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Brennan Center For Justice Symposium Introduction: Diversity, Impartiality, and Representation on the Bench
As is evident from these articles, the question of judicial diversity is far more complex and nuanced than the current debate suggests. Many unanswered questions remain. The scholars in this issue and the others who presented their work at our convening have begun to reframe the debate and identify the hardest questions. We hope that this symposium issue will provoke further thought and provide a context for additional scholarship that will help us to answer those questions.A Principled Approach to the Quest for Racial Diversity on the Judiciary
Part I of this Article considers the different voices and perspectives added to the judiciary by the appointment of minorities. Part II analyzes the many impacts of diversity on the bench, including greater judicial impartiality. Part III sets forth the arguments supporting a diverse jury pool and discusses how they inform the analysis of the quest for racial diversity among judges. Part IV outlines a principled approach to the pursuit of judicial diversity.Through the Lens of Diversity: The Fight for Judicial Elections After Republic Party of Minnesota V. White
This Article is directed at the ongoing discussion taking place in many states and among members of the bench and bar about whether states that elect judges should switch to appointment in light of White. The author argues that states should resist what he regards as the Court's heavy-handed dicta denouncing judicial elections in White. Rather than accede to the pressure to shift from an elective to an appointive system-pressure that is being felt in several states- the author contends that states should regard the White decision as an opportunity to engage in a thorough and far-reaching review of judicial selection. Before presuming that judicial elections ipso facto cannot be reconciled with the ideal of judges as independent, impartial decision-makers, states should seek ways to improve their methods of judicial selection in order to improve judicial decision-making. States with judicial elections should be prepared to drastically transform the way judges are elected to address what I concede are significant failings in most judicial election systems. Principal among these deficiencies, in my view, is the failure of judicial elections to adequately address the lack of racial diversity on the nation's courts.Does a Diverse Judiciary Attain a Rule of Law That is Inclusive?: What Grutter V. Bollinger Has To Say About Diversity on the Bench
This Article concludes that political dialogue engendered by controversial minority judicial nominations, like those of Miguel Estrada and Janice Rogers Brown, could be an avenue to educating the polity as to why it is important to achieve greater minority representation on the bench. The pluralistic process-based model of judging advocates that a critical mass of diverse judges be achieved, not that the minority judges be liberal rather than conservative, communitarian rather than individualist, or Democrat rather than Republican. The goal is that there be a critical mass of minority judges on benches that make decisions as a group, like circuit courts and supreme courts. This ideal is one towards which pluralist polities must strive.Challenging the Bounds of Education Litigation: Castaneda V. Regents and Daniel V. California
This Note argues that by combining the normative suasion of educational finance litigation with the political imperatives manifested in affirmative action law and practice, those who seek to improve the quality of secondary education and expand access to higher education would likely effect greater change than they would working independently. Under the appropriate political and legal circumstances, access to public higher education ought to be treated as something akin to a fundamental right, the unequal distribution of which constitutes a violation of equal protection for students of color and for economically disadvantaged students. Using the Castaneda and Daniel lawsuits to probe the rigid contours of school "finance" reform litigation and the overly formal conceptions of race-based preferences that pervade discourse about affirmative action, the author argues that these cases provide promising examples of the ways in which advocates for diversity in higher education may capitalize on the political will of the people and the structure of the state system of public education to advance an agenda that simultaneously improves secondary education while diversifying institutions of higher education. Although this Note concentrates on two cases from California, it fundamentally concerns what advocacy for educational equity will look like throughout the country for the next generation of students of color and of economically disadvantaged students. These cases, though born of the particularities of California's state education system, do not embrace strategies unique to California. Rather they are harbingers of a promising nationwide trend.Racism as “The Nation’s Crucial Sin”: Theology and Derrick Bell
