A Typical Case of American Blind Justice?

Justice is blind. All are equal before the law. Courts often are maligned as the branch of government least responsive to democratic control, and accurately so. At the federal level and in some states, judges are unelected officials. Their appointed nature is supposed to insulate them from fleeting whims of the electorate and better allow them to interpret the law in a fair and unbiased manner.

Since the tide began to turn against racist policies in the U.S., perhaps around the time of the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), there has been increasing acceptance of the view that race is at least a questionable (and usually unacceptable) basis for distinctions in public policy. The best way to end race-based discrimination, the saying goes, is to stop discriminating based upon race.

Affirmative action policies are a major affront to this view. These policies overtly base decisions at least in part on race. There are two primary justifications for affirmative action policies. The first is remedial: the policies favor groups that have been the victims of discriminatory policies in the past, attempting a grand rectification of historical wrongs. The second is rooted in a notion of diversity and can operate independently of the first: the policies favor minority groups, the increased presence of which would increase diversity, a good end that benefits all involved. The Supreme Court upheld a state affirmative action policy justified solely on the diversity notion in 2003. See Grutter v. Bollinger, 539 U.S. 306 (2003).

As an affront to the nondiscrimination view of race-based policies, more nuanced issues in the affirmative action area could fill many posts here. This one focuses the inquiry on the appropriateness of race as a consideration in the selection of federal judges. Even more specifically, it looks at the presence of Native Americans among that group.

According to a late 2009 article in the Judge’s Journal, “an entire culture– America’s first culture, as multifaceted as it was and is– is not represented on the federal bench.” Robert O. Saunooke, Native Americans and the Federal Bench: The Time has Come, Judge’s Journal, Fall 2009, at 25. The author, a member of the Eastern Band of Cherokee Indians and an attorney, states his charge in the form of a question: “How can we as members of [the legal] profession continue to dismiss the importance of a Native American presence within the federal judiciary and still profess to support diversity?” Id. The need for Native American federal judges is especially important, Saunooke argues, because “no other group appears more frequently in the federal system than Native Americans,” and “no other cultural group continues to endure the public ridicule and notoriety that Native Americans face.” Id. at 26. Saunooke’s goal is broad:

The challenge is, as it has been for members of most minority groups, to instill in the public mind a broad understanding of the potential that lies within each individual and a sense of the dignity that is each individual’s right. When those two things are understood, there will be more Native American judges– and more judges from every minority group. That will contribute immensely to the quality of justice for Native Americans and for all people.

Id. at 27. An implicit assumption of Saunooke’s argument appears to be that a judge’s race affects his or her judging, and therefore, race should be a factor in judicial selection.

That conclusion, as stated, is contrary to the nondiscrimination view mentioned above. The implicit assumption, however, finds support in two recent studies that conclude that the difference a judge’s race or gender makes in the outcome of cases is “enormous” and “dramatic,” “at least for cases in which race and gender allegedly play a role in the conduct of the parties.” Edward A. Adams, Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find (linking to the studies).

Most of the rhetoric in this corner of affirmative action discourse is limited to the second justification– diversity and its beneficial effects– and without reference to the first (remedial) justification. This may make the arguments in favor of the use of race in selecting judges more palatable to those inclined to oppose affirmative action policies, especially where the social science actually supports the diversity notion. On the other hand, it may be the case that the racial classification itself undermines the diversity notion insofar as classifying an individual on the basis of his or her race is inherently demeaning. If so, balancing these two conceptions seems difficult.

Within the context of judicial appointments, does the use of race as a factor in the selection process constitute improper discrimination, or is it necessary in the interest of justice? If a judge’s race and gender are outcome determinative, at least in part, what does that mean for the rule of law and our understanding of impartiality and justice?

A Limited Government of the People, by the People, for the People

Sunday night, the U.S. House of Representatives passed H.R. 3590, health care legislation historic in scope, with a 219-212 vote along party lines. (Thirty-four Democrats joined all of the House Republicans in opposing the legislation.) Although not an example of divided government as discussed earlier, see supra here and here (relevant comment), the partisan split on the vote was not the only division this bill illuminated. House Minority Leader John Boehner, R-OH, and other Republicans contended that the bill was unpopular with the American people, while the majority party, in victory, assured all that the measure was what the people wanted and needed. Voters opposed to the legislation said that Speaker Pelosi and the Democrats were unresponsive to the electorate, while those in favor decried Boehner’s false populist demagoguery. The difference between a democracy and a republic is a topic suitable for a future post. This post focuses on how, within the context of division and divided government, people express themselves.

Probably since before written language, people have expressed themselves through art. From cave drawing, stone sculpting, wood carving, and mound building, to mosaic work, painting, and architecture, artistic creations carry and project messages. Sometimes the intended communication is an ode to beauty or a representation of reality. Other times, art is a statement about culture, society, religion, or politics.

