Tag Archives: U.S. Supreme Court

It is High Time for a Black Woman on the High Court

By Dr. Pamela D. Reed

“Make me do it.”
-Barack Hussein Obama

pamela-reed08The relevance of the above challenge issued by then-Senator Barack Obama will soon become obvious.

For now, let me first congratulate Judge Sonia Sotomayor, President Obama’s nominee for the soon-to-be vacant seat of retiring high court Associate Justice David Souter.

Obama’s historic nomination of the first Latina to the Supreme Court of the United States (SCOTUS) comes on the heels of a months-long full court press by Hispanic organizationslike the Puerto Rican Legal Defense & Education Fund and the Mexican American Legal Defense & Education Fund, not to mention Women’s groups, all advocating for just such a groundbreaking pick.

No sooner than it was determined that Hispanics accounted for 7.4 percent of the 131 million people who voted in November–of which 67 percent cast their votes for the Obama-Biden ticket–the Hispanic judicial lobby moved into high gear.

Mind you, these numbers pale in comparison to African Americans who comprised a record 12.1 percent of the total vote, 95 percent of whom voted for Obama.

But who’s counting, right?

Ramona Romero, Hispanic National Bar Association (HNBA) president, certainly was. Almost immediately, the HNBA launched the Hispanic Appointments Project, and she reached out to President-elect Obama, only 10 days after the election–and months before he took office.

“The presence of a Latino or Latina at the conference table could add a needed ‘special voice’ to the Supreme Court’s deliberations and decisions– a voice that can speak about the law as it affects U.S. Hispanics with the authority that only firsthand knowledge can provide,” she wrote.

In other words, they “made” him do it…and good for them (and hopefully for all who would otherwise be marginalized judicially).

Of course, Team Obama insists that politics did not factor into the Sotomayor nomination, and that the president simply–organically– chose “the most qualified person for the job.” And, in all fairness, President Obama might very well have made the same choice, absent the very public lobbying effort.

But since Hispanics left nothing to chance, we’ll never know, will we?

Whatever the case–assuming that Sotomayor is confirmed to the SCOTUS–there will now be two representatives of the female perspective on that august judicial body, and one of the Hispanic. In my view, this is a beautiful thing.

What is profoundly problematic, however, is the fact that there is still not one solitary Black advocate.

Indeed, this is a glaring and unacceptable omission on the high court. Sure, there’s Clarence Thomas, but, in every way that matters, his is not a “Black seat.”

There, I said it.

I mean, we all know that his has been the deciding vote in a number of decisions that have all but wiped out affirmative action and other racial gains made during the tenure of Thurgood Marshall, the first African American to sit on the SCOTUS. (And isn’t it just the cruelest of ironies that Thomas was the Sr. Bush’s choice to replace Marshall, the civil rights lion?)

It is as Romero said, “being Hispanic doesn’t always mean that you are grounded in the culture.”

By the same token, and for all intents and purposes, Clarence Thomas should not count in the “minority” tally on the Supreme Court, as he has shown no evidence of being willing or able to articulate–or appreciate, even– the predominant African American world view, shaped by centuries of enslavement, Jim Crow and continuing racial discrimination.

And am I the only one who finds it troublesome that, of the four widely reported finalists for the open SCOTUS seat–all women, three of whom were White–there was not one African American among the elite group?

Not one.

This is all the more vexing when one considers that, according to a Pew Research Center report, “overall, among all racial, ethnic and gender groups, Black women had the highest voter turnout rate in November’s election [68.8 percent]–a first.”

So, are we to assume that there are no “qualified” African American female jurists worthy of even symbolic consideration for the Supreme Court? (And we are way beyond symbolism at this point.)

What about the Honorable Ojetta Rogeriee Thompson, the 57-year-old Rhode Island Superior Court Justice, who–in April–was recommended by both Rhode Island senators for the First Circuit of the U.S. Court of Appeals?

Then there is the Honorable Ann Claire Williams, the 59 year-old U.S. Seventh Circuit Appellate Judge and globally acclaimed legal scholar. Among her many public service efforts, Judge Williams lead and taught at the first Kenyan Women’s Trial Advocacy Program for domestic violence attorneys. Williams has also been a prosecutor and faculty member at both Northwestern and John Marshall Schools of Law.

Of course, President Obama knows of these and many other imminently qualified Black female esquires worthy of elevation to the high court-including several law school deans. The question is: Why did the Obama Administration not even float any African American names?

Could it be because Black advocacy groups didn’t “make” him?

After all– when asked if he would be able to forge a lasting peace in the Middle East–Obama himself advised this very course of action to the questioner at a presidential campaign rally. Syndicated columnist Amy Goodman recounts this story in her commentary “Make Obama Keep his Promises.”

Obama is said to have repeated the famous story of how President Franklin Delano Roosevelt–upon hearing A. Philip Randolph’s assessment of the plight of Black America and what corrective actions were needed–reportedly issued this very same challenge to the civil rights legend.

