From: egl1@cunixf.cc.columbia.edu (Elizabeth G. Levy)
Newsgroups: alt.politics.clinton,alt.politics.election,alt.politics.bush,talk.politics.misc
Subject: THE TRICKLE DOWN OF JUDICIAL RACISM
Summary: Harper's article
Date: 19 Aug 92 03:07:14 GMT
Reply-To: egl1@cunixf.cc.columbia.edu (Elizabeth G. Levy)
Organization: Columbia University

[Speech]

THE TRICKLE DOWN OF JUDICIAL RACISM

[copied w/o permission from Harper's, August '92; typos are, of course,
mine]

From "Riots, Racism, and the Courts," by Judge Stephen Reinhardt, a
commencement speech given in May at Golden Gate University, in San
Francisco.  Reinhardt is a federal appellate judge in California; he was
appointed by President Jimmy Carter in 1980.

In the wake of the Los Angeles riots, a nationwide poll showed that 84
percent of African-Americans believe that they do not receive fair or
equal treatment in our courts.  To me, that figure is shocking.  It
means that our judicial system is failing.  We have lost the confidence
of those who most need to believe in the fairness of the judiciary.

Obedience to law is most likely to occur when there is respect for the
legal system -- for its fairness, for its sense of equality.  Without
that respect only brute force can command obedience.  Practically, we
cannot, in this nation, enforce law by might.  There are simply not
enough policemen, not enough National Guardsmen, not enough regular
troops to perform that job adequately.  So we are compelled, like it or
not, to maintain respect for law, for our courts, by our deeds.  We must
demonstrate that our courts stand for justice or we must face the
consequences.

What is most disturbing about this distrust of the judicial system is
that only a few years ago it was the federal courts -- and particularly
the Supreme Court of the United States -- that offered the greatest hope
to the nation's minorities.  It was the Supreme Court that acted to end
segregation in this country when neither the executive nor the
legislative branch had the will or the courage to do what common sense
and the Constitution demanded.  It was the Supreme Court, dedicated to
the expansion of individual rights and liberties, that said this nation
could no longer continue on a course of inequality, that all Americans
must be treated fairly under the law, that government-sponsered racial
separation must end.  And in an unbroken series of far-reaching
decisions, the federal courts, led by Chief Justice Earl Warren,
expanded the rights of all citizens and helped transform this nation
into a land in which African-Americans for the first time were afforded
the full rights of citizenship, a land in which our Constitution
flourished.  Until a few years ago, African-Americans with problems knew
they could look to the federal courts for help.  They knew they would
find a sympathetic audience, that their interests would be protected,
and that the civil rights laws of our nation would be vigorously
enforced.

All that has changed.  The message the _new_ Supreme Court has delivered
to minority communities is clear: we no longer care.  We have other
concerns.  Look elsewhere for help.  In 1989, in a series of major civil
rights decisions, the Rehnquist Court let minorities know of its
attitude toward civil rights laws.  The Court made if far more difficult
to win discrimination cases, while making it much easier for white males
to challenge the legality of consent decrees regulating hiring
practices.  A judicial revolution had occurred -- a revolution that will
not easily be reversed.  A Court that once served the poor, the
oppressed, and the disadvantaged now has entirely different clients,
entirely different interests, an entirely different agenda.

The Supreme Court continued on its anti-civil rights course this term.
In Presley v. Etowah County Commission, the Court overruled the Justice
Department, the agency charged with administering the voting rights laws.
African-Americans in Etowah County, Alabama, had, for the first time in
recent memory, accumulated enough political strength to elect a black to
their county board of supervisors.  The white majority on the board
responded by removing from individual supervisors all power to make
decisions regarding their respective districts and giving that power to
the board as a while.  The Supreme Court held that the Voting Rights Act
was not violated.  Is it any wonder blacks believe they are not treated
fairly in our courts?

