Social “Firsts” and the Supreme Court

A few days ago, Stephen Breyer announced his retirement from the Supreme Court of the United States at the end of the current term.  Because Joe Biden pledged to nominate a black woman to the nation’s highest court if he became president, he now has an opportunity to make good on that pledge.  Predictably, we began to hear and see a lot of high-minded (and hypocritical) commentary about how Biden should be choosing the “most-qualified” justice–regardless of their skin color.  Our attention span as a country is so short, we’ve already forgotten that Trump’s rise to the presidency was powered at least in part by publicizing a Federalist Society-authored list of high court nominees he would choose from if the opportunity presented itself.  We’ve already forgotten that Ronald Reagan promised to name a woman to the Supreme Court.

But the history of using the Supreme Court to accomplish social firsts stretches back much further than we might suppose from current commentary.  This thread by David Frum takes us all the way back to 1887, when President Grover Cleveland appointed Lucius Quintus Lamar to the high court in a bid to gain the support of conservative white southern Democrats for re-election.  Read Frum’s thread in full to get a complete sense of how unrepentant a Confederate Mr. Lamar was.  This dubious social first—the appointment of a traitor to the Union to nation’s highest court–would prove very important for a reason not fully touched on at all in Mr. Frum’s thread.  1887 marked the year the US federal government fully abandoned Reconstruction–and the nation’s black citizens to decades of voter disenfranchisement, terrorism, property theft, murder, and Jim Crow laws.

No discussion of the Supreme Court and social firsts would be complete without mentioning Maryland’s own Thurgood Marshall.  He earned his undergraduate and law degrees from 2 HBCUs (graduating 1st in his class from Howard Law because the University of Maryland School of Law was still segregated).  Out of 32 cases he argued before the Supreme Court, Marshall won 29, losing just 3.  He served as a federal appeals court judge for the second circuit for a number of years prior to becoming the nation’s first black solicitor general.  Some months of his tenure as an appeals court judge were served as a recess appointment due to certain southern senators holding up his official appointment, including the same segregationist James Eastland that Joe Biden recalled a civil relationship with.  He would win 14 cases on behalf of the government in that role, losing just 5.  Among his peers both at the time and since, there may not be a more successful justice at winning arguments before the Supreme Court prior to becoming a member of it.

Discussing the legal and rhetorical brilliance of Thurgood Marshall requires discussion of his successor.  Few nominations to the high court are a better demonstration of the hypocrisy of many of today’s conservatives regarding “qualifications” (including those who oppose Trump) than the absence of such concerns being raised when Clarence Thomas was nominated to the Supreme Court.  In contrast to the years served as an appellate court judge and solicitor general by Marshall, Thomas was an appellate judge for the DC circuit for just 16 months.  Thomas graduated in the middle of his law school class at Yale in contrast to Marshall’s 1st in class at Howard.  The White House and Senate Republicans apparently pressured the American Bar Association (ABA) to give Thomas a qualified rating even while attempting to discredit the ABA as partisan–and this is before Anita Hill’s interview with the FBI was leaked to the press and led to the re-opening of Thomas’ confirmation hearings.  The same GOP that loves to quote that one line from that one speech of Dr. Martin Luther King, Jr. could not have cared less about “the content of [Thomas’] character”.  They cared that he was both conservative and black.  The way the Senate treated Anita Hill during those re-opened confirmation hearings would in retrospect be a preview of the treatment awaiting future black women appointees to federal roles.

How Thomas fared during his confirmation hearings almost certainly animated the treatment of Lani Guinier after her nomination to become assistant attorney general for civil rights by Republicans.  Her treatment by them, conservative media, and by the White House who nominated her was utterly shameful.  Conservatives lied about her positions.  The same Joe Biden who contributed to the poor treatment that Anita Hill received before the Senate Judiciary Committee he chaired 2 years earlier, reported “grew lukewarm about Guinier”.  President Clinton would ultimately withdraw the nomination in the face of lies and distortions about her writings.  His administration had apparently instructed her not to make any public statements about until after he’d already decided to withdraw her nomination, enabling her opponents to smear her in the press and her “allies” to get cold feet about supporting her.  Particularly now as a wave of anti-CRT legislation, book bans, and attacks on affirmative action gain traction around the country (especially in light of Guinier’s recent death), it is important to remember that Guinier only got to make her case to the public in one interview with Ted Koppel–and the public received her views well.  She never got the Senate hearing that even Robert Bork got for his extreme views because Bill Clinton–her friend from Yale Law School–pulled her nomination instead.