Specifically, FDR reportedly challenged Randolph with this call to arms: “I’ve heard everything you’ve said tonight…and I agree with everything that you’ve said, including my capacity to be able to right many of these wrongs and to use my power and the bully pulpit… But I would ask one thing of you…and that is, go out and make me do it.”

The presidents’ words echo and confirm Frederick Douglass’ learned declaration of almost a century earlier: “Power concedes nothing without demand.”

African Americans would do well to remember these historic lessons during the presidency of Barack Obama–along with the contemporary counsel of Sandra Finley, President and CEO of the League of Black Women, in her article “The League of Black Women’s Role in President Obama’s Administration: Homecoming.”
“You’ve watched this amazing election unfold for two years, don’t blink now,” Finley wrote. “The President-elect has promised to talk directly to you. Pay attention. Call, email and write your legislators. Tell them exactly how you want them to vote on funding health care, education, and your jobs in this economy.”

I would add that we must also make our voices heard with regard to the changing composition of the Supreme Court. Otherwise, we will emerge from the Obama era with Clarence Thomas still the lone Black face among the nine.

And if we were to sit by mutely and idly, allowing this miscarriage of justice to happen, we would deserve it. But, in that event, at least we would still have our “I was there” buttons, our Obama calendars/posters, and our J. Crew cardigan twin sets to show to our children and grandchildren.

What I am trying to say here is that African American organizations, particularly women’s, must get past the novelty of President Barack Hussein Obama, Black Man. Only then will we begin to place collective expectations on him, just as all valued political constituencies do in the American body politic.

As Finley wrote, Black women, have “worked together to help lift and elect Barack Obama to the highest office in the land.” Yes, we have done the heavy lifting, which is nothing new.

Zora Neale Hurston observed, in her classic novel Their Eyes were Watching God, that the Black woman has historically been “de mule uh de world.”

Well, I say, no more. I agree with Finley: “This is our moment too.” In other words, it is high time for a Black woman to sit on the high court.

And this is not to dismiss the fact that President Obama has numerous highly visible, highly placed Black women in his administration, like senior adviser, Valerie Jarrett, United Nations Ambassador, Dr. Susan Rice, or Desiree Rogers, White House social secretary, among others. Without question, these are all very important appointments, many of them firsts. For this, he should be applauded.

But the Supreme Court is a horse of another color.

Dr. Pamela D. Reed is a diversity consultant, cultural critic, and assistant professor of English and African-American literature at Virginia State University.

Court of the Conqueror Writes Another Legal Fiction

By J. Kēhaulani Kauanui, Ph.D.

jkauanuiOn March 31, 2009, the Supreme Court of the United States (S.C.O.T.U.S.) issued its ruling in the case of State of Hawaii v. Office of Hawaiian Affairs, et al. The state of Hawai‘i asked the high court whether or not the state has the authority to sell, exchange, or transfer 1.2 million acres of land formerly held by the Hawaiian monarchy as Crown and Government Lands. Prior to the state’s appeal to the S.C.O.T.U.S., the State Supreme Court unanimously ruled that the state should keep the land trust intact until Kanaka Maoli (indigenous Hawaiian) claims to these lands are settled, and prohibited the state from selling or otherwise disposing of the properties to private parties; it did so based on a 1993 Apology Resolution issued by Congress to the Hawaiian people. The S.C.O.T.U.S. reversed the judgment of the Hawai‘i Supreme Court and remanded the case for further proceedings with the stipulation that the outcome not be inconsistent with the U.S. Supreme Court’s opinion.

The contested land base constitutes 29 percent of the total land area of what is now known as the State of Hawaii and almost all the land claimed by the State as “public lands.” These lands were unilaterally claimed by the U.S. federal government when it unilaterally annexed the Hawaiian Islands through a Joint Resolution by the U.S. Congress in 1898, after they had been “ceded” by the Republic of Hawai‘i, which had established itself a year after the armed and unlawful overthrow of the Hawaiian monarchy under Queen Lili‘uokalani in 1893. These are the same lands mentioned in the 1993 Apology Resolution in which Congress acknowledged and apologized for the United States’ complicity in the overthrow in violation of bilateral treaties with the Hawaiian Kingdom and international law. The Apology also affirmed, “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

The S.C.O.T.U.S. ruled as they did to legitimize the theft of the Hawaiian Islands through the 1893 Overthrow of the Hawaiian Kingdom and the unilateral annexation of 1898 through the Newlands Resolution passed by Congress. The Court claims that Pursuant to the Newlands Resolution, the Republic of Hawaii “ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind” and provided that provided that all “property and rights” in the so-called ceded lands are “vested in the United States of America.” This is a legal fiction to cover up the fact that the U.S. government accepted the stolen lands from the Republic of Hawaii government that confiscated these lands after the overthrow of the Hawaiian Kingdom. The Republic of Hawaii could not have ceded these lands in “absolute fee” to the United States because they were stolen. The U.S. government accepted the stolen goods and cannot prove title because they were stolen without Hawaiian people’s consent and without compensation.

