Would a Black Judge Have Been Biased in Brown v. Board of Education?

US District Judge Vaughn Walker is the judge who issued the ruling that Prop 8, which bans same sex marriage in California, is unconstitutional. Conservatives are now claiming that he is gay (which is unconfirmed at this point) and that his gayness presents an obvious bias. Furthermore, he should have recused himself from the case because as a gay man he would have a conflict of interest in deciding a case on gay rights.

The obvious question is - would a straight man not have a bias? Prop 8 would maintain straight people's monopoly on marriage. Wouldn't a straight person have a conflict of interest in deciding a case about whether they get to have more rights than other people in society? Presumably a lot of straight people voted in California to take away the right of gay people to get married - wouldn't they be biased in favor of protecting their own rights and taking away the rights of gays in California?

How about a devoutly religious judge? If that person believes it is an abomination against God to have gay people get married, wouldn't that create an obvious bias? Should we look into how religious each judge is before we let them decide cases like this? How about Antonin Scalia, who has on many occasions talked about how deeply religious he is? Should he be recused if this case reaches the Supreme Court? Clarence Thomas? Samuel Alito? How many justices will be left to decide this case?

Now, let's think about it a different way. What if there was a black justice on the Supreme Court when they were deciding Brown v. Board of Education? Would he be biased in favor of having the same rights as white Americans? Should he have stepped down from the case because he would obviously want the same constitutional rights as any other American? Bias!!

Of course, there was a black man in the courtroom at the time. The man who was the winning attorney on Brown v. Board of Education and would later become the first ever African-American justice on the Supreme Court - Thurgood Marshall. Should the court have told him that he couldn't litigate the case because it would be biased of him to want the same rights as white people?

Should Marshall have also recused himself from every case that involved race when he was on the Supreme Court? If so, why did the white justices get to rule on those cases?

As you can see, although the bias argument might seem appealing at first blush to some, it is quite absurd when you break it down. If you're not already convinced, let me give you one last example. What if California decided to take away women's right to vote - could a female justice not rule on that case because they would be biased in favor of keeping their own constitutional rights?

But you don't have to worry about these absurd right-wing arguments for much longer because conservatives will lose this battle, as they have lost every right civil rights battle they have ever fought in this country. As I explain here:

And as far as whether being gay is an abomination and ruins the institution of marriage, I want you to think about this:

As Judge Walker meticulously explained, there are no rational arguments in favor of denying gay Americans the same rights that straight Americans enjoy. Only irrational ones, like the one that says that it is biased for a gay man in this country to ask for equal protection under the law.

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Would a Black Judge Have Been Biased in Brown v. Board of Education?

US District Judge Vaughn Walker is the judge who issued the ruling that Prop 8, which bans same sex marriage in California, is unconstitutional. Conservatives are now claiming that he is gay (which is unconfirmed at this point) and that his gayness presents an obvious bias. Furthermore, he should have recused himself from the case because as a gay man he would have a conflict of interest in deciding a case on gay rights.

The obvious question is - would a straight man not have a bias? Prop 8 would maintain straight people's monopoly on marriage. Wouldn't a straight person have a conflict of interest in deciding a case about whether they get to have more rights than other people in society? Presumably a lot of straight people voted in California to take away the right of gay people to get married - wouldn't they be biased in favor of protecting their own rights and taking away the rights of gays in California?

How about a devoutly religious judge? If that person believes it is an abomination against God to have gay people get married, wouldn't that create an obvious bias? Should we look into how religious each judge is before we let them decide cases like this? How about Antonin Scalia, who has on many occasions talked about how deeply religious he is? Should he be recused if this case reaches the Supreme Court? Clarence Thomas? Samuel Alito? How many justices will be left to decide this case?

Now, let's think about it a different way. What if there was a black justice on the Supreme Court when they were deciding Brown v. Board of Education? Would he be biased in favor of having the same rights as white Americans? Should he have stepped down from the case because he would obviously want the same constitutional rights as any other American? Bias!!

Of course, there was a black man in the courtroom at the time. The man who was the winning attorney on Brown v. Board of Education and would later become the first ever African-American justice on the Supreme Court - Thurgood Marshall. Should the court have told him that he couldn't litigate the case because it would be biased of him to want the same rights as white people?

Should Marshall have also recused himself from every case that involved race when he was on the Supreme Court? If so, why did the white justices get to rule on those cases?

As you can see, although the bias argument might seem appealing at first blush to some, it is quite absurd when you break it down. If you're not already convinced, let me give you one last example. What if California decided to take away women's right to vote - could a female justice not rule on that case because they would be biased in favor of keeping their own constitutional rights?