Not even two weeks have passed since the annual hypocrisy-fest that is MLK Day, and a significant majority of Americans surveyed seem to have decided once again that black women should wait for what should be theirs.

The attacks on the first black woman Supreme Court nominee will be fierce (if Biden follows through on his commitment).

When it comes to the Supreme Court and credentialism however, perhaps the best example of the double standard that seems to exist for women generally is the brief nomination of Harriet Miers.  Conservatives in particular dragged this woman for her lack of elite education (she earned degrees in mathematics and law at Southern Methodist University).  Only in looking back did I learn that Harry Reid (Senate minority leader at the time) actually recommended Miers as the successor to O’Connor, and that other members of the Senate Judiciary Committee hoped to see nominees from outside the federal appellate court system.  Perhaps because Reid earned his law degree in George Washington University’s part-time program, he didn’t put as much stock in an Ivy League pedigree as he did in bringing the perspective of an experienced practicing lawyer to the Supreme Court.  Potential conflict of interest concerns raised by Miers’ relationship with President Bush and his staff might ultimately have sunk her nomination anyway had she not withdrawn it.  By contrast, Clarence Thomas has ruled in numerous cases where he had clear conflicts of interest with little or no criticism from his supporters on the political right.

Considering the sorts of cases which will soon come before the Supreme Court, we should remember that as an institution it has been used as often as a tool to remove and restrict rights as it has to grant them (if not more so).  The aforementioned appointment of Lucius Lamar is not the only time that the Supreme Court has been used to undermine full citizenship for black people in the United States.  Before William Rehnquist became associate justice (nominated by Nixon), then Chief Justice of the Supreme Court (nominated by Reagan), he was a “poll watcher” in Arizona under the auspices of Operation Eagle Eye, a nationwide campaign by the Republican National Committee to suppress black votes.  This 2021 piece by Charles Pierce makes a convincing argument Rehnquist tried to pass off his personal opposition to the ultimate outcome of Brown v Board of Education as that of the justice he clerked for (Robert Jackson, Jr).  In this memo, he defended Plessy v Ferguson as good law, and likely lied about it in both of his Supreme Court confirmation hearings.  From the time he became one of Rehnquist’s law clerks, to replacing him as Chief Justice of the Supreme Court, John Roberts has had the Voting Rights Act in his sights as a law to be weakened (if not destroyed).

Contrary to the polls (and numerous previous demonstrations of an utter lack of spine), Lindsey Graham has emerged as a supporter of the idea of a black woman nominee to the Supreme Court.  Current US District Court judge J. Michelle Childs of South Carolina being a possible nominee certainly doesn’t hurt.  If the current shortlist is any indication, any of the black women Biden selects from it will be just as qualified–and likely more so–than any of their colleagues at the time of their selection.  It wouldn’t surprise me if Biden chose Breyer’s former clerk (Ketanji Brown Jackson) to succeed him.  But as a state university graduate myself, part of me hopes that someone with at least one degree from outside the Ivy League gets selected.

Two Tales of Tech Recruiting

In an industry that has had (and continues to have) persistent problems when it comes to how it hires and treats black people within its ranks, few things are worse than a black woman announcing on social media that she short-changed a candidate of $45,000 because “I personally don’t have the bandwidth to give lessons on salary negotiation”.

I’ve worked with both contract recruiters and full-time recruiters in 10 years as a manager staffing software engineering positions on multiple teams and none of them low-balled any candidate I chose to extend an offer because I intended to keep those folks for as long as I could. The alternative–losing good people to companies that can poach them simply by offering more money–meant not just losing their skills, and having fewer people to divide the same amount of work between, but my employer incurring costs trying to backfill the open position. Especially in a market where the competition for talented people is more and more challenging, the last way any company should start a relationship with a new employee is by undervaluing them from the moment they join.