The ruling serves to shore up the U.S. government’s rampant criminality and to tie up all loose threads that could implicate the USA in an international case. In other words, this is a preemptive move to foreclose the possibility of restoring the Hawaiian nation under international law. The Court insists that the Apology does not change the legal landscape or restructure the rights and obligations of the State. The ruling states, the Apology would “raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the union.” The Court further opined that “Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.”

If the Apology Resolution has no teeth in the court of the conqueror, then how is it that the Newlands Resolution that unilaterally annexed Hawai`i does? The court could not dismiss the Apology on grounds that it was a joint resolution of Congress (rather than a treaty of annexation, or even an act of Congress) because it would have to declare the Newlands Resolution impotent. Instead, the justices did some grammatical back flips and focused instead on six verbs in the preambular “whereas” clauses that made various observations about Hawaii’s history, which they found have no legal bite: acknowledges, recognizes, commends, apologizes, expresses, and urges. Of course, the Court also cited the disclaimer at the end of the Resolution—no surprise there since the U.S. government’s apology is like a “no fault” apology—carefully crafted in order to preclude restitution of the Hawaiian nation and appropriate reparations after recognizing Hawaii’s full sovereignty.

Unfortunately the trustees of the Office of Hawaiian Affairs—elected by all of Hawaii’s registered voters, not just Kanaka Maoli — were in on it. It’s important to note what is hidden in the name of the case that went before the S.C.O.T.U.S., State of Hawaii v. Office of Hawaiian Affairs, et al., since the “et al” (meaning “and others”) includes four individual Kānaka Maoli. One of them is Dr. Jonathan Kamakawiwo‘ole Osorio—associate professor at the Kamakakūokalani Center for Hawaiian Studies, University of Hawai‘i at Mānoa, and author of Dismembering Lāhui: A History of the Hawaiian Nation to 1887. He is an original plaintiff in the case who sued the state to prevent the sale of these lands and was a defendant in the appeal to the Supreme Court. When I interviewed Osorio for my public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” he specified how his stake in the case is vastly different from the interests of the Office of Hawaiian Affairs, which is a state agency. Had the four individuals not been party to the lawsuit, one could have more easily surmised that this case involved collusion between the executive branch of the state government, and the Office of Hawaiian Affairs, which draws revenues from these lands. Indeed, when I heard part of the oral arguments before the S.C.O.T.U.S., the attorney chosen by the Office of Hawaiian Affairs, like the state attorney general, argued that the state of Hawai‘i has “perfect title” to the Hawaiian lands. Osorio’s argument, however, is clearly very different, “the United States has absolutely no title over these lands…they have no legal foundation.”

What lurks in the background of all of this is the question of a political settlement with Native Hawaiians. Currently, there is a federally driven bill before Congress that would reconstitute a “Native Hawaiian Government” under U.S. policy on Native Americans—The Hawaiian Reorganization Act of 2009, commonly referred to as the “Akaka bill” after its author U.S. Senator Daniel Akaka (D-HI). The U.S. government knows it does not have any legitimate title to these stolen lands. Hence, the only way the United States will ever be able to secure its claim is by constituting a Hawaiian governing entity to give up the claim to them in exchange for some sort of cash settlement. It is telling that Robin Puanani Danner, CEO and president of the Council for Native Hawaiian Advancement & Native Hawaiian Economic Alliance—a major driving force for passage of the Akaka bill—issued a statement right after the ruling and mentioned how the case relates to their proposal for a land claims settlement. Settlement is a sell-out, and the Akaka bill provides the legislative framework for that resolution.

Adopting this law would be yet another assault against the sovereignty of the Hawaiian Nation, which is why over a dozen grassroots Hawaiian organizations oppose it, including Hui Pu, and those that constitute the Hawaiian Independence Action Alliance: the Pro-Kanaka Maoli Independence Working Group, Ka Pakaukau, Komike Tribunal, H.O.N.I.(Hui o Na Ike), Ka Lei Maile Ali‘i Hawaiian Civic Club, Koani Foundation, ‘Ohana Koa, N.F.I.P. – Hawai‘i, Spiritual Nation of Kū – Hui Ea Council of Sovereigns, Living Nation, Settlers for Hawaiian Independence, M.A.N.A. (Movement For Aloha No Ka ‘Aina), as well as the Hawai`i Institute for Human Rights.

The crimes against the Hawaiian nation in 1893 and the ramifications of which continue to this day deserve careful scrutiny by an international court, not the court of the conqueror. Indeed, many Kanaka Maoli and other Kingdom heirs insist that the U.S. government submit its legal position to the Permanent Court of Arbitration for a fair and just resolution.

J. Kēhaulani Kauanui, Ph.D. is an Associate Professor of American Studies and Anthropology at Wesleyan University. She is the author of Hawaiian Blood: Colonialism and the Politics of Indigeneity and Sovereignty(Duke University Press, 2008). She is the producer and host of a public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” which airs on WESU, Middletown, CT and is syndicated on select Pacifica-affiliate stations. An audio archive of all the programs can be accessed online: http://www.indigenouspolitics.com.