Music is an apt artistic vehicle for conveying political messages. Folk music is particularly well-designed for this task. Woody Guthrie and Pete Seeger lit the torch for this medium during the First Great Depression, and Seeger keeps it burning to this day. Along the way, they shared the flame, in varying luminosities, with Bob Dylan, Joan Baez, Richie Havens, Johnny Cash, Bruce Springsteen, Peter Paul & Mary, John Prine, and many many others. Folk singers need not become famous to succeed. Perhaps more than any other secular genre, the message is the most important aspect of the music. Usually accompanied by light acoustic instrumentation, folk music is portable, the information spread through live performances. Unlike modern pop music, folk musicians do not aim for identical performances each time. Fans and critics alike attack Bob Dylan for the unfamiliar, often garbled settings in which he presents well-known numbers. The point is not to create fist-pumping arena rockers, but rather to tell a story. Stories aren’t told exactly the same way twice, and sometimes they change. This is not to say that audience participation isn’t allowed. Sing-alongs, for example, are a great way to engage listeners in direct participation and encourage the spread of a song’s message. It just depends on the song.

Musicians in this area tend to be populists and progressives, but some are conservatives, like songwriter Orrin Hatch, a U.S. Senator and Republican Party member. Another folk musician who walks the political line is Woody’s own son. Arlo Guthrie, known for songs like “Alice’s Restaurant Masacree,” “The Motorcycle Song (The Significance of the Pickle),” and his version of “City of New Orleans,” is a Catholic and, as of President George W. Bush’s first term, a Republican. In 2009, Guthrie told an interviewer:

I became a registered Republican about five or six years ago because to have a successful democracy you have to have at least two parties, and one of them was failing miserably. We had enough good Democrats. We needed a few more good Republicans. We needed a loyal opposition.

In the 2008 presidential election, Guthrie endorsed Ron Paul, a Republican member of the U.S. House of Representatives.

Guthrie’s case is an example of the practice of divided government politics, and it shows that divided government proponents aren’t always conservatives crossing over to vote for Democrats. His position as a folk singer– part of a royal lineage with a solid identity of his own– reminds us of the voice we all have and have a responsibility to use. Divided government doesn’t mean unresponsive government, and a republican form of government doesn’t mean disconnected government. Indeed, many have sacrificed so that “government of the people, by the people, for the people, shall not perish from the earth.”

Thanks to MW for linking me to the Guthrie interview.

The Cost of Consensus

The ability of Americans to sit through and listen to the obvious for several days is awesome to behold, but they consider it a worthwhile price to pay for the testing and creation of consensus.

Odin W. Anderson, The Uneasy Equilibrium: Private and Public Financing of Health Services in the United States, 1875-1965 124 (College & University Press 1968).

There is value in listening and in patience, but we should also remember the importance of efficiency as it pertains to the necessary component of action. See supra here. Consensus probably is required, however, before meaningful action is an option.

The Burden of National Identity

Early Americans identified themselves as citizens of their own states more so than as citizens of the United States. George Washington, James Madison, Thomas Jefferson, James Monroe, Patrick Henry, and George Mason were Virginians before they were Americans. John C. Calhoun surely was a South Carolinian before he was an American. The tide began to shift following the Civil War and the ratification of the Fourteenth Amendment, which declared that, in addition to being citizens of their own states, “All persons born or naturalized in the United States…are citizens of the United States.” State identity is weaker today, and most people consider themselves Americans first, and residents of a particular state or locality second.

The immigration policy debate of the last few years has placed a new spin on the matter of identity. With more than ten million illegal immigrants living in the United States today, some people are trying to figure out who is an American and who is not. To that end, Senators Charles Schumer and Lindsey Graham have proposed “a national biometric identification card all American workers would eventually be required to obtain.” The initial idea is that employers will be able to avoid hiring illegal immigrants if they do not have the proper identification card, which would be equipped with more security features than current social security cards. Identification based on this card is supposed to be easier for employers than the current, optional, online verification system called E-Verify.

Proposals for national ID cards raise the ire of groups like the American Civil Liberties Union and the Cato Institute. Opponents often have a difficult time enunciating reasons for their position, but rationales usually revolve around slippery slope concerns that limited identification requirements will expand to some more broad and egregious policy. An ACLU attorney spent most of his quotation describing the program and calling it “fundamentally a massive invasion of people’s privacy,” while Cato’s policy director alluded to Kafka. It is hard to get at just why a new national ID card is so bad, especially when we already have social security cards, driver’s licenses, and passports. Critics persist, however, discussing “internal enforcement” and alluding to East German checkpoints.

