WASHINGTON (RNS) — Immediately after President Joe Biden introduced Judge Ketanji Brown Jackson as his nominee to the U.S. Supreme Court at a White House event on Friday (Feb. 25), the federal appeals court judge stepped up to the podium and appealed to the divine.
“I must begin these very brief remarks by thanking God for delivering me to this point in my professional journey,” she said. “My life has been blessed beyond measure, and I do know that one can only come this far by faith.”
Jackson’s words marked the beginning of what promises to be a historic confirmation process: If approved by the U.S. Senate, Jackson, 51, who currently serves on the D.C. Court of Appeals, would be the first Black woman to serve on the Supreme Court.
“If I’m fortunate enough to be confirmed as the next associate justice of the Supreme Court of the United States, I can only hope that my life and career, my love of this country and the Constitution, and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded, will inspire future generations of Americans,” she said.
Biden noted the landmark nature of Jackson’s nomination during his introduction, making good on a campaign promise to push for a Black woman on the country’s highest court.
“For too long, our government, our courts, haven’t looked like America,” he said. “I believe it’s time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications. And that we inspire all young people to believe that they can one day serve their country at the highest level.”
While outlining Jackson’s professional credentials and personal story — such as her two Harvard degrees and family members in law enforcement — Biden argued that she “strives to be fair, to get it right, to do justice.”
If confirmed, Jackson would also be the first federal public defender on the Supreme Court and would bring the total number of women serving on the bench to four — the most in U.S. history.
Jackson did not mention a specific faith tradition in her remarks, so it was not immediately clear whether she would alter the religious makeup of the Supreme Court, which currently consists primarily of Catholic and Jewish justices (Justice Neil Gorsuch was raised Catholic but attended an Episcopal Church in Colorado).
Lawmakers and liberal religious organizations celebrated Jackson’s nomination.
“I applaud the historic nomination of Judge Ketanji Brown Jackson to the Supreme Court. Georgians want a nominee who is fair, qualified, and has a proven record of protecting Americans’ constitutional rights and freedoms. I look forward to reviewing this nomination,” Georgia Sen. Raphael Warnock, himself a pastor, said in a statement.
Longtime racial justice activist the Rev. Al Sharpton, who runs the National Action Network, tweeted out a statement of support for Jackson, calling her “exceptionally well qualified” and possessing the “experience, character, integrity, and dedication to the Constitution and the rule of law to serve on the nation’s highest Court.”
The National Council of Jewish Women also praised Biden’s choice of Jackson.
“As the only national Jewish organization which actively vets and endorses federal judicial nominees, NCJW follows the guidance of our tradition which affirms the importance of having ethical, unbiased judges like Judge Jackson who will fight for justice for everyone each and every day,” the statement read. “Her keen intellect, integrity, background, and lived experience are what we need on the Court.”
Religion has been a point of interest in recent Supreme Court nomination battles, particularly the debate over Justice Amy Coney Barrett. When she was nominated by former President Donald Trump in 2020, many observers questioned whether her conservative brand of Catholic faith would influence how she approached issues such as abortion.
Although Jackson reportedly has not ruled on a case narrowly focused on abortion, her appointment nonetheless drew attention of groups concerned about the issue. Jeanne Mancini, president of March for Life Education and Defense Fund, an anti-abortion group, said in a statement she expects Jackson to be “a reliable vote for the far left and the Biden administration’s radical abortion agenda.”
Meanwhile, Jamie L. Manson, president of Catholics for Choice, which advocates for abortion rights, praised Jackson as a jurist with “a long and distinguished record of legal work and judicial decisions that protect and advance the constitutional rights of marginalized Americans, including women and pregnant people, immigrants, and people with disabilities.”
Manson also made mention of Jackson’s April 2021 Senate confirmation hearing to serve on the U.S. Court of Appeals. Manson said Jackson expressed “a clear and firm commitment to the principle that true religious liberty involves both freedom of and freedom from religion.”
During that hearing, Missouri Republican Sen. Josh Hawley noted Jackson had served on the board of Montrose Christian School. The Maryland school, which has since been closed, operated under a statement of faith that declared “we should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death” and outlined a belief that marriage exists only between a man and a woman.
