ACSBlog: The Blog of the American Constitution Society

by William L. Taylor, chair of the Citizens’ Commission on Civil Rights and vice chairman of the Leadership Conference on Civil Rights. The post is taken from a speech Taylor gave earlier this month at an ACS Student Chapter event at the University of Missouri School of Law - Columbia.

I imagine at least some of you are in law school because you have a desire to use the legal skills you are acquiring to do some good.

My central proposition is that if the federal courts are dominated by judges chosen for their conservative ideology, you may never in your professional careers go into a federal court with the expectation that you will be able to attain something of lasting benefit to your clients – whether it is equal treatment and opportunity in education, housing, jobs; whether it is a safe environment; safety on the job; social services provided in various laws.

There may be some state courts you will be able to go to for that kind of relief, but that will vary from state to state.

What is the basis for my seemingly extravagant (Cassandra-like) statement?

First, federal courts are teetering on the brink. The Supreme Court, with the resignation of Sandra Day O’Connor and the accession of John Roberts and Samuel Alito, is decidedly conservative – hostile to the claims of disadvantaged people – on many issues. Even one new appointment in the mold of Justices Roberts, Alito, Scalia and Thomas could sway the outcome of many cases.

Second, no matter who controls the Senate, there is little reason to believe that Senators will be successful in denying confirmation to nominees for the Supreme Court and courts of appeals. Let me give you some reasons why this is so.

A challenged nominee has several advantages over the body of Senators that hear his nomination. First, the nominee can play rope-a-dope with the committee. Members of the committee may believe (as I do) that judicial philosophy is key and that in the words of the Carolene Products case, courts have a special duty to protect “discrete and insular minorities” who suffer prejudice in the political process. But the last time the Senate Judiciary Committee got anything like full disclosure from a nominee was in the Robert Bork hearings 20 years ago. 

Bork’s relative candor and his sour manner of expressing his views did him in. After that, other nominees went to school on the Bork mistakes. Scalia would not even say whether he thought Marbury v. Madison was correctly decided. Roberts, who expressed himself freely as a young attorney in the Reagan Administration, saying, for example, that he didn’t think the Administration tried hard enough in the Supreme Court to uphold a Texas statute, denying alien children entry to public schools, said that as a Supreme Court justice, he would just be an umpire, calling the balls and strikes as he sees them. And of course, any serious question is likely to be deflected by the response that it involves an issue that may come before the Court and thus cannot be answered in committee. Rarely has a Senator said that without a clear expression of the nominee’s philosophy he – the Senator – will not vote for him.

The nominee may also choose to hint that whatever his past record as a litigator or law professor or lower court judge, he is open to change. And that case was made by some on behalf of Clarence Thomas. Surely, he could not be as close-minded as some of his past pronouncements indicated. Well as it turns out, he was, as was Scalia and Rehnquist, and on the evidence so far, Roberts and Alito. So the possibility of justices being liberated after confirmation is not supported by history.

Then there is the setting of the hearings themselves. The nominee comes with his or her spouse, children, maybe grandchildren as well. It seems to some mean-spirited to pose tough questions and to persist when they are not answered. Some of you may remember when Mrs. Alito dissolved in tears at a key moment in her husband’s hearings and left the room. Many may not recall that the question was put by Senator Lindsay Graham, who was one of Alito’s great supporters. From that point on, the fix seemed to be in.

Then there is the possibility that one Senator or another may use a nomination as trading bait, meaning “I’ll vote for your nominee, Mr. President, if you’ll send someone for the seat in my state that I like.” So nominations become patronage, not the building blocks for a strong judiciary. It is not pretty; it is not principled, but it happens.

So for all of those reasons and more, we cannot rely on Congress to deal with the excesses of a conservative president.

Indeed, the major progressive changes in the court have come largely through strong manifestations of a public will that influenced the court or Congress or both. In the 30s, FDR threatened to pack the court, an unwise move, but the Justices, recognizing that he had the people behind him, changed their tune (Owen Roberts made the celebrated “switch in time”).

In the 50s, during the early emergence of the civil rights movement, President Eisenhower, unknowing, appointed Earl Warren to the Supreme Court, and helped trigger Brown v. Board of Education and then the direct protest movement led by MLK.

That is what is needed now —an expression in this election of mass support for governmental fairness and equality of opportunity.

I have led a lucky life. I graduated law school in 1954 and got a job working for Thurgood Marshall and the NAACP LDF, right after Brown v. Board of Education was decided. I have been a civil rights lawyer ever since, leading the Civil Rights Commission in the 60s, litigating in the courts, working for new civil rights legislation in Congress, and helping groups push for strong implementation and enforcement of civil rights legislation.

I have seen repressive administrations come and go. But I have been fortunate enough to have drawn fair-minded judges in the courts and I have won the great bulk of my cases. My late wife was a judge on the Superior Court in DC and from that perch she was able to help disadvantaged children and homeless people.

I could wish nothing better for you than the rewarding life my wife and I have had. But it may be tougher for you than it was for me. This society has become far wealthier than it was in my day. The wealthy in many ways exercise more power than they did in the past, the gap between rich and poor is wider and the rewards that may tempt people with your skills are greater as well. 

So if you want a different kind of life, you may have to fight for it harder, to exercise leadership in your communities. You have a great chance two months from now and I hope you will take it.