Malcolm X to Barack Obama: The Supreme Court Needs Someone Like Me

Rebecca Sive

Please Mr. President, no "unobjectionable" appointment. Take a man or woman -- lesbian, gay, or otherwise -- who stands for something as our next Supreme Court Justice.

This article was originally published by Huffington Post.

Colleagues asked me last week, throughout that week of trouble, (and I’m not talking about trouble over volcanic ash over Europe): Where have you been lately? I’m reading my Huffington Post, and I don’t see you.

Well, mostly, I’ve been sitting in my office mulling over this matter of the president’s upcoming Supreme Court appointment. 

But, I did take a couple breaks: mid-week, I attended a gathering of progressive policy-wonks-in-the-know, (or so they say), where I heard talk of, not to say expressions of longing for, Franklin Roosevelt, in conversations about President Obama’s “Wall Street Reform” campaign.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Later, in conversations with these same folks, I heard talk of LBJ, in the context of discussion about the week’s Tea Party gatherings, and the view of those folks that Organizing for America has failed to be an effective counterweight. 

But the main Chicago buzz-of-the-week was about the president’s prospective choice for Supreme Court Justice: Which one of those top-three frontrunner Chicagoans would the president pick?

Now, that’s a fun topic, great insider baseball talk for those still-in-Chicago friends and colleagues, who didn’t get picked to go to the White House, but who (also) know Judge Wood, or Judge Garland, or Solicitor General Kagan, or all three.

Heck, even at my family dinner table we talked about this with some insider knowledge and perspective: Judge Wood taught my husband at the University of Chicago Law School, and Solicitor General Kagan was a member of the, get-this, “Federal Courts Committee,” of the Chicago Council of Lawyers, when my husband was the Council’s President.

And, I spent some real-time recruiting big-time political donors to pay for the lawyers, in the RICO case about the rights of abortion clinic protestors, the case now causing Judge Wood so much grief.

For me, this gossipy fun ended Friday morning when the proverbial “…. hit the fan.” That’s when the Washington Post published a story in which:

…[A]n administration official, who asked not be identified discussing personal matters, said (Elena Kagan) is not a lesbian.

Yup, read that one again: “…[A]n administration official, who asked not be identified discussing personal matters, said (Elena Kagan) is not a lesbian.” 

The minute I read this, being the political junkie I am, my mind jumped to that all-time Richard Nixon favorite, “I am not a crook.” I guess it was just the way the sentence read. 

But, then, I got serious ’cause these kinds of political circumstances are no time for fooling around. In fact, these kinds of circumstances are Machiavelli time: No one else will do when you’re trying to parse-out seemingly arcane political moves about deadly serious political topics.

Talk about a process story; talk about a process story that matters. And boy, (or girl, in this case), does this one (matter). Machiavelli wins, hands-down, when that happens (to a process story).

Did the White House throw Kagan over the bus because, notwithstanding the pundits’ all week long take, the president isn’t seriously considering Ms. Kagan for the Supreme Court? To add insult to injury, did the White House throw Kagan over the bus in the most cowardly way possible — via an anonymous White House source talking about her presumptive sex life?

Certainly, the timing of the White House denial about Kagan’s supposed sexual preference is suspect, suggestive of Machiavelli-style manipulation of public opinion.

The denial happened on the same day the president issued his directive to the Secretary of Health and Human Services, (by long-distance e-mail from Miami), mandating hospitals to allow visits by partners of gay patients.

Of course, the alternative-take here is that this incident was just another “bone-headed” move (some of you may remember that one). 

The boneheaded move goes something like this, in the Elena Kagan as Supreme Court Justice nominee context: We didn’t mean to suggest that being a lesbian is like having some dread and mortal disease; we were just innocently inartful. But, in my experience of 26 years and counting, David Axelrod just isn’t boneheaded.

Fact is, talking about people’s supposed sex-lives, especially people who might be Supreme Court Justices, is a killer move, a truly Machiavellian one.

Phew, it’s Monday, and that news cycle is past. And the president didn’t have to traipse off to Poland ’cause of the danger of that danged volcanic ash. 

Actually, it’s too bad: Did you know that Chicago is the second largest Polish city in the world?

So, here’s the question: What philosopher could the president usefully read today, at the beginning of a new week, as he thinks about his Supreme Court Justice choice and his next news cycle?

Well, no need for Machiavelli right this minute, so I recommend Malcolm X. Malcolm X, who famously said: “A man who stands for nothing will fall for anything.”