In responding to Hawley, who said he agreed with the statements, Jackson distanced herself from the school’s beliefs. She said she did not “necessarily agree with all of the statements,” and was not previously aware of their existence.
She went on to express support for religious liberty, describing it as a “foundational tenet of our entire government.”
‘Alive but Ailing’
“Affirmative action is alive but ailing, the idea of ‘critical mass’ to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive. Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday,” said veteran U.S. Supreme Court reporter Lyle Denniston at SCOTUSblog, after the Court heard arguments in the case of Fisher v. University of Texas at Austin.
Embarrassed for the Court
“Critical mass” is the idea that there need to be enough students of color attending a school to overcome a sense of “racial isolation,” explained Linda Greenhouse at The New York Times. Greenhouse was embarrassed for the court after acquainting herself with its questions, she said. “Of the four justices most intent on curbing or totally eradicating affirmative action — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas — the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas. …It was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game.”
Plaintiff ‘Failed to Meet Threshold’
The plaintiff in the case, Abigail Fisher, “failed to meet the threshold of being in the top 10 percent of her graduating high school class — which would have automatically guaranteed admission to UT,” said Edward Wyckoff Williams at The Root. He went on to argue that “four decades after legalized discrimination was still codified in law, racial disparities persist at nearly every level of American society. From criminal justice to education, employment to housing, minorities in general and African Americans in particular continue to face an uphill battle toward social and economic equity.”
Affirmative Action for Whites
Williams also mentioned a new book, What’s the Matter With White People? in which the author, Joan Walsh, reminds readers that “white Americans enjoyed the benefits of the Great Society social welfare programs, in particular the postwar GI Bill, expansion of public universities, FHA mortgage-lending guarantees and union jobs … amounting to affirmative action government policies for poor and low-income whites — and often, almost explicitly, excluded African Americans and other people of color.”
At The Huffington Post, Steve Nelson accused Fisher of having her cake and wanting to eat it too and he accused the court of appearing “ready to hand her a fork.” Said Nelson: “The young white woman, a recent graduate of Louisiana State University, filed the lawsuit now being considered because, she claims, she was unfairly denied admission to the University of Texas. One might argue whether the distinction between these two institutions is so great that Fisher had standing to bring the case at all. She claims that this allegedly diminished pedigree has done her grievous harm. Whatever. Lots of kids don’t get into the colleges they most desire. Did Fisher, or those who advised her to sue, choose to complain that some other white student of ‘lesser qualification’ won the spot she so dearly coveted? No, it was only the allegedly ‘inferior’ black applicants whom she apparently resents.”
Court’s High Bar Cleared
Noting that “the Supreme Court has [previously] insisted that any affirmative action plan must meet the test of ‘strict scrutiny’ — that is, that the plan must be ‘narrowly tailored’ to serve a ‘compelling interest,'”Greenhouse said “the justices obviously know that the court has concluded that affirmative action in higher education admissions can clear that high bar — as it did nine years ago in Grutter v. Bollinger, the University of Michigan Law School decision.” So, she concluded, “There was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical ‘top 10 percent admissions plan with one that considers each applicant as an individual — with race as ‘only one modest factor among many others.'”
‘Temporary Measure’ to Permanent Entitlement
At Forbes, Bill Frezza wondered how “a set of ‘temporary measures to level the playing field’ become a permanent entitlement advantaging even minorities from wealthy backgrounds over white kids who grew up in poverty?” Frezza advised readers to take the approach that blond-haired, blue-eyed U.S. Senate candidate Elizabeth Warren did when she identified herself as a Native American on a Harvard Law School job application. Said Frezza: “Suppose enough of us chose to adopt the Warren standard? After all, every human being has ancestors that came from Africa, however remote. Who’s to say we don’t identify with them?And therein lies the fastest way to put an end to affirmative action without relying on the courts or the ballot box.”
Clever, isn’t he?
