The Politics of Being First
From Marshall to Sotomayor: how the high-court nominations game has (and hasn't) changed.
After four exhausting days of testimony, Sonia Sotomayor finally exhaled. Thursday night, she retreated to the home of a former law clerk in Alexandria, Va., where, surrounded by friends and family, she let others, for the most part, do the talking. Thomas Butler, a paper-handler foreman for The New York Times, met Sotomayor and his future wife, Margarite, when both girls were juniors at Cardinal Spellman High School. Sotomayor's friends, he observed, were doing what they had always done: gathering around her to quietly lend their support. Butler, whose oldest son and namesake is Sotomayor's godchild, had brought his family to Washington to stand with her during this joyful yet tense and grueling week. And like many others across America, Butler struggled to put her ascension into context. "I don't think we'll see as much history in the next decade as we have seen this past year. And it's all positive," he said.
It's impossible to know, of course, how much history the decade has yet to unveil. But what is clear is that Sotomayor's hearings marked yet another important milestone in the modern evolution of the United States. Sotomayor was only the third person of color and the third woman to face a confirmation hearing for the Supreme Court. And she was the first person to be both—a fact not lost on the multitude (upwards of 2,000 people, according to Senate Judiciary chair Patrick Leahy) that crowded into the hearing room during her four days of testimony.
Like any Supreme Court confirmation hearing, this most recent one was an occasion for reflecting on the big issues facing the court. But because Sotomayor would be America's first Latina justice, it was also a time for taking stock of how far the country has come since Thurgood Marshall appeared before the committee seeking to become America's first black justice.
In virtually every respect, Sotomayor's questioners were very different from the ones who faced Marshall. That committee's sole remaining member, Edward Kennedy, left the panel at the end of last year. And it is not just the committee's membership that has changed. When Marshall testified, in July 1967, America's cities were in flames. The day before his hearings began, riots had broken out in Newark, N.J. In the three years preceding his appearance, America had grown accustomed to violent eruptions in its black communities. And as Northern cities burned, the old lions of the South fought the desegregation that the Supreme Court had told them was coming.
James Eastland, a Mississippi cotton farmer and avowed white supremacist, was one of those old lions. He was also the chair of the Judiciary Committee. And he was joined on that body by Strom Thurmond of South Carolina and John McClellan of Arkansas.
To those Southern senators, Marshall was not just an accomplished black lawyer but an enemy. As director-counsel of the NAACP Legal Defense and Educational Fund, he had led the fight for school desegregation—a battle that, in the eyes of many Southerners, threatened to destroy the Southern way of life. Marshