Academic

Obama's Considerations for Judicial Appointments

By propertyprof

I wrote this post last summer.  Wish I'd posted it then, because I'd look really prescient.  Instead, I look like I'm following the leader.  Anyway, parts of it are more timely than ever--and other pieces of it look less timely.

The legal blosphere's lit up with talk of Senator Obama's potential nominations to the Supreme Court.  It's a long way from certain that there will be a President Obama, the hopes of many law profs notwithstanding.  (This is the part that looks less prescient, though I continue to believe the outcome is a long, long way from certain.  The different visions that are being put out by both candidates are pretty far apart and I think our nation is uncertain of which way it wants to go.)   But it's fun to speculate about all sorts of things.

So what of the potential candidates?  As someone who's concerned about our country's shameful history of race and issues of racial equity, I wonder what an Obama presidency will do to talk (and action) on issues of race.  And while I think my favorite candidate of those mentioned is Chief Justice Leah Sears of the Georgia Supreme Court (ok, Justice Sears is just slightly behind Pam Karlan and Bill Marshall, but she's my first pick of people who're sitting judges),  I'm not counting on seeing
a lot of African Americans in prominent positions in an Obama presidency.  Why?

Well, as Ralph Ellison long ago recognized, an African American president will have lots of considerations beyond race.   Ellison wrote in Shadow and Act that he hoped to live to see a black president; but that even if there were a black president, he would be influenced more by his American-ness than his blackness. (167)

Senator Obama's already moved away from talk of affirmative action. This may be required politically--and, heck, he's going to be running for a second term.  He can't show up in  January
2009 and go back on key commitments.   I'm thinking that an Obama presidency will take race and gender into account less often than many of his current supporters would like.

You may have noticed that there's not a lot of talk of the future of affirmative action.  I think that Obama has largely abandoned talk of race-based set asides sometime in favor of more generalized anti-poverty programs.  He's already (and wisely, from a political standpoint) thrown the reparations movement overboard.  We'll see what happens to other talk of race-based programs.

Alfred Brophy

Full post as published by The Faculty Lounge on October 20, 2008 (boomark / email).