Downside for People of Color
Frezza and Fisher are obviously not alone in their disdain for Affirmative Action. Some however, are uncomfortable about it for entirely different reasons. At CNN, for example, LZ Granderson said, “If I had a nickel each time a white guy e-mails or tweets that I have my job because I’m black, I wouldn’t need the job, because I’d be rich. This is at the heart of a little talked about secret regarding affirmative action: A lot of black professionals don’t like it either. Not because they think the playing field is necessarily leveled, but rather their skills and talents are constantly being slighted by whites who think their jobs were given to them solely because of their race.”
Big Business Backs It
Big business, meanwhile, is on the aside of Affirmative Action, according to Bloomberg Businessweek. “Some of the biggest corporations in America say that having a diverse payroll helps boost sales, and they want the Supreme Court to keep that in mind as it considers this term’s affirmative-action case,” the article said.
What do you think?
Should Affirmative Action become another entry in the history books or is it still necessary for leveling the playing field?
MASS REPEAL: Calls for the dismantling of President Obama’s signature healthcare legislation have gone into overdrive since the Supreme Court ruled the law as constitutional last month. (Jonathan Ernst/Newscom)
The federal government has not taken over health care. The federal government has taken over access to health care. There is a difference.
When I was a student at Morehouse College in the early 1970s, activists launched a campaign to address the shortage of African American doctors in the state of Georgia. They produced bumper stickers that asked “Only 100 Black doctors in Georgia?” with a map of the state’s 139 counties in the background. With many of those 100 doctors concentrated in urban areas such as Atlanta, people voiced clear concern over access to health care for thousands of African Americans in rural, poor and remote areas. Morehouse College President Hugh Gloster responded to this concern by founding the Morehouse School of Medicine, which joined Howard University Medical School, Meharry Medical College and the Charles Drew School of Medicine (similarly founded to address access issues in the Los Angeles area) as the nation’s only predominantly Black medical schools.
Were the government to have taken over health care, the government would be proffering medical diagnoses, prescribing medicine, and performing surgery. This is not the case. What the Supreme Court’s ruling upheld on June 28 was not government-controlled health care, but a federal system that expands access to health care for millions of Americans, mostly poor and many people of color. In a country where national strength finds measure on barometers of military might and economic prosperity, Scripture connects a nation’s well being to its care for the poor. In the fifth chapter of the biblical book bearing his name, Jeremiah challenges his nation, saying:
5:26 For among my people are found wicked men: they lay wait, as he that setteth snares; they set a trap, they catch men.
5:27 As a cage is full of birds, so are their houses full of deceit: therefore they are become great, and waxen rich.
5:28 They are waxen fat, they shine: yea, they overpass the deeds of the wicked: they judge not the cause, the cause of the fatherless, yet they prosper; and the right of the needy do they not judge.
5:29 Shall I not visit for these things? saith the Lord: shall not my soul be avenged on such a nation as this?
And among the judgments God speaks through Ezekiel, health care stands prominently:
34:4 The diseased have ye not strengthened, neither have ye healed that which was sick, neither have ye bound up that which was broken, neither have ye brought again that which was driven away, neither have ye sought that which was lost; but with force and with cruelty have ye ruled them.
Interestingly, the arguments against the healthcare reform upheld by the Supreme Court do focus on the problem of systemic access, and the price to be paid for it — whether the price is monetary in the form of the penalty for failure to carry health insurance or individual liberty in the form of governmental coercion. Yet in both cases, the plight of the poor and needy, the sick and infirm, goes unaddressed. How to make health care accessible for those on the margins of society receives little attention from those who would dismantle “Obamacare.” Promises to repeal the legislation without offering a clear alternative for how we as a nation make health care available and accessible to all persons reduces “the least of these” to political pawns, whose lives represent fodder for a political machine designed to appeal to the self-interests of America’s middle class.
UPHOLDING THE LAW: Supporters of President Obama’s healthcare reform rallied outside the Supreme Court chambers prior to the Court’s historic ruling on June 28. (Jonathan Ernst/Newscom)
Such a move must be resisted by President Obama and supporters of the legislation. The president campaigned for much of 2008 by appealing to that same middle class. He has lost some of their support with his championing of this version of reform, but that is precisely because our electoral system makes it difficult to appeal to a moral high ground as a strategy for garnering support (unless the issues revolve around sexuality and/or abortion). Some who have been disappointed by the president but still support him for reelection need to become more vocal in raising this issue above individual self interest to the moral high ground, much as Jim Wallis and Sojourners put forth the notion that poverty is a moral issue in the 2004 presidential campaign.
