On the Supreme Court, difficult nominations have led to historical injustices

 

File 20180927 48634 1na0w5n.jpg?ixlib=rb 1.1
Supreme Court nominee Brett Kavanaugh at the Senate Judiciary Committee hearing, Sept. 27, 2018. AP/pool image, Michael Reynolds

By Calvin Schermerhorn, Arizona State University

Far from being unusual, the hurried and partisan Supreme Court confirmation process for Brett Kavanaugh mirrors several notable examples of similarly politicized confirmations in U.S. history.

Those conflicts, which ultimately placed justices on the court, yielded some of the most damaging civil rights decisions in our nation’s history.

Unlike any other branch of government, Supreme Court justices do not have to face voters at the polls. They have no term limits. Yet the high court is the final arbiter of constitutional rights and protections.

Controversial appointees who were rammed through hearings, or political careerists nominated for strategic reasons and confirmed despite scant vetting, handed down decisions that expanded slavery and rolled back civil rights.

Bad processes do not by themselves yield bad decisions. There have also been thinly vetted justices who have protected and extended civil rights, but such cases are in a minority.

Of course, all Supreme Court nominations are political because they embody the strategic priorities of the president. And the required Senate confirmation of a nominee may well be a “vapid and hollow charade,” in Justice Elena Kagan’s words, since partisan support matters over merit.

But as history shows, judicious confirmation hearings are vital to vetting a lifetime appointment that can affect citizens’ right to vote, access to courts, or the limits of presidential power.

Portrait of Supreme Court Justice Roger B. Taney by George P.A. Healy. The Collection of the Supreme Court of the United States

Bad process, bad decisions

Roger B. Taney was a partisan warrior who helped President Andrew Jackson kill the Bank of the United States by illegally draining its funds. Congress refused to confirm Taney as treasury secretary and censured Jackson.

So Jackson named Taney to the Supreme Court. The Senate refused to confirm him. The next year, after Jackson got a Democratic Senate, he renominated him, this time as chief justice. Taney was pushed hurriedly through confirmation.

The Taney Court was staunchly pro-slavery, rejecting states’ rights when Northerners asserted them to oppose slavery.

Taney’s most sweeping pro-slavery decision in Dred Scott v. Sandford in 1857 held that African-Americans “had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” The decision ruled that Congress had no power to prohibit slavery in any U.S. territory. Dred Scott is widely considered to be one of the worst decisions ever made by the court.

A critical time

During the Civil War, Abraham Lincoln was able to replace the Taney Court with corporation-friendly Republicans like Samuel F. Miller of Iowa, whom he nominated in 1862. Lincoln’s court strategy was to appoint Republicans who would endorse presidential powers in a war to save the Union.

Like Taney, Miller had owned slaves but freed them. And he was a party loyalist. As Miller’s biographer claims, he “sought results first and then found the arguments to justify them.”

Miller’s appointment came just as Lincoln was contemplating the Emancipation Proclamation. Lincoln could have asked Miller his views on the scope of black freedom, but he never did. He never even met Miller. And with no opposition in Congress, the Senate confirmed Miller in just hours.

Miller’s appointment may have been shrewd politics but it hollowed out the Civil War’s crowning achievement, the abolition of slavery and constitutional protections for African-American citizenship, including equal protection of the laws and the right to vote.

It was Miller’s majority ruling in the 5-4 Slaughterhouse Cases in 1873 that had the effect of limiting civil rights protections for African-Americans under the 14th Amendment, which extended citizenship to African-Americans and forbade states to deny them equal protection of the laws. The ruling in effect gave states sole power over areas of citizenship not explicitly covered in the federal Constitution. That, in turn, ultimately led to the growth of racist Jim Crow laws in states.

Justice Joseph P. Bradley, appointed by Ulysses S. Grant. Supreme Court

President Ulysses Grant’s two nominees were also pushed through hastily and had an oversized impact on civil rights.

Those appointments – conservative pro-business Republican Joseph P. Bradley and political hack Morrison Waite – unwittingly undermined Grant’s own Justice Department’s civil rights enforcement.

In 1870 Grant appointed Bradley specifically to help business interests concerned about recent decisions that they believed harmed them. Bradley faced scant opposition from a majority-Republican Senate in bed with railroad and other corporate interests.

Four years later, Grant picked Waite, a crony of Grant’s Ohio friends, who had zero judicial experience. Called a “national nonentity” by a court historian, Waite’s appointment surprised everyone, including Waite. The Senate confirmed him without debate.

The unintended consequences of these two overtly political nominations became clear in U.S. v. Cruikshank, an 1876 court decision.

