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August 19, 2017

Public outrage over the death of 10 year-old Gavin Cato, hit by a Hasidic man, erupted in Crown Heights, Brooklyn, NY in 1991.

Silence of the Lambs?

POSTED: June 28, 2010, 12:00 am

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Today the United States Senate Judiciary Committee will begin formal confirmation hearings on the nomination of Elena Kagan, Solicitor General, to the Supreme Court. It is the second nomination of President Barack Obama to the high Court, and the second consecutive woman nominee. After weeks of political posturing on the Kagan nomination, the real partisan jostling begins as the nation’s first Black President gets another opportunity to stamp his imprint on the nation’s highest court.

We begin by expressing our disappointment over the President’s failure to identify and nominate a Black American to the Court, particularly a Black woman. In the history of the Court, there have only been two Black justices, the late Justice Thurgood Marshall and current Justice Clarence Thomas. Marshall, a civil rights legend, was a champion for the rights of Black Americans and the nation’s poor and disadvantaged. Thomas, on the other hand, has been a conservative apologist and has been consistent in his espousal of far right views that are inconsistent with the advancement of his own community. What has been missing is the voice of Black women. The United States Supreme Court will not be a mature democratic institution until its membership reflects the broadest cross-section of our nation’s citizenry. President Obama had an opportunity to be daring in his appointment to replace retiring Justice John Paul Stevens but he opted for what he believes is the safe middle ground. His decision leaves us exasperated and dismayed that Blacks appear to be consigned to a quota of one on the Supreme Court.

We fully understand and appreciate the complexity of federal court nominations in this era of highly partisan politics on Capitol Hill. Conventional wisdom suggests the President was correct in picking a political moderate who is without a judicial record on which Republicans on the Judiciary Committee can feast upon during the hearing process. Since Elena Kagan has not served on the bench, there is not a record of judicial decisions that reveal her ideological leanings. What is coming under scrutiny by progressive civil rights groups, academics and activists, and rightly so, is Kagan’s record in the Clinton White House when she was in the counsel’s office and served as deputy domestic policy director. Her tenure as dean of Harvard Law School and the fact that no Black or Latino tenure-track faculty members were hired during her six years at the helm of the school.

“The United States Supreme Court will not be a mature democratic institution until its membership reflects the broadest cross-section of our nation’s citizenry”

What is disturbing is that the civil rights organizations that have traditionally been decisive in their evaluations of Supreme Court nominees have either gone mute or expressed confusion over whether Elena Kagan is fit to serve. The NAACP and the Leadership Conference on Civil Rights are the only groups that have taken a definitive stand on the Kagan nomination. Some of the ambivalence is obviously due to the trepidation many Blacks and Latinos still have over criticizing any decisions of President Obama. The fear is that any criticism or opposition to the President will be used by his detractors who many of Mr. Obama’s supporters believe simply reject him due to his race. We can empathize with their dilemma. It is a tough political environment and Republicans on the Hill seem intent on stirring the nation’s racial pot to a boil. Despite this obvious quandary, we believe nominations to the Supreme Court requires the highest of scrutiny and that it is in the best interest of the larger community for nominees to be assessed independent of the President who offers the nomination. Sometimes it is worth the fight, even if it means a potential loss. We can’t imagine that Blacks would have experienced the progress we have if certain fights were not engaged. These are lifetime appointments and rather sit on the sidelines over a fear of potentially offending the President we expect groups that purportedly represent our interests to take a stand, one way or the other.

This will likely not be the last appointment President Obama will make to the Supreme Court. If patterns persist, we suspect that his next choice will be an Asian American. Certainly, the Asian American community deserves to be reflected in the composition of the Court. We would be saddened though if this President left office and did not nominate another African American to the Supreme Court. Diversity on the high Court should include Black women as well as a broader judicial farm team than Harvard and Yale.

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