The question of access to health care ought matter significantly to people of faith. But it is easy to see how a church whose own theology promises personal prosperity apart from systemic issues of justice can miss the mark of its high calling to care for the poor. Indeed, it is as if a central claim of many messages draws directly from the Rev. Frederick J. Eikerenkoetter, better known as Reverend Ike: “The best thing you can do for the poor is not be one of them.”
Our ministry to the sick must move beyond prayer and visitation, and our work amongst the poor requires more than acts of charity. Justice questions continue to loom large in a nation with rampant inequality in quality of life, minimized access to maximal care, and economic stumbling blocks that tie the quality of health to possession of wealth. The spiritual gift of healing is not restricted to those in a specific economic category. If God’s divine, miraculous intervention to bring healing cannot be tied to social status, why should not a national healthcare philosophy be similarly non-discriminatory?
The Supreme Court ruling on the constitutionality of the Affordable Care Act provides the opportunity for the various agencies: government, hospitals, physicians, pharmaceutical companies, insurance companies, and employers to move with plans for implementation. It is good news for many who currently have little if any access to health care.
While many decry the “intrusion of big government,” an unanswered question for Christians who have opposed healthcare reform is “how has the church mobilized on behalf of the sick and the poor?” In other words, could it be that the intrusion of “big government” in part reflects a gaping hole in our mission to care for the least of these through ministries of mercy, prayer for healing, and advocacy for the oppressed? Are we so busy with “destiny and prosperity” that our attentions have been taken from our responsibilities to fulfill Jesus mission in Luke 4 and Matthew 25?
In a 5-4 vote, the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act today, including the controversial individual mandate that requires all Americans to buy health insurance beginning in 2014. However, the ruling limited the federal government’s power to punish states for not expanding Medicaid coverage, as the ACA required.
“The Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form,” Lyle Denniston, the 81-year-old reporter, wrote on SCOTUS blog today.
The immediate sense is that this is a major victory for President Barack Obama and the signature legislation from his first term in office. “Whatever the politics,” the president said after the ruling, “today’s decision was a victory for people all over this country whose lives will be more secure because of this law and the Supreme Court’s decision to uphold it.”
But the decision also was an indication that the Supreme Court perhaps isn’t as predictably partisan as many believed prior to the announcement. Breaking with the court’s other conservative justices, Chief Justice Roberts announced the judgment that allows the law to go forward with its mission of covering more than 30 million uninsured Americans. Many observers speculate that Roberts’s ruling reflected his attempt to avoid going down in history as an activist chief justice on what might be the most important decision of his tenure.
UrbanFaith spoke to a variety of legal and medical experts about what the implications of today’s decision may be.
BERNARD JAMES: “An extraordinarily important substantive issue about the power of Congress under the Commerce Clause.”
Bernard James, professor of law at Pepperdine University in Malibu, California, along with three other sources UrbanFaith talked to earlier this week, expected the individual mandate to be struck down, but said the ruling has the potential to answer “an extraordinarily important substantive issue about the power of Congress under the Commerce Clause.”
The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution. It gives Congress the power to regulate commerce with foreign nations and among the states.
“Once it’s clear what the Commerce Clause permits and what it requires, not just health care, but all other subjects on the current agenda for this Congress will be more easily pondered and legislated,” said James.
“There were not five votes to uphold [the individual mandate] on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power,” editor Amy Howe wrote on the SCOTUS blog. “Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose,” she wrote in her summary of the ruling.
JAMES A. DAVIDS: “This is like federalism on steroids.”