A position I only filled a couple of weeks ago had been open for two solid months before that. Rather than risk losing a good candidate over $10,000, I requested an exception to offer a larger signing bonus. With the exception granted, we made a best and final offer that he accepted. The onboarding process is going smoothly, and since we’re paying him what he’s actually worth based on the geography we’re in and what our competitors are offering, he will be harder to poach with just money.

Fortunately, there are good examples of recruiters doing well by the people they recruit.

Unlike the first Johnson, this one probably built a significant amount of goodwill and trust–not just between herself and the candidate, but between the candidate and the company she will be working for. In an industry where software engineers are encouraged to switch jobs every couple of years, this company has a good chance of growing this junior software engineer into a senior software engineer–perhaps even a engineering leader–because a recruiter put their best foot forward.

As is sometimes the case on Twitter in cases like this, someone tagged the company Mercedes S. Johnson is recruiting on behalf of–and someone responded requesting a DM with more information. The tweet that actually led me to this whole story was about doxxing and how Ms. Johnson shouldn’t lose her job over the post. I’ve written about at-will employment and cancel culture before, and people have definitely lost their jobs for less than what this woman bragged on Twitter about doing. As of this writing, she was still defending her action.

If you work in tech recruiting and the opportunity presents itself, choose to be a Briana instead of a Mercedes. Both the companies you hire for and the candidates you recruit for them will thank you.

MLK Day 2022

The third Monday in January is here, and once again people who oppose everything Dr. King stood for are abusing the one line they know from the I Have a Dream Speech (because they don’t know any others) for their own political ends.  This annual whitewashing of King’s legacy only succeeds to the degree it has because the people doing the whitewashing don’t dare venture beyond the confines of that line in that speech because too much of what he written stands in direct opposition to their political aims.  This applies not just to the secular, but to the religious as well.

One of my cousins read his children Letter from Birmingham Jail yesterday.  This letter is where we can find the phrase “Injustice anywhere is a threat to justice everywhere.”    This letter is also where we can find this phrase: “Anyone who lives inside the United States can never be considered an outsider“.  You can be certain that none of the hypocrites quoting King today will quote that.  Decades after this letter was written, we’ve seen how this country continues to treat and talk about certain immigrants.  Decades after this letter was written, the segregation and police brutality of which King wrote in 1963 are still problems in this country today.  Actually reading his letter reveals that direct action was chosen as a last resort, only after the local leaders they negotiated with broke their promises.

This passage from the letter is sadly relevant once again in the wake of GOP measures to make it harder for those in the electorate who oppose their program to cast votes:

An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote. Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters, and there are some counties without a single Negro registered to vote, despite the fact that the Negroes constitute a majority of the population. Can any law set up in such a state be considered democratically structured?

When you read the letter written by eight Alabama clergyman that King was responding to, the motivation for this paragraph becomes crystal-clear:

First, I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizens Councillor or the Ku Klux Klanner but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, “I agree with you in the goal you seek, but I can’t agree with your methods of direct action”; who paternalistically feels that he can set the timetable for another man’s freedom; who lives by the myth of time; and who constantly advises the Negro to wait until a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

One key insight among many in King’s five-and-a-half page letter is the different ways in which the black community responded to the stubborn persistence of Jim Crow & segregation: adjusting to it, being desensitized to the problems of those black less secure economically and academically than themselves, or bitterness.   His warnings about what could happen if the nonviolent efforts for justice he supported were rejected would unfortunately become true–not just in the immediate wake of his assassination five years after this letter, but many times in the wake of police violence resulting in the death of someone in their custody (and/or acquittals as the result of the rare court trials officers faced for such violence).

King’s decades-old criticism of the contemporary Christian church in the America of his day should shame today’s Christian church:

The contemporary church is so often a weak, ineffectual voice with an uncertain sound. It is so often the arch supporter of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church’s often vocal sanction of things as they are.

But the judgment of God is upon the church as never before. If the church of today does not recapture the sacrificial spirit of the early church, it will lose its authentic ring, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century. I meet young people every day whose disappointment with the church has risen to outright disgust.

