Racial Means Testing

"Feddie" of Southern Appeal is a contributor to the group blog Confirm Them, which is dedicated to seeing the President's federal judicial nominees granted an up or down vote in the Senate. From it I learned of Steven Calabresi's excellent piece in the Weekly Standard, "Minority Rule?" It is the best article on this controversy I've read, and I urge you to read it start to finish. Calabresi has an endowed chair at Northwestern University's law school.

THE LEGAL LEFT IS DANGEROUSLY close to winning the political war it has been fighting against the Bush administration over the future direction of the federal courts. The evidence of this is that whenever rumors are floated of possible Bush Supreme Court nominees, there are some very prominent conservative names that aren't mentioned, though they should be.

The eminently qualified conservatives Democrats have quashed include Miguel Estrada, who is Hispanic, Janice Rogers Brown, who is African American, Bill Pryor, a brilliant young Catholic, and two white women, Priscilla Owen and Carolyn Kuhl. By keeping these five nominees off the federal courts of appeals, Democrats seem to have blocked Bush from considering them for the Supreme Court.

When George W. Bush became president in 2001, the legal left and the Democratic party rallied around the slogan "No more Clarence Thomases." By that they meant that they would not allow any more conservative African Americans, Hispanics, women, or Catholics to be groomed for nomination to the High Court with court of appeals appointments. The Democrats have done such a good job of this that, today, the only names being floated as serious Supreme Court nominees are those of white men.

As Calabresi goes on to demonstrate, this tactic -- forcing Republicans to nominate only white men -- allows the Democrats to achieve two goals. First, white men are much easier for the left to demonize than are minorities and women (not that they're above that -- see the post below). That makes it easier for liberals to keep conservatives off the court. Second, and, I'd add, in a move with longer-term strategic and electoral consequences, by introducing what amounts to a racial means testing (my term) for federal judicial nominees, the left keeps conservative minorities and women out of the public eye, lest they serve as an example that others in their communities might follow.

This helps the left maintain the charade that only white men are conservative, something they must do if they're to keep their grip on the votes of minorities and, to a lesser extent, women. And it reveals the left's shameless, and decades-old, efforts to define black authenticity so as to exclude conservatives or libertarians as legitimate members of their race.

Plus, as Calabresi says:

Conservative African-American, Hispanic, Catholic, and female judicial candidates also drive the left-wing legal groups crazy because they expose those groups as not really speaking for minorities or women. They thus undermine the moral legitimacy of those groups and drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.

As long as white liberals are allowed to define the parameters of authenticity for minorities and women, the national interest groups will continue to exclude members of those groups whose view the exclusionary left deems heterodox. In the past, the groups could count on a sympathetic press to reflect their moral posturing, but today, as we know, that has changed. Or, at least, it has changed regarding other stories. We'll all learn soon whether or not the old status quo still lives when it comes to race and the judciary. If Republicans succeed in removing the Democrats' ability to break with 214 years of Senate history to require a super-majority for appointments to the federal bench, it'll be a sure sign that a new day has dawned.