Part I develops Bell's thesis that racism is permanent, an ineradicable structure in American life. Bell's stance here is unrelenting and a direct and deep challenge to liberal notions of racial progress. This section draws out the social facts Bell provides about the status of Blacks in American society and examines Bell's argument for the continuing disparity between the races, particularly the claim that Whites hold on to a property in Whiteness. Part II analyzes Bell's call for action despite racism's permanence. Part III develops Niebuhr's theology of the possibility of action despite sin. Niebuhr too criticizes the liberal-and liberal theological- belief in continuing progress; for Niebuhr, evil is not overcome. Part IV returns to Bell and assesses his religious orientation and the degree it may be receptive to Niebuhr's theology. Part of the assessment here will be whether Bell's stance is more existential rather than religious. Part V concludes by examining some of the larger implications of Bell's thesis: the continuation of deep structures that resist characterization simply as social constructions. Reference will be briefly drawn to the contributions of Bell and critical race theory to a movement beyond nonfoundationalism. Because the Article intends to offer additional grounds for the comprehension of Bell's conundrum-that racism is permanent and yet must be continually fought-the goal is understanding, not criticism. I hence assume Bell's thesis throughout.Multiracial Identity, Monoracial Authenticity & Racial Privacy: Towards an Adequate Theory of Mulitracial Resistance
This Article is divided into five parts. Part I briefly places the significance of the Supreme Court's affirmative action ruling in Grutter v. Bollinger in context, particularly the implications of its recommended twenty-five year timeframe in recognizing racial diversity. Part II examines the dangerous consequences of implicit assumptions underlying the RPI. More specifically, I investigate the potential ramifications the RPI would have had upon multiple sectors of our society, including healthcare, education, and law enforcement. In the process, I attempt to demonstrate that the concept of racial privacy is a strategic misnomer intended not to protect one's privacy, but rather to privatize race away from the accountability of governmental institutions. Part III discusses multiracial identity and the hierarchy of racial classifications. I examine why multiracial classification advocates conceptually support the RPI but nonetheless remain skeptical of its ability to render racial distinctions meaningless. In Part IV I attempt to illustrate through personal narrative why multiracial identity is not necessarily inconsistent with a regime of self-identified monoracial classification. In addition, I discuss precisely why we should continue to repudiate colorblind initiatives such as Connerly's RPI. Part V addresses the more general difficulties posed by racial classifications, including objections raised by progressive colorblind theorists. In this regard, I attempt to unpack the relationship between racial identity and movements for racial justice, giving some attention to the notion of political race recently articulated by Lani Guinier and Gerald Torres. Ultimately, I hope to offer critical considerations for an effective stratagem, and perhaps, a better fate for positive race conscious remedies in the twenty-five years to come.Toward an Understanding of Judicial Diversity in American Courts
Part I of this Article explores the utility of descriptive representation as an important concept in understanding why judicial diversity matters from a political perspective. Part II begins an empirical examination of judicial diversity at the federal level while Part III presents an analysis of state court diversity. The data presented in Parts II and III indicate that judges of color are underrepresented at all levels of the federal and state court systems and that particular racial and ethnic groups are virtually excluded from federal and state benches. The conclusion argues that the data presented in this Article support a disquieting portrait that erodes the myth of progress toward the attainment of a multiracial and multiethnic American judiciary.Breaking the Camel’s Back: A Consideration of Mitigatory Criminal Defenses and Racism-Related Mental Illness
This article will examine the concept of racist words, symbols, and actions that are used as weapons to "ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent conduct, are appropriate considerations for the criminal law, as such speech is racial violence itself and may lead to the responsive physical violence that is beyond the protection of the First Amendment.Obligations Impaired: Justice Jonathan Jasper Wright and the Failure of Reconstruction in South Carolina
Part I of this article, on the historiography of South Carolina Reconstruction, explains the difficulty scholars have had in uncovering the documentary history of Reconstruction, and outlines the development of historical interpretations of Reconstruction from the Nineteenth century Redeemer-era accounts to the revisionists of the 1970's. Part II provides brief biographies of both Justice Wright and William James Whipper. Parts III and IV track the different approaches of Whipper and Wright on two vital issues of their day: (1) whether to repudiate all private debts relating to slavery; and (2) how to construct a homestead law to protect cash-poor landowners. Finally, the article concludes that if Wright had taken Whipper's more aggressive tact in his judicial opinions and political activity, the story of South Carolina Reconstruction might have evolved differently. African Americans might have retained some of their political voice as memories of Reconstruction faded into the past.