The hypocrites referencing King on this day are doing things like invoking his name in support of “All Lives Matter”, or to support their bans on Critical Race Theory (which could pretty easily prevent children in our public schools from actually learning anything about King’s letter).  Some More News has a hilarious, profane, and correct take on the annual whitewashing of King’s legacy.

1/6 and 9/11

Absent from much of the written commentary I’ve read about the insurrection at the US Capitol last year has been any mention of how much the nation’s response to the 9/11 attacks helped to pave the way to where we are now.  A friend sent me this piece by a Canadian professor which serves as a good example of what I mean.

Though he correctly identifies specific individuals and economic forces going back 40 years that transferred wealth upward even as they directed discontent (if not rage) about this state of affairs against poor and minority populations at home and “foreign aid” abroad, there is not a single mention of the nation’s response to the 9/11 attacks.  The nation’s lurch toward authoritarianism in the wake of those attacks was bipartisan.  Just a single congresswoman, Barbara Lee of California, voted against the open-ended Authorization for Use of United States Armed Forces which would later be used to invade Iraq on pretexts that would prove false.  Large bipartisan majorities in the House and Senate drafted and approved the Patriot Act for George W. Bush to sign into law.  It authorized the creation of the Department of Homeland Security.  George W. Bush’s administration engaged in warrantless surveillance of millions of Americans, extraordinary rendition of terrorism suspects, and torture of those same suspects.  Enemy combatant status was created out of thin air, as were the military tribunals in Guantanamo Bay, Cuba–all to deny people the rights they should have had under our Constitution.  The NYPD illegally surveilled Muslims both inside and outside New York City for over a decade after the attacks.  The LAPD tried and failed to create a similar surveillance program in 2007.

Thomas Homer-Dixon’s piece mentions Christians just twice, once as fertile soil for the seeds of white nationalist great replacement theory to take root and flourish, and again as a group that would be super-empowered in a second Trump administration.  He projects a rise in violence by vigilante, paramilitary groups in the same sentence, though the use of Christian symbols and rhetoric by such groups has a history stretching back well over a century in the US.  The involvement of conservative Christian groups in the insurrection is much less-surprising however when you look back at their response to 9/11.  When surveyed in 2009 by the Pew Research Center, a majority of white evangelical Protestants said that torture against terrorism suspects could sometimes or often be justified.  This belief was held both by majorities of Christians who attended church a few times a year or monthly, and those who attended church weekly–or more often.  Years after the original survey, you could even find a piece like this one in The Federalist quoting Bible passages and Thomas Aquinas to argue that Christians can support torture.

Not mentioned at all in the Homer-Dixon piece–significant increases in anti-Muslim sentiment in the aftermath of the 9/11 attacks.  The first murder victim of an anti-Muslim hate crime turned out to be a naturalized American citizen, Balbir Singh Sodhi. The turban he wore in adherence to the Sikh faith was sufficient cause for a bigot to murder him.  Anti-Muslim sentiment would later take the form of the birther conspiracy, for whom Donald Trump would become the most powerful cheerleader.  We have seen other anti-Muslim murders due to the ignorance of bigots (in Olathe, Kansas) as well as violent assaults. We’ve also seen the political right demagogue Park51 into the “Ground Zero mosque”.  That same year (2010) saw the introduction of anti-Sharia bills in a significant majority of our 50 states.  The number of conservative professed Christians who believed (and perhaps still believe) the birther conspiracy is in retrospect perhaps one explanation for the ease with which the QAnon conspiracy spread within the same community.  But looking back a bit further, that community’s response to 9/11 might have revealed a predisposition to conspiracy theories more generally.  In 2006, a division of the denomination publishers for the Presbyterian Church published a 9/11 conspiracy book.

There will certainly be more commentary about January 6th as this year progresses–particularly as more insurrectionists plead guilty to the crimes with which they’re charged or (finally) face trial.  But the absence of a full reckoning with how this country’s responses to 9/11 helped pave the way for 1/6 will prevent us from fully understanding that event–and might enable the next insurrection to succeed.