This week, the Supreme Court heard arguments on a case regarding affirmative action at the University of Texas. The university faced tough questions from the justices. The Court could decide to end affirmative action in college admissions and beyond. And that’s why our special election feature, “The Choice,” focuses this week on the Supreme Court. In “The Choice,” we look at the positions of President Barack Obama and Mitt Romney on issues of importance to all Americans, but especially African-Americans.
One of the most important and long-lasting decisions made by the President of the United States is who he appoints to the Supreme Court. I this week’s segment we break down the President Obama and Mitt Romney’s possible picks for the High Court.
MR. MARTIN: This week, the Supreme Court heard arguments on a case regarding affirmative action at the University of Texas. The university faced tough questions from the justices. The Court could decide to end affirmative action in college admissions and beyond. And that’s why our special election feature, “The Choice,” focuses this week on the Supreme Court. In “The Choice,” we look at the positions of President Barack Obama and Mitt Romney on issues of importance to all Americans, but especially African-Americans.
One of the most important and long-lasting decisions made by the President of the United States is who he appoints to the Supreme Court. Now, these appointments have a powerful effect on our daily lives, often for generations after a president has left office. Without important rulings like the Supreme Court’s 1954 decision in Brown vs. The Board of Education, school desegregation might have taken another ten or 20 years to be implemented. The Supreme Court has ruled against hiring practices that discriminate against minorities and has upheld affirmative action programs in college admissions – at least up to now. In the next two years, the Supreme Court is likely to rule on, as we said, affirmative action, sections of the Voting Rights Act of 1965, voter I.D., gay marriage and abortion rights.
The Court is evenly divided between conservatives and liberals, with Justice Anthony Kennedy – who is a conservative – often the deciding vote. The next president, with one or two appointments, will swing the Court one way or the other for years to come. Now, Supreme Court justices are appointed for life, and the four oldest and most likely to leave the Court in the next four years are:
• Justice Ruth Bader Ginsburg, who is 79 and a liberal who has battled cancer in
• Antonin Scalia. He is 76 and a conservative;
• Justice Anthony Kennedy. He is 76 and obviously more conservative than
• Stephen Breyer. He is 74 and also a liberal.
So, what kind of nominees for the Supreme Court are we likely to get from Mitt Romney? He states it very plainly on his website. Quote: “As President, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas and Alito.” Those are the four most conservative justices on the Court today.
What about President Barack Obama? To determine what he may do in the future, it is instructive to look at the past. We have the two women he has put on the Court thus far, Justice Sonia Sotomayor and Justice Elena Kagan. While they are clearly on the liberal side, the President has faced criticism from African-Americans for not appointing a Black judge, but pacifi- — but – but specifically, a Black woman; and also from progressives, who see Justices Kagan and Sotomayor as not liberal enough.
On the lower courts, the President, according to “The New York Times,” “…has appointed a higher percentage of women and members of minority groups than any predecessor.”
Here to dig into this issue are Dr. Paul Butler, a law professor at Georgetown University and “Washington Watch” regular Dr. Chris Metzler, [a] political scientist at Georgetown University.
Well, gentlemen, welcome to the show.
And, Paul, no pocket square. Don’t make that mistake next time.
DR. PAUL BUTLER: My bad.
MR. MARTIN: [Chuckles.]
DR. CHRIS METZLER: [Chuckles.]
DR. BUTLER: I’m sorry. [Chuckles.]
MR. MARTIN: [I?] always do that.
All right. Let – let’s get right into it.
DR. BUTLER: Yeah.
MR. MARTIN: [The] Supreme Court – extremely vital, but what’s interesting is it’s rare that a Supreme Court becomes a talking point in an election, even though it’s so critical.
DR. BUTLER: I’m so glad you’re doing this program, Roland, because the concern is that Romney likes these radical conservative activists who don’t respect precedent, don’t look at the rule of law. If they think they can get the five votes, they’ll do whatever they can to accomplish their conservative agenda, including calling corporations people, saying it’s okay for states to put women in jail when they want to have an abortion. We don’t even have to get to gay marriage. Scalia thinks that states should be able to punish people for having gay sex. So, we really are talking about a far-right-wing agenda way out of the mainstream.
MR. MARTIN: Chris, I can tell you disagree.
DR. METZLER: [Chuckles.] Yeah, fundamentally. I – I – I don’t know that there’s any evidence that, in fact, Romney likes those kinds of justices. I think if we look at someone like –
MR. MARTIN: But, Chris, he did say on his website, though –
DR. METZLER: — yeah, well –
MR. MARTIN: — he will appoint justices “in the mold of” Roberts, Scalia, Thomas. I mean the four conservative justices.
DR. METZLER: — yeah, he did say that, but I don’t necessarily equate conservative with radical, as – Paul, as you seem to have just done in – in what you said earlier. I think for – from Romney’s standpoint, the issue is looking at strict constructionists and people who are going to look at the letter of the law, who are going to look at precedent and interpret it correctly. I’m not sure that they necessarily will overturn precedent willy-nilly.