In April 1873, up to 150 African-Americans were murdered by whites in a conflict over two competing Louisiana governments. Among those whites was William Cruikshank.

Cruikshank and others who participated in the massacre were charged and convicted in federal court of civil rights violations under the Enforcement Act of 1870. That act made it a federal crime to violate civil rights and was passed with the intention of putting teeth in the 14th Amendment, which guaranteed equal protection of the laws and due process. The case considered by the court was an appeal of those initial convictions.

Justice Waite ruled that the 14th Amendment’s civil rights provisions, including the equal protections of the laws and right to due process, did not apply to the victims of the Colfax Massacre.

Justice Bradley concurred in the ruling, clearing Cruikshank. Indeed, Bradley declared that none of the Colfax Massacre defendants were alleged to have “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.”

Bradley and Waite’s responses constituted willful blindness to a naked act of racial terrorism. And these decisions gutted the 14th Amendment’s civil rights provisions, leading to the swift and violent rise of Jim Crow.

More damage

Bradley went on to rule in 1883 that the Civil Rights Act of 1875, which outlawed racial discrimination in public facilities, was unconstitutional. He did this at a time when blacks were being denied the right to vote, barred from businesses and murdered with impunity. Bradley tutted that with his ruling a black citizen “ceases to be the special favorite of the laws.” And the law ended protection for African-Americans from segregation in schools, theaters and even cemeteries.

It would be 74 years before Congress passed another civil rights act.

Not all justices involved in partisan nominations, or who were poorly vetted, handed down dreadful rulings.

Louis D. Brandeis’ nomination in 1916 led to a bitter partisan brawl infused with anti-Semitism. One witness at his confirmation accused him of “infidelity,” and another characterized Brandeis as “duplicitous”.

Louis Brandeis won a bitter nomination fight to the Supreme Court. Boston Journal, June 2, 1916

Yet Brandeis became one of the nation’s most renowned Supreme Court justices, standing up for free speech in Whitney v. California in 1927 and dissenting in Olmstead v. United States the next year against warrantless wiretapping.

Harold H. Burton was a surprise nomination when Democrat Harry Truman nominated the Republican senator from Ohio in 1945. The Senate dispensed with hearings and confirmed Burton without debate. But Burton defied expectations, shaping the Supreme Court’s landmark Brown v. Board of Education of Topeka (1954) ruling that desegregated schools and overturned the Jim Crow doctrine of “separate but equal.”

Back to the 19th century

More recently, contested nominations have revived the 19th-century practice of ramming through partisans whose decisions undermine civil rights.

The 1991 Clarence Thomas nomination evokes that legacy. With a thin resume, partisan credentials, and his nomination hastily pushed through by George H. W. Bush’s administration, Thomas won a lifetime appointment by a two-vote margin after an acrimonious hearing involving his alleged sexual harrassment.

Justice Thomas is arguably among the most conservative justices. He joined Chief Justice John Roberts in the landmark 5-4 Shelby County v. Holder decision gutting the Voting Rights Act of 1965.

Brett Kavanaugh’s nomination, like that of Morrison Waite, Joseph P. Bradley and Roger B. Taney, has been rushed. A partisan warrior, he has been hastily advanced, with the majority of his papers withheld and sexual assault allegations overtaking his hearings.

As American history has shown, this process comes with profound risks.The Conversation


Republished with permission under license from The Conversation.

Murdered in his home while being black!

Thursday night, September 6th, while some people were contemplating burning their Nike gear because of an ad featuring Colin Kaepernick, a 26 year-old unarmed immigrant, Botham Shem Jean, was shot and killed while being black in his own home by a 30 year-old white female off duty Dallas police officer, Amber Guyger, after supposedly entering an apartment she mistakenly thought was her own.

The same night Jean was killed, Nike aired its first 30th anniversary "Just Do It" ad, narrated by Colin Kaepernick, during the NFL season opener between the Atlanta Falcons and Philadelphia Eagles. 

Colin Kaepernick began his slient and peaceful protest, first by sitting and then by taking a knee during the playing of the national anthem. Kaepernick has clearly stated a number of times that his protest has nothing to do with disrespecting the flag or military, but is simply a stand against the killing of unarmed black men at the hands of mostly white police officers. Jean's killing is the most recent example of what Kaepernick's protest is about. 

Guyger told police she thought she was entering her own apartment not realizing she was on the wrong floor; she thought her home was being burglarized and opened fire, shot him twice in the chest, and killed him. Guyger, off-duty but still in uniform, was returning home from either a 12 or 15-hour shift Thursday night; she said she mistook  Jean's apartment for her own, which was a floor below in the same complex. Weird, given he had a red welcome mat at the door (she didn't) and presumably different stuff in his place, but okay.