James A. Davids, former president of the Christian Legal Society and a joint professor at the Robertson School of Government and the School of Law at Regent University in Virginia Beach, Virginia, said that ever since the New Deal was implemented in the 1930s, the Supreme Court has viewed federal power “expansively.” That vision of federal power was “tweaked” under the Renquist court, Davids said, in its rulings on two bills, the Violence Against Women Act of 1994 and the Gun-Free School Zones Act of 1990. As with today’s ruling, the court said then that there may be good reasons to enact these laws, but not under the Commerce Clause. “There were exceptions going into the power of the government under the Renquist court, under federalism issues, and this is like federalism on steroids,” said Davids.
Davids also said the Rehnquist court ruled that it was constitutional for the federal government to withhold highway funding from South Dakota when the state refused to comply with the National Minimum Drinking Age Act. In this case, the Court said current Medicaid funding cannot be revoked, but new funding can be withheld.
“Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding,” Chief Justice Roberts wrote in his opinion. Roberts, who was appointed by President George W. Bush, cast the deciding vote to uphold the ACA.
DR. BEN CARSON:“We got what could be expected” from politicians.
For Dr. Ben Carson, the world-famous neurosurgeon and director of pediatric neurosurgery at Johns Hopkins Children’s Center in Baltimore, Maryland, the outcome of today’s decision doesn’t change much. “The impetus behind the bill was the fact that we had these escalating costs and people who weren’t adequately covered … even though we spend twice as much per capita on healthcare as anybody else in the world,” said Carson.
He supports the concept of health-care reform, but doesn’t think the ACA was done right and compared the effort to hiring pundits to rebuild a bridge instead of hiring structural engineers. “It was done by politicians and special interest groups as opposed to by people who actually know what the problem is and know how to deal with it,” said Carson. “We got what could be expected in that situation.”
Escalating beaurocracy and a lack of comprehensive electronic medical records make the practice of medicine more difficult than it once was, Carson said. In his new book, America the Beautiful: Rediscovering What Made This Nation Great, he includes a chapter on health-care reform. He suggests using “health stamps” to incentivize the uninsured to use clinics rather than emergency rooms for their primary care. This would lead not only to cost savings, but to better care for patients with chronic illnesses, Carson said.
He also advocates Tort reform to rein in the costs of medical malpractice suits. “We’re the country in the world that has the biggest problem with that. Is it because we have the worst doctors? Of course not. It’s because of special interest groups. The Trial Lawyers Association. We will not deal with them. Every time it has come up before Congress, the House has passed it, but the Senate will not vote on it, because there are some filibustering senators who are in the hip pocket of the Trial Lawyers Association,” said Carson.
Finally, Carson said we have to come to grips with the fact that insurers make money by denying people care. “That’s a basic inherent conflict of interest. We have to find a way to deal with that,” he said.
TONY MEGGS: “We’re grateful that congress, both left and right, saw healthcare sharing ministries like ours … as being part of the solution.”
Some Christians, especially the self-employed and small business workers, are participating in medical cost sharing ministries like Medi-Share because they can’t afford the high cost of individual health insurance plans. Today’s ruling won’t have a direct impact on them, said Tony Meggs, the president and CEO of Medi-Share’s parent organization, Christian Care Ministry.
As part of an alliance of three cost sharing organizations, Medi-Share lobbied for and won an exemption from the individual mandate for its members. “We’re grateful that Congress, both left and right, saw healthcare sharing ministries like ours and the other two ministries as being part of the solution,” said Meggs.
His organization’s 19-year history of paying every eligible bill (approaching $700 million to date) and its focus on wellness and preventative care helped convince legislators that cost-sharing ministry members deserved an exemption, he said.
“They understand that they need to bend the cost curve in some way in getting people to make better choices in terms of how they live their lives. From a diet and exercise perspective, those are things that Congress was interested in, and so I think it was a combination of [that and] the fact that we’ve been here for a long time. This is how we help people. It’s credible. We’re not scamming people,” said Meggs.
Medi-Share’s steady growth “accelerated” after the ACA was enacted, Meggs said, and he expects that growth to continue because he says there is about a 40 percent cost difference between an individual health insurance plan and a monthly Medi-Share contribution.