Prior to putting pen to paper, I spent a few minutes looking around the web, to see what’s already out there in the blogosphere, besides the coverage of the Elena Kagan hullabaloo, on this matter of the president’s Supreme Court pick. 

Yes, there are some new Chicago names on the supposed list of Supreme Court possibilities.

But, here is my most astonishing find: Slate columnist, famous and admired legal writer, and up-till-now unabashed Barack Obama partisan, Emily Bazelon, wrote a piece last Tuesday, expressing her concern about the choice the president might make for our next Supreme Court Justice. 

Here’s Bazelon:

The President doesn’t want a fight. The Republicans don’t really, either. That about sums up the chatter about the confirmation process…It all points to the nomination of either the unobjectionable Judge Merrick Garland of the D.C. Circuit Court of Appeals or Solicitor General Elena Kagan, shortlisters who have hung out with Democrats their whole professional lives without marking themselves unmistakably as liberals.

Oops, that was Tuesday. Forgot that part about Elena Kagan’s presumptive sex life, and the danger it poses to the rest of us. How fast the worm turns: You better not (even) be thought to be a lesbian, because, if you are, you sure aren’t “unobjectionable” anymore; that much was made clear by the White House by Thursday.

Ironic in light of Thursday’s declaration about the Solicitor General’s supposed sex life, Bazelon’s main agenda in her Tuesday Slate piece was to demonstrate that Judge Wood, she of the RICO cum abortion case, might be almost as “unobjectionable” as Kagan. 

But, here’s the “buried lead” in Bazelon’s piece: “But before the left obediently backs a Kagan or Garland nomination….”

Bazelon’s shades of Malcolm X: Bazelon actually suggesting that we, the progressives who elected Barack Obama president, not “…obediently back…an unobjectionable pick;” that we support someone who stands for something. 

Shades of Barack Obama in a 2007 incarnation:

We need somebody who’s got the heart to recognize, the empathy to recognize what it’s like to be a young teenage mom; the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.

But, apparently not “…the heart to recognize what it’s like…” to be (?) gay.

Now, let me be clear: I’ve got no brief for Solicitor General Kagan, nor, unlike Emily Bazelon, for Judge Wood, and, for sure, not for Judge Garland, yet another among the hundreds of white guys who could be Supreme Court Justices, who studied hard, did the right thing, never even murmured something inopportune, and, so, made good.

But, I do have a brief for those of us who took-to-heart those words of our president, for those of us who took heart when then Senator Obama fought President Bush’s Supreme Court Justice pick, Judge Samuel Alito, a man who, notwithstanding his modest upbringing, doesn’t, apparently, understand “…what it’s like to be poor.”

Mr. President: How ’bout that empathy? If not now, when? 

Mr. President: Isn’t it time to appoint the counter point to Justice Thomas? Isn’t it time to appoint this generation’s Justice Stevens? Isn’t it time to appoint this generation’s Thurgood Marshall, or William O. Douglas, or Ruth Bader Ginsburg, or Earl Warren, or Lewis Brandeis?

Mr. President: Isn’t it time to appoint someone who has stood for something, to appoint someone who has lived and advocated for change we can believe in?

Mr. President: Here’s another short list that might help you hone your thinking, (as, Politico reports ), you’ll be doing for the next few weeks).

This list describes what’s on the current Supreme Court docket. I’ve picked just a few of my faves: “habeas corpus,” “Miranda Rights,” “sentencing reform,” “speedy trial,” “gender discrimination,”” separation of powers,” First Amendment,” “unlawful detention,” and “employment discrimination.” 

Well, that list about covers the issues where one’s real-life experience, and understanding of how Court decisions affect it, as well as one’s knowledge of the Constitution, matter, all qualities you, Mr. President, have indicated are important to you for your next Supreme Court Justice pick.

Mr. President: All of us Americans learned many important lessons in the fight for your healthcare reform bill.

But, for the rest of us, the most important lessons were the ones you learned.

To me, the most important of those was Malcolm’s: “A man who stands for nothing will fall for anything.”

Mr. President: In that fight over healthcare, when you stood for something, and fought for it, you won. 

Mr. President: In that fight for healthcare, when you stood for the people, and not for the (healthcare) plutocrats, you won.

Mr. President: In that fight for healthcare, when you stood for “ordinary Americans,” the Americans who most need Supreme Court Justices with “heart,” when you stood for them, you won.

So, please, please Mr. President, no “unobjectionable” appointment. Please, please, Mr. President, take Malcolm’s lesson, along with that lesson from the health care fight, to heart. Take a man or woman — lesbian, gay, or otherwise — who stands for something as our next Supreme Court Justice.

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.