The allegations were that Judge Higginbotham was Black and identifies with Blacks, specifically, he was a leader of the Black civil rights movement, with an "emotional attachment to the advancement of black civil rights" and a belief in rectifying racism in America, and that he had demonstrated the preceding in a speech before "a group composed of black historians" (the Association for the Study of Afro-American Life and History) (157-58). These demonstrated an appearance of partiality towards the Black plaintiffs, which warranted recusal. In the course of his now-famous opinion, Judge Higginbotham carefully eviscerated this argument, showing how it was predicated off essentially racist notions, effectuated a double-standard for both Black litigants and Black judges, and wrongfully conflates opposition towards racism with opposition towards Whites.
In support of his refusal to recuse, Judge Higginbotham mustered an impressive array of judges who had commented on matters of public concern and/or engaged in scholarship and inquiry on cutting edge, controversial legal topics, without feeling the need or pressure to recuse themselves. One of these examples includes the following:
I am pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jewish Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community. I respect them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges. (180)
The opinion is a tour de force, and I highly recommend it top to bottom. But I am reminded of it most often in all the cases where it is asserted, explicitly or implicitly, that all but a bare handful of good Jews are too provincial, too partisan, or too biased to be worth listening to (much less be given any decision-making authority) on matters connected to Jewish life or experience.
While the motion did not, in fact, require that all Blacks refrain from judging cases involving Whites or civil rights, it did demand that only a very narrow range of "acceptable" Black persons, ones who had meticulously refrained from taking a stance on or discussing matters of racism, be permitted. And such a stance, Judge Higginbotham accurately noted, was functionally no different from a blanket rule of racialized exclusion. What motivated the motion, the Judge suspected, was that anxiety that Whites no longer were in a position where they could be assured that they'd never be forced to submit to the judgment of a Black man or woman.*
If, for the reasons previously discussed, defendants' motions are meritless, and since the motions are presumably filed in good faith, what other rationale could explain why defendants so vehemently assert their claim that I be disqualified in the instant case? Perhaps, among some whites, there is an inherent disquietude when they see that occasionally blacks are adjudicating matters pertaining to race relations, and perhaps that anxiety can be eliminated only by having no black judges sit on such matters or, if one cannot escape a black judge, then by having the latter bend over backwards to the detriment of black litigants and black citizens and thus assure that brand of "impartiality" which some whites think they deserve.
Since 1844, when Macon B. Allen became the first black lawyer to be admitted to the bar of any state, and since John S. Rock was admitted to the bar of the United States Supreme Court on February 1, 1865, black lawyers have litigated in the federal courts almost exclusively before white judges, yet they have not urged that white judges should be disqualified on matters of race relations. In fact, in the "good old days" before William H. Hastie was appointed in 1949 to the United States Court of Appeals for the Third Circuit, white litigants throughout America were able to argue before a judiciary from the United States District Courts to the Courts of Appeals to the United States Supreme Court without encountering a single black judge along the entire judicial route; for until Judge Hastie's appointment there were no black Article III judges. In fact, until 1961, white litigants in the United States District Courts never had to ponder the subtle issue which defendants now raise, because no President had ever appointed a black as a United States District Judge. If blacks could accept the fact of their manifest absence from the federal judicial process for almost two centuries, the plain truth is that white litigants are now going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations. (177)
And so it is today -- for Jews as well as Blacks. There are people who are furious that modern Jews won't accept their proper place as powerless and dispossessed, and display an "unholy glee" at the thought of forcibly returning them to that position. I cannot say descriptively whether they will succeed, but I do know the moral argument is dead wrong.** Non-Jews are going to have to accept the fact that Jews will sometimes be in positions of authority, and sometimes will be tasked with making decisions that others are bound to accept.
* This, more than anything else, represents the diminution of the unjust power Whites held over Blacks; as power, Carol Gilligan once wrote, means "you can opt not to listen. And you can do so with impunity." Feminist Discourse, Moral Values, and the Law – A Conversation: The 1984 James McCormick Mitchell Lecture, 34 Buff. L. Rev. 11, 62 (1985) (Isabel Marcus and Paul J. Spiegelman, moderators; Ellen C. DuBois, Marx C. Dunlap, Carol J. Gilligan, Catherine A. MacKinnon, and Carrie Menkel-Meadow, participants).
** This is distinct from conspiratorial accounts by which the Jews (or "Zionists") control the world and are responsible for all (evil) global decisions. Persons who hold such views are delusional, anti-Semitic and dangerous, but one thing you can say for them is that they are only factually challenged -- were all the things they believed actually true (that Jews are poisoning vaccines or abducting Haitian children for organs or whatever it is we're up to today), they would be, in fact, bad things.
The people I am talking about would rarely stoop so low as to believe in any global Zionist conspiracies (unfortunately, sometimes they do flirt with such beliefs when their talk about The Israel Lobby stretches too far into hyperbole). But in some ways, their beliefs are more pernicious. They are not upset that the Jews control the world; they are upset at the prospect that Jews control anything; a slice of land, an organization, a political movement, a lobbying committee -- whatever. Any body that they cannot not ignore with impunity -- any body that they don't have power over (to use Gilligan's framing) -- is a body that cannot justly be in the hands of Jews. Because that would mean Jews are no longer purely in a position of subservience. And that is unacceptable.
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