There are differences, however. Medi-Share participants must sign a statement of faith and agree not to abuse drugs or alcohol or engage in extra-marital sex, Meggs said. Medical problems resulting from violations of these agreements are not generally “shared,” nor are mental health problems or some pre-existing conditions. Additionally, insurance companies are contractually obligated to pay for eligible services, but “sharing” medical expenses is voluntary for Medi-Share members. “There’s no guarantee. There’s no contract. Our program is strictly voluntary, but what I can tell you is that over a 19 year history, a 100 percent of every eligible bill that we’ve ever published has been shared,” said Meggs
What about you?
How will today’s ruling impact your family’s health decisions?
Author and law professor Stephen L. Carter (photo by Elena Seibert).
Stephen L. Carter has the Christian Contrarian-Renaissance Man-Black Public Intellectual thing down pat. A Yale law professor, a best-selling author of both nonfiction and suspense-filled novels, a frequent contributor to the nation’s most-esteemed op-ed pages, including everything from The New York Times to Christianity Today; Carter makes it look easy. He also was a classmate of Supreme Court nominee Sonia Sotomayor, which is why we wanted to get his opinion about last week’s judicial hearings and the current state of affairs on the political scene.
Back in 1991, Carter’s book Reflections of an Affirmative Action Baby recast the national discussion on diversity and racial preferences by defending affirmative action’s effectiveness in opening doors for qualified minorities like himself while simultaneously taking it to task for casting doubt over black professionals’ ability to compete with the “best of the best.” His arguments left many critics wondering whether he was a liberal, a conservative, a neoconservative, or perhaps just an “honest liberal.” He defies easy labels.
Carter, a devout Christian, carried this same tough but evenhanded inquiry to the subject of religion in America. His books The Culture of Disbelief (1993) and God’s Name in Vain (2000) helped sharpen the debate about the intersection of faith and politics with ideas and arguments that were at once intellectually forceful and spiritually attuned.
Carter is hard to categorize, not because he enjoys keeping folks guessing but because for him serious debate does not easily translate into the kind of partisan sound bites that pervade talk radio and cable television. In an essay in The Virginia Quarterly Review, Michael Nelson uses Carter’s insights from his book Civility to shed light on the author’s skepticism about today’s brand of politics:
Carter regards politics as having betrayed us, in utterly bipartisan ways. Democrats promise entitlements and Republicans promise tax cuts, “but both parties are really doing the same thing: appealing to our selfish side.” Conservatives exalt property, liberals exalt rights, but “both teach us to worship ourselves.”
Recently, Carter has spent more time wearing his fiction hat. His first novel, 2002’s The Emperor of Ocean Park, shot up the best-seller list and quickly established him as an entertaining cross between John Grisham and Ralph Ellison. His latest work, Jericho’s Fall, finds Carter boldly tackling the “spy thriller” genre. As he began his Jericho’s Fall book tour last week, UrbanFaith talked to him about Sonia Sotomayor, diversity in America, and the question of empathy from the judicial bench.
URBANFAITH: You were friends and classmates with Sonia Sotomayor at Yale Law School back in the late ’70s. Did you suspect then that she could one day be a nominee for the U.S. Supreme Court?
STEPHEN CARTER: When we were law students, Sonia left an immediate impression because she hit the ground running. At a time when many others were quivering in the back of the classroom, she was doing the work, raising her hand, arguing the issues. I remember that her ambition at the time was to be a trial lawyer; by all accounts, she was a very successful one.
Her great strengths were two. First, the determination to get the answers right. By this I mean that she was less interested in persuading others that they were wrong than in weighing their arguments against hers to work out what the answer was. In other words, she always believed there was a best answer.
Second, she possessed then — and possesses now — an enormous human warmth, an ability to draw others to her. Sometimes she and I do not run into each other for years at a time, but, whenever we do, she hugs me and asks at once about my wife Enola, another law school classmate, and my children. I believe that President Obama made a wonderful choice.
How did it make you feel to see a Latina nominated for the highest judicial office in our nation?