And civil rights decisions are not the only cases in which the Rehnquist
Court has demonstrated its hostility to the pursuit of individual rights
in federal courts.  The Court has erected a series of procedural
barriers -- some in the name of federalism -- that serve to limit the
opportunity of minorities and poor people to have their grievances
redressed.  Concepts such as mootness, ripeness, abstention, and
standing have been employed to close off access to the federal courts
and to deny federal remedies to people whose constitutional rights have
been violated.  Illustrative of these procedural techniques is the
Court's decision in Los Angeles v. Lyons.  Lyons held that a black
victim of a police chokehold could not sure to bar further use of that
technique because he could not prove that _he_ would be choked again. Of
course, Lyons was not the only one who could not meet the standard. No
one else could either.

After Lyons came McClesky v. Kemp.  In McClesky, the Court said, openly
and unashamedly, that institutional racism in our courts is of little
consequence as far as individual black defendants are concerned.  Unless
a black man about to be executed can prove that racism was the specific
cause of _his_ conviction or sentence -- another standard that can
rarely, if ever, be met -- the Court will not consider a challenge based
on the fact that blacks are treated differently from whites, no matter
how persuasive the evidence.

These decisions showed the African-American community that the federal
judiciary is no longer interested in protecting the rights of
minorities, that federal judges are far more concerned with protecting
the interests of white males.  To minorities -- and particularly to
black Americans -- this was a bitter blow.  The age of Earl Warren,
William Brennan, and Thurgood Marshall was the golden age of civil
rights.  Minorities were given the feeling that someone cared, that
government cared, that the law was on their side.  Understandably, with
the Rehnquist Court in full sway, they no longer believe that.  Their
earlier believe gave them hope.  Their current belief leads only to
despair -- and to disrespect for the law.

There are other aspects of our laws and sentencing procedures that have
undermined the faith of minorities in the judicial system: the disparity
between sentences for possession of crack, a substance used primarily by
minorities, and possession of cocaine, a favorite of wealthy Caucasians;
the harshness of some of our other narcotics laws and their disparate
impact on young, unemployed black males; and the drastic difference in
treatment of the types of offense most frequently committed by
minorities and those of which Caucasians are most often perpetrators
-- lenient sentences for white-collar fraud or theft of millions
dollars, and the harsh punishment for more traditional crimes involving
far smaller amounts of money or property.

There is a final, overriding reason why blacks lack confidence in the
federal courts.  By their appointments, Presidents Reagan and Bush have
ensured that the federal courts will not be representative.  Instead,
they are a bastion of white America.  They stand as symbols of white
power.  I will report only on the courts I am most familiar with -- the
federal appellate courts, the second highest courts in the land. Because
blacks are rarely appointed to so rarefied a position in the past --
only Presidents Truman, Kennedy and Johnson had made any such
appointments -- President Carter made a herculean effort to redress the
existing inequity when he took office.

In 1976, there were only two black federal appellate judges on the
bench.  President Carter appointed a total of fifty-six judges to the
federal appellate courts, and nine -- 16 percent -- were blacks.
Starting in 1980, however, Presidents Reagan and Bush dramatically
reversed the course.  In his eight years in office President Reagan made
a total of eighty-three appointments to the federal courts of appeal.
During that time he succeeded in finding only one black he deemed worthy
of appointment.  George Bush, with thirty-two appointments thus far, has
also been able to locate only one African-American he thought qualified
to serve -- Clarence Thomas.  Now that Justice Thomas has been rewarded
with an even higher office because of his outstanding legal abilities,
there are no black Bush appointees on the courts of appeals.  In
President Bush's view, Clarence Thomas is apparently all there is out
there in black America.  And as the Carter judges age, we can expect the
now extremely small percentages of African-American appellate judges to
diminish even further -- a sorry indictment of the federal judiciary,
and yet another compelling message to African-Americans that the legal
system belongs to others.




--
But this is.
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