstrate that we were not one-dimensional, angry warriors. If we wanted a place at the table, we had to understand that there are other constituent groups who had perfectly legitimate interests and that we ought to study them, take positions on them and join with as many people as possible to make a much longer list of political and social priorities. Lots of lesbian and gay people agreed with me and went off to careers in all sorts of different fields, helping to make policy decisions that affected everyone. Many of them, like me, refused to be the "gay perspective expert" at staff meetings because I didn't think I was qualified to speak for all gay men, even to one corporation. That's a heavy responsibility and, as we know, impossible.

I recently read a piece that I think hits the nail right on the head. The premise was that the LGBT movement has no Martin Luther King. There are certainly a few people who have a much bigger platform to get the message out (Evan Wolfson, Joe Solomnese, Barney Frank, etc.) but no one person has emerged as the kind of transformative leader who can snap his or her fingers and count on an army of true believers to march on Washington at the drop of a hat. (That, by the way, is one way of how I judge the power of a union president.)

The Internet has both enhanced the ability to organize but also hobbles those efforts because too many people of every political stripe seem to believe that bloviating on the Internet is a substitute for putting your feet on the ground or sending a well-written, personal letter to your state and local representatives that wasn't already written for you by a website.

Look at what's happening in Iran. Many young people in Iran seem to have access to technology that helps to chronicle the tragic reaction of the current Iranian regime. But they also put their boots on the ground and took great personal risk in doing so. That kind of bravery gets rarer every day. Without those pictures, few of us would appreciate just how much dissension there is, nor would we know that the 'democracy' Iran says it created in 1979 is far from any Western notion of democracy means. It's hardly easy for the United States to divorce itself from the issue, particularly given our history in that country - including installing a peacock throne for the Shah following a democratic election in the early 1950s that included SAVAK, the Iranian version of the KGB. Iran has lots of oil in the ground but no refinery to use it. Iran imports refined petroleum from its neighbors. The political use of religion in Iran is no surprise. It worked before and took away modern rights that we take for granted.

That's just one issue.

I intend to try harder to be a whole person - not just a gay man - and try to start conversations about issues that are not central to my daily life but are to others. I was on the right track last year. I'll try to get back there in future posts.

It's no secret that in the space of a few short years, states have grappled with what to do about granting marriage rights to lesbian and gay couples. Many have legislation that either offers some rights via a civil union (for these purposes, I'll call those laws "marriage lite" - civil rights that to me are the equivalent of watery beer. Others have attempted to deny any rights whatsoever. Some have legislatively permitted full marriage rights. Others found themselves in court battles that had the same result.

The Defense of Marriage Act - I have to remember that Bill Clinton signed the bill because it seems so against his general core beliefs - attempts an end-run around the full faith and credit guarantees under the Constitution but apparently comforts those states that are unable or unwilling to grant full marriage rights in their own states. Married in Massachusetts and decided to move? Welcome to Georgia but you aren't married there. Got a civil union in California that purports to grant all the state-based rights of a "marriage"? I hope you got great photos of your ceremony but it's not worth the paper it's printed on in scores of states.

The stability and true meaning of the federal constitution's requirement that states respect acts performed in other states is in real peril. If the US Supreme Court can reconcile DOMA with the full faith and credit clause of the constitution and hold that DOMA does not amount to prohibited discrimination, lesbian and gay couples will not be the only people affected.

The real question is what level of scrutiny the Court applies. It is clear that in cases involving racial discrimination, the Court applies "strict" scrutiny which essentially means that the state must show a compelling government interest, typically based on the 14th amendment to the constitution. Challenges to state or federal laws that discriminate on the basis of gender are evaluated under "intermediate" scrutiny, an invention of retired Supreme Court Justice Sandra Day O'Connor. In those cases, the Court generally looks for states to show an "important" government interest in enforcing the law. Most other discrimination cases get the lowest level of scrutiny - a rational basis test where the Court is unlikely to disturb a state's decision so long as it bears some relationship to a legitimate government interest.

If the court were to consider DOMA through the lens of intermediate scrutiny, DOMA should be dead on arrival. The current make-up of the Supreme Court make that possibility remote.

The saddest part of this to me is that the Obama administration is defending DOMA as I write this. President Obama was fairly clear that his religious beliefs lead him to a personal decision that marriage ought to be reserved for opposite sex couples. I don't doubt his sincerity about that belief. Many Americans share the same belief and religion is always front and center as a justification.

The problem, though, is that basing public policy decisions as fundamental as the right to marry the person of one's choice on religious grounds shreds the promise of a government that both respects religious differences but will not favor a set of religious beliefs when crafting public policy. Imagine a law that required all Americans to confess their sins on a regular basis because Catholicism considers it a duty. Even main line Protestants would rightfully bristle at such a requirement. Even a fair number of Catholics would tell the government to mind its own business and leave the requirements of their religion to them.

In an earlier post, I mentioned what most people already know. Barack Obama is a constitutional scholar who taught Constitutional Law at an elite law school. When I finished law school in 1993, it never occurred to me that the current controversy would so rapidly make its way to the US Supreme Court. Perhaps it was the relative youth and focus of lesbian and gay civil rights activists who were dealing with a deadly disease, the almost unbelievable fear of being marginalized if we came out and, except for a few visionaries, thought that the marriage debate was decades away.

I don't think we realized how hard work, honesty about who we are and our current willingness to tell others about our contributions to the success of this country would push these types of issues so much earlier than I would have guessed.

I hope that people who are in favor of DOMA, or are on the fence, or who have a good argument to make on why I should be treated differently on this issue will weigh in. I would like to better understand why this is such a controversy.