I am perfectly happy to see more diversity on the bench. But, in this case, I am particularly happy to see Sonia Sotomayor on the bench. She is, to my way of thinking, a judge’s judge. I teach a couple of her opinions in my courses at Yale Law School. This is not because she is a friend — I have other friends on the bench whose opinions I would never inflict on my students — but because she writes extremely well, always tries to be fair in laying out the arguments, and has a particular skill in clarifying complex issues of federal regulatory law.
Almost immediately after Judge Sotomayor’s nomination was announced, conservative pundits started playing snippets of her old speeches. The most famous clip was from a speech where she suggested that a wise Latina judge would make a better decision than a white male. Those words were of particular concern to the senators who grilled her during last week’s hearings. What are your thoughts about her controversial comment?
The attention paid to Judge Sotomayor’s “wise Latina” quote captures everything that is wrong with the confirmation process. We spend little time studying the nominee’s opinions — hard to make talk radio fodder of that! — and, instead, search for snippets from speeches and articles that we can use as cudgels. This is true whether it is a Democratic or a Republican president doing the nominating. It is both silly and sad that we cannot talk about law, or about a judge’s work, but must instead search for these bits and pieces and make them the story. Alas, that is how America works these days.
President Obama said one of the things he was looking for in a Supreme Court justice was a sense of empathy, of being able to understand the experiences of the less fortunate. As a law expert and an African American, do you agree?
I respectfully disagree with President Obama that “empathy” is an important characteristic in a judge. Had the President said what I think he probably meant — “patience” or “a willingness to listen and learn” — I would have agreed. Judge Sotomayor has both in spades. But “empathy” is an empty standard. For example, a judge who always rules in favor of investment banks might have empathy for Wall Streeters; and, during the civil rights era, there were plenty of Southern apologists who described the working-class whites of the South as the truly oppressed in America.
What are your thoughts about the ruling by Judge Sotomayor regarding the New Haven firefighter case [Ricci v. DeStefano] that was recently overturned by the U.S. Supreme Court? Did you agree or disagree with Judge Sotomayor’s initial ruling?
I have no particular view on Ricci, other than to say that it was a sufficiently tough case and that both sides were well within the mainstream in their opinions. The Supreme Court’s 5-4 split is good evidence of this.
When you hear the phrase “post-racial” in regards to the state of race relations today, what does that mean to you? And how do you think the conversation about race and diversity needs to change in light of Barack Obama becoming president?
I think perhaps it is too early to tell. Let me give you an example of what I mean. In my new novel, Jericho’s Fall, the protagonist, Rebecca DeForde is never given a physical description. There are a few clues as to her race scattered throughout, but I never specify what it may be, and I have refused at all times to say. Yet some of the early reviews solemnly informed readers that Rebecca is white! I would like to believe that in the age of Obama, such things do not matter. Evidently, to many people, they do.
Let me slightly change the subject again. I know that education reform is a special area of interest to you. Are you hopeful that the current administration is moving in a direction that will be beneficial to students and families of all socioeconomic levels?
I am strongly in favor of school vouchers, and I am not afraid to call them that. I believe that the government has an obligation to subsidize poor families to help them gain some of the advantages that better-off families can buy. Studies on whether test scores advance or not are beside the point. There is a demand for vouchers from poor families. It is the well-to-do who oppose them.
I am not clear on the Obama administration’s precise position on school vouchers. The President and the Secretary of Education have said several times that they want to fund whatever works. But this standard, alas, can open the door to endless debate. I would respectfully urge upon the administration that it consider instead a standard something like the following: “We are committed to doing all that we can to provide to poor families the same range of choices available to wealthier families.”
Congratulations on the release of Jericho’s Fall. Over the past decade, you’ve been more prolific as a novelist than as a writer of nonfiction. Is there a reason for that? Have you found fiction to be a more effective way of communicating the ideas that are currently most important to you?
I enjoy writing both fiction and nonfiction. They call upon different parts of my brain and, I suppose, my personality. There are moments when one form of writing is easier than the other. This novel came very easily. The three earlier ones were labors of love, but also of agony.
Writing fiction is fun. I write it to entertain, not to communicate big ideas. But if the readers find ideas in the fiction, I have no complaint.
For more information about Carter’s writings, visit his website at StephenCarterBooks.com.