But you don't have to worry about these absurd right-wing arguments for much longer because conservatives will lose this battle, as they have lost every right civil rights battle they have ever fought in this country. As I explain here:

And as far as whether being gay is an abomination and ruins the institution of marriage, I want you to think about this:

As Judge Walker meticulously explained, there are no rational arguments in favor of denying gay Americans the same rights that straight Americans enjoy. Only irrational ones, like the one that says that it is biased for a gay man in this country to ask for equal protection under the law.

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Moses & The Constitution

Today's Constitution is a realistic document of freedom only because of several corrective amendments. Those amendments speak to a sense of decency and fairness that I and other Blacks cherish. – Thurgood Marshall

The one thing that troubles me about many on the right and the left is both sides belief that the Constitution is untouchable and engraved in stone. The American Constitution despite the proclamations of tea-baggers was not written by the hand of God Almighty, instead it was written by a group of 18th century men with the limited knowledge of the world and history that they had. I will grant strict constructionists the fact that many of the concepts they enshrined in the constitution were ahead of their time, but let’s not forget all of the concepts that they neglected in the document or perverted due to their prejudices. All “men” were created equal so long as they were men, white, and property owners.

I believe that instead of looking at the constitution as absolute and complete we need to view it as a living, breathing document. A document whose basic tenets we hold untouchable but one where we also recognize that it can be amended to include those situations that men of the 18th century would never have imagined would exist. How could we expect them too, unless we believe that it was written by the hand of God a position which I personally do not subscribe to? Students of history can attest to the fact that the complexion of our country has changed dramatically and continues to change. There are those who want to cling to the America of the 18th century in the false hope that the sands of time can be stopped by the sheer will of stubbornness and ignorance.

What does it mean to be a strict constructionist? Does it mean that you believe that the constitution was complete as originally written or does it mean it was complete after certain amendments? I have never been sure what exactly these people believe. As a member of one of the groups who were originally left out of the constitution I find it difficult to accept the completeness of the original document. We are not the society we were in the 1700’s and we will never be again. Our society and our country are evolving and if we believe that our constitution will not have to evolve then we are laying the foundation for our demise into irrelevancy. I find it interesting that those who label themselves strict constructionists are usually those who were included in the original document and therefore believe that there is no reason to make it more inclusive.

"With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of out whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved." – Oliver Wendell Holmes

I believe that the constitution has been incorrectly interpreted in decisions like Dred Scott, the Santa Clara County decision, and even today with the recent decision to allow corporations unlimited campaign funding. These decisions have one thing in common and that is they were decided using strict constructionist views. The courts rather than applying the standards of the period they were in chose to retain the standards of the original framers complete with their prejudices and ignorance. As the President continues to fill vacancies on the court, as groups like the tea party continue to call for strict constructionist reading of the constitution, as states continue to enact draconian legislation, and as the threat of terrorism continues to loom over us it is important that as nation we define what we stand for. Do we stand for a society that is inclusive and believes in the value of all people or will we continue to claim this right only for those who look like we do?

The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy - Charles de Montesquieu

The Disputed Truth

Kathleen Falk, Madison, WI and Louis Brandeis

"They conferred, as against the Government, the right to be let alone - the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
- Justice Louis Dembitz Brandeis, (the "People's Attorney") dissenting opinion in Olmstead v. United States (1928)

Think Madison, Wisconsin, and surrounding Dane County, and you are likely to think: Progressive, civil rights and a secular culture existing peacefully with the second largest public research University in the world.

Mostly, you would be right. But there are a couple of vital exceptions: Dane County District Attorney Brian Blanchard [the best line I heard/read about him is that Blanchard should be sentenced to 30 days reading the disquisitions of Robert Jackson on prosecutorial discretion].

And secondly, an appalling effort under way to install police roadblocks, led by Dane County Executive Kathleen Falk who is dedicated to decimating the Fourth Amendment in the city named after the father of the Constitution.

The American electorate is regularly treated to examples of Democrats and liberals going along to get along with the powers that be.

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Race and the Death Penalty

Lots of folks are discussing what Barack Obama had to say about the Supreme Court's death penalty decision (and 90% of it through the prism of how this might influence the outcome of the campaign).

I thought I'd remind everyone what Justice Thurgood Marshall (NAACP counsel during the civil rights struggle and first African American on the US Supreme Court) had to say, concurring in FURMAN v. GEORGIA, 408 U.S. 238 (1972) (excerpt below, discussing the 14th Amendment implications of the death penalty):

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Diaries

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