Proponents appear to respond to the critics’ immediate concerns easily, but they too lack some necessary answers. First is the issue of counterfeiting. Quite simply, if something can be made, it can be counterfeited, especially if there is enough at stake. With prospective immigrants literally risking life, limb, and all of their resources to enter and work in the United States, the existence of a valuable market for these cards seems obvious. Second, it is not clear that card-based verification will be easier for employers than the E-Verify system. Will an orchard owner or industrial plant manager be able to interpret accurately the biometric information on a presented card in less time and at less cost than use of E-Verify requires? According to Schumer, card scanners cost $800. Without a scanner, the employer would have to bring the prospective hire to a government office for review of the information.

With both sides having difficulty answering these and other basic questions, resolution seems like a challenge. Allocating burdens, however, may clarify the situation. If it’s right that the government needs to be able to justify its actions before taking them, it’s appropriate for the legislative proponents to bear the burden of justification in this policy debate. In other words, Schumer and Graham should have to demonstrate the necessity and value of their proposal first. They must respond to their critics, but a mere dismissal of opponents’ fears is insufficient. Until they show, with adequate specificity, why a national ID card is necessary, and answer challenges, including those about counterfeiting and alternatives like E-Verify, opponents cannot be expected to present adequate critiques. Legislators who want the new identification program must be prepared to be the first movers. Only then can we expect specificity from their opponents.

An ongoing Wall Street Journal poll currently shows more than fifty-five percent of those voting oppose issuance of a national biometric identification card to all American workers, including eligible immigrants. Feel free to cast your vote in the poll below on the broader question of national IDs and include your thoughts in the comment section.

Atop the Mountain, Where the People Come to Pray

“We don’t get to waltz through the wilderness. The whole point is that wilderness is the place where we are lost and have to be found. It is Lent, time to get tripped up, to get to the wilderness, and to get lost.” Rev. Becca Stevens, Wilderness, sermon, delivered at St. Augustine’s Chapel, Nashville, TN (Feb. 21, 2010). Lent is the season of the Christian calendar that precedes Easter and represents the forty days during which Satan tempted Jesus in the wilderness prior to the beginning of Jesus’ public ministry. Modern observers may fast, give up a particular habit or indulgence, or otherwise cleanse themselves and focus upon the coming of new life and salvation in the risen Christ, celebrated on Easter.

Like Advent, Lent is an anticipatory season, but it also is a journey to a place, the wilderness. “It is right to make our literal and metaphorical journey into the wilderness. The wilderness is the journey, not the destination. It is the place we wander as we make our way home.” Id. In this age of convenience, it is easy to think of going into the wilderness in metaphorical terms. Although new media and technology enable us to learn more about our planet, it is not controversial to say that people are detached from nature, at least in developed countries. Given that reality, metaphor and abstraction may not trump actuality when it comes to entering and experiencing wilderness. Sacred space still can be found within one’s mind and body, to be sure, but it has power and meaning in the physical world of the tangible, tactile, and visceral. There is value, in other words, in taking literally the call of those like Stevens to go into the wilderness.

Wilderness is dynamic. Political theorists caution us against building our societies around “back-to-nature” concepts. The wilderness is dangerous and unpredictable. Relationships and interactions are complex. In the wilderness, there are losers and survivors. Some beings flourish, but all survival depends upon self and mutual reliance.

A particular feature of wilderness worth considering is the mountain. A versatile opportunity in many forms, the mountain has been both a destination and the terrain of journeys. See, e.g., Moses on Mount Sinai, Exodus 19:1-25. The mountain could be a frosty peak, a volcano, or, if your wilderness is a desert or other flat space, a man-made mountain, like a pyramid.

The climb can be exhilarating, the top a place of achievement, rest, power, commencement, perspective, and spiritual transcendence. As with the care needed when drawing lessons from wilderness, so too with mountains, as they are places of danger. The recent death of inspiring skier C.R. Johnson is a reminder of this. Danger and death nevertheless cannot be reasons to fear and resist entrance into wilderness and the approach to the mountain. The potential danger is as much a part of the mountain’s power as is the potential for positive outcomes. They are integral to the meaning of wilderness.

If we ever want to glimpse the glory of being found, we had better be willing to be lost. This season is the wilderness season, to remind all of us, a people with all our trials and tribulations, these times of wandering in the wilderness and being undone by the world, are times when we are on sacred ground. It is when we see the back of God’s head, the bush burning, and the voice of God in the silent wind. We stand in this season with Abraham and Sarah, Isaac and Rebecca, Jacob and Rachel and Leah and all the wandering Arameans to hear our call again and find new paths.

Id. The bulk of Lent takes place during the month of March. Even if you don’t observe Lent, chances are good that you observe March, a tumultuous month known for entering like a lion and concluding like a lamb. It’s a mixed up time that’s not quite winter and not quite spring. It’s as good a time as any to get lost in the wilderness.

Stories of discovery, renewal, being lost, being found, questions answered, questions asked, inconvenience, regression, growth, progression, and anything else that comes from the climbs and tumbles through the wilderness of life are welcome.