Jean was a devout Christian and talented singer and worked as a risk assurance associate at PricewaterhouseCoopers. He earned a bachelor's degree at Harding University in Arkansas, where he had been a beloved worship leader. Jean described himself on LinkedIn as a "young professional, engaged in developing a career built upon integrity, dedication and relationships, leveraging useful technologies to gain an understanding of and add value in a range (of) industries, striving towards leadership in my career, my community and society." A college friend described him as "wildly popular, hugely successful, and an incredible leader…he was a gentleman and a scholar." 

In an affidavit released Monday, Guyger made several shady new claims. She said Jean's door was open; she didn't know it was the wrong apartment until after she shot him; she saw "a large silhouette" – cue myth of the big black dude – as she entered; and Jean "ignored" her "verbal commands" – in, lest we forget, his own apartment. At least two witnesses refute her; they say they heard a woman knocking on the closed door and saying "Let me in,” and Jean was too “meticulous” to ever leave his door ajar. Also Guyger, it turns out, has been here before: In May 2017, Guyger was called to assist another officer searching for a suspect. An affidavit indicates a man identified as Uvaldo Perez got out of a car and became combative with Guyger and another officer. A struggle began and Guyger fired her Taser at Perez, who wrested the weapon away from her. Guyger then drew her gun and shot Perez in the abdomen, the affidavit says. Guyger was not charged in the case.

Dallas police requested an arrest warrant Friday for Guyger after Jean’s death was ruled a homicide; it wasn't issued until Sunday, reportedly because the Texas Rangers took over the case and were still investigating. Guyger, a four-year veteran of the department, was charged with manslaughter, booked into Kaufman County jail that evening and was freed an hour later after posting $300,000 bond, according to jail records. Given the contradictions in Guyger's story, officials say she could face stiffer charges once her case goes to a grand jury.

Allison Jean flew to Dallas from the family’s native St. Lucia after the shooting. Her son will be buried on the Caribbean island Thursday.  “She took my life away, like my very own life,” said Jean's mother, Allison. “She has to face whatever the law says. The very Bible says to render to Caesar that which is Caesar so if Caesar says to pay a penalty for a life, then she has to pay.”

Brandt Jean, brother of Botham Jean, is comforted by his sister, Allisa Charles-Findley, as their mother, Allison, looks on during a news conference.

For now, his family is left to grieve and seek answers. They gathered this weekend for a vigil at Jean's Dallas church, where the congregation honored him with one of his favorite hymns, "My God is Real," and a friend compared him to holy men of the Bible who gave friends spiritual guidance and "evangelized every day." His loss, he said, is "a disservice to humanity." It's also why Kaepernick and so many others continue to speak out in righteous rage, said family attorney Benjamin Crump, who said Jean's death should "astonish most sensible Americans…Black people have been killed by police in some of the most arbitrary ways in America. Blacks have been killed for ‘driving while black’ in their automobiles, ‘walking while black’ in their neighborhoods and now ‘living while black’ in their own apartment."

Critics online echoed him. The harsh clear lesson, said one: "Suit. Tie. Christian. Respectable. At home. Black. Dead." Jean's mother Allison Jean, a former government official of St. Lucia, likewise cited the clear racism behind her son's murder in an interview, calmly arguing a white man would not have met the same grim fate. “Botham loved God. Botham loved you. Botham loved mankind," she said. "God loves us all the same, and this has to stop."

As I heard about this young man's life, I couldn't help but be reminded about my oldest son. My son, who will be 25 tomorrow has been actively involve in church since his youth. Like Jean, he sings in the choir, and  is currently a minister and founder of an organization dedicated to help others. This could have just as easily been either of my two sons. My thoughts and prays go out to the Jean family. Hopefully Jean's tragic death will open the eyes of those burning their Nike gear and help them realize that police killing unarmed people is a real problem that needs to first be acknowledged and then solved. 

Minority job applicants with ‘strong racial identities’ may encounter less pay and lower odds of getting hired

George B. Cunningham, Texas A&M University

Race-based discrimination is common in the hiring process.

For example, racial minorities are less likely than whites to receive a callback when they apply for a job. There are also wide earning gaps, with African-Americans and Latinos earning a fraction of what whites and Asians do.

File 20180910 123119 fejnia.jpg?ixlib=rb 1.1Research has shown African-Americans get fewer job callbacks than whites. astarot/Shutterstock.com\

Yet despite laws that aim to reduce employment discrimination and improve attitudes toward diversity, these patterns have not changed for decades.

When analyzing these problems, researchers and others tend to focus on how the experiences of racial minorities compare with those of whites. Often missing is whether there are differences among individuals of the same racial group in terms of how they experience bias.

That is where my new study, which focuses on perceptions of others’ racial identities, comes in.

Perceived identities

People have more than one identity, such as being a mom, a Muslim, an athlete, a scientist and so on.

Just as we commonly think about the importance of each of our identities to who we are – such as being a dad or very religious – we make the same assessments of other people. That is, we evaluate other people’s identities to understand which ones are most fundamental to who they are.

And it turns out, the conclusions we come to about each other’s “perceived identities” can have a big effect on how we interact with them.

As a researcher who has spent the last 19 years examining diversity and inclusion, I was interested in how perceptions of identity affected a racial minority’s prospects as a job applicant. More specifically, I wanted to know if the perception that an applicant has a strong racial identity affected her ability to get a job and how much she’d get paid.

Presumed identity

Past research has shown that our inferences about others’ personal identities can influence how we interact with them.

In some cases, people might talk about how their identity is important to them, or how it reflects a critical part of who they are as a person. In other cases, we make assessments based on cues. For example, we might think someone strongly identifies as Latino when they are members of a Latino student organization. Or, we might infer a weak identity among people who engage in actions that are seemingly contrary to the interests of their group.

For example, psychologists Cheryl Kaiser and Jennifer Pratt-Hyatt found found that whites interact more positively with racial minorities they believe weakly identify with their race – and more negatively with those with stronger racial identifies. Specifically, whites expressed more desire to be their friends and offer favorable ratings of their personality.

Studies show whites are more likely to become friends with racial minorities they perceive as weakly identifying with their race. MinDof/Shutterstock.com

Presumed identity and work

Drawing on their work, Astin Vick, a former student of mine, and I examined whether African-American women’s and Latinas’ presumed racial identity affect their job ratings.

Using an online data collection platform, we asked 238 white people who indicated that they currently or previously worked in the fitness industry to review the application of someone applying to be a club manager. They were told to review a job description, a hiring directive from the club owner, a summary of each applicant’s relevant background and a picture.

All applicants had the same experience, work history and education. The pictures were used to indicate an applicant’s race. Most importantly, we varied each applicant’s relevant affiliations and community service to suggest whether she had a strong identification to her racial group or a weak one.

For example, membership in the Latino Fitness Instructors Association or volunteering for former President Barack Obama’s campaign would signal a strong identification to an applicant’s Latina or black racial group. Belonging to the neutral-sounding Intercollegiate Athletics Coaches Association or volunteering for Obama’s opponent in the 2012 presidential campaign, Mitt Romney, would signal a weak one.

The participants then filled in a questionnaire to measure their perceptions of the applicant they reviewed, including work attributes such as “untested” or “expert,” hiring recommendation and suggested salary.

Our results showed that most people did in fact use cues from the application file to form views of the applicant’s racial identity, which in turn informed their hiring and salary recommendations. Essentially, as we expected, applicants perceived as identifying strongly with their racial group were less likely to be recommended for a job. And, when they were, received lower suggested salaries – on average US$2,000 less – than those signaling weak associations.

The story does not end there, though, since we also knew each participant’s gender. And we found that men showed a slightly different pattern than the one described above.

Men recommended roughly the same salaries for African-American women and Latinas who identified weakly with their racial groups. But for those with strong perceived identifies, they penalized Latinas far more than African-Americans. That is, they recommended the club pay Latinas with a strong racial identify about $5,000 less than African-Americans.

These small changes can add up over time. Over a 15-year tenure with a company, that difference results in $96,489 difference in inflation-adjusted earnings.

The impact

Our study illustrates several key points.

First, though racial minorities, as a collective, face bias in employment, there is considerable within group variability. An applicant’s specific race matters, as does her or his presumed racial identity.

Second, raters use cues on a resume to infer a job applicant’s racial identity. They then use this information in their decision-making. Aware of this pattern, some job seekers remove race-related activities on their resumes, what Sonia Kang, an associate professor of organizational behavior, refers to as racial whitening.

Finally, research has shown that diversity in the workplace leads to greater organizational performance and employee well-being. As such, employers would be wise to be on the lookout for biases like the one we found that are likely to lead to less diverse workforces and take steps to overcome them when hiring new workers.The Conversation


Republished with permission under license from The Conversation under a Creative Commons license.