I think if there is a new case that’s called up, and – so, for example, the affirmative action case, the interesting thing for me is what it signals. It seems to me it signals that the Court is willing to overturn precedent in that particular case because of the fact that the term “critical mass” is such a nebulous term.
MR. MARTIN: Now, again, that’s a – that’s a[n] issue that folks were talking about this week. And, look. I’m born and raised in Texas. I’m very familiar with how affirmative action has been used in Texas, and I’m s- — it’s still interesting to me, though, the young lady who is suing. I mean she is making the assumption that, oh, she didn’t get in because she’s White, when the University of Texas said, based upon the criteria that we have for the second category – because she wasn’t in the top 10 percent – she said she still wouldn’t ’ve got[ten] in; and, in fact, other White students got in, but she simply assumed, “Oh, I didn’t get in because, frankly, some Blacks and Hispanics got in and not me.”
DR. BUTLER: Yeah. So, you know, it – it’s kind of hating that we see sometimes from students when they don’t get into these elite institutions. They want to blame affirmative action.
We know affirmative action is about choosing among the qualified. There’re way more qualified people who [want to] go to a great school like University of Texas than there are spaces, so schools look at stuff like, you know, whether you’ve been to Paris; whether you grew up in Tennessee; whether your parents went to the school; and also your race and ethnicity. ’Cause as professors, we know that people learn better when there’re a whole bunch of different kinds of people in the classroom. So, that’s all affirmative action is doing – is trying to give especially African-Americans and Latinos a seat at the table.
MR. MARTIN: Chris, this is critical because the ruling doesn’t – well, I mean will not just apply to public universities.
OFF CAMERA: ’S right.
MR. MARTIN: It will also have an impact on private universities as well.
DR. METZLER: Sure.
MR. MARTIN: As –
DR. METZLER: Yeah –
MR. MARTIN: — as – if it’s overturned.
DR. METZLER: — yeah, if it’s overturned, it – it – it absolutely will. And – and I would even say that it goes so far as probably to have an effect on affirmative action in employment. So, I think it has far-reaching implications, without question.
DR. BUTLER: And it would devastate the middle class, which is why the Fortune 500 – most of the companies – filed brief[s] in support of affirmative action. The military, including General Powell, say we need diversity to keep our country safe. So, it’s an economic issue. You know, I’m not just – [it’s] not just theory for me. I’m a beneficiary. I wouldn’t ’ve gotten into Yale College or Harvard Law School without affirmative action. I’m proud to say that it’s made a difference in my life and the lives of so many other African-Americans, including people you may have hear of, like Barack Obama and Michelle Obama.
MR. MARTIN: Now, let’s also expand this. When we talk –
DR. BUTLER: Sure.
MR. MARTIN: — about it, I mean affirmative action is one issue. But when you look at the Courts, what has also happened when we have these hearings [is] we basically have these stealth judges, where both parties are picking folks who essentially have not much of a track record, because the hearings are so contentious. Is that troubling for the future of this country?
DR. BUTLER: I think so. When you hear somebody like Clarence Thomas, who said his – during his hearings he’d never had a – [chuckles] – conversation about Roe vs. Wade; he didn’t have [an] opinion on it – come on. I mean give me a break. Do we want people who almost have to be misleading in order to get on the Court?
So, I would like to see hearings that are a lot more substantive.
DR. METZLER: Well, I – I’d like to see hearings that are a lot more substantive; but that also requires that, in fact, we have a process of selecting judges that works. So, here’s the fundamental problem. [The] fundamental problem is if we have a more substantative [sic – phonetic] hearing, how many justices – or, potential justices are we going to get through? Because for confirmation purposes, this whole idea of one person simply being able to filibuster a justice presents a problem.
So, yeah. I think it is a fundamental problem for this country, but I don’t think we can solve it simply by having more robust hearings. What we also have to do is look at this process by which judges are confirmed and ask the question whether this is the best confirmation process. To me, this whole idea of advice [sic] and consent in such a contentious political environment –
MR. MARTIN: Right.
DR. METZLER: — has gone above and beyond what it –
MR. MARTIN: I also think –
DR. METZLER: — is supposed to be.
MR. MARTIN: — it’s offensive when I look at what happens in the Senate when they are delaying the other appointments –
DR. METZLER: Exactly.
MR. MARTIN: — in lower courts. Democrats have done it – and Republicans.
DR. METZLER: And Repu- — yeah.
MR. MARTIN: The President – this is what happens when you win. You get that right.
DR. METZLER: Yeah.
MR. MARTIN: And I don’t believe any federal judge or any appointee should be waiting longer than six months to actually get a[n] up [or] down vote.
Paul, Chris, I certainly appreciate it. Thanks a bunch.
DR. METZLER: Thank you.
DR. BUTLER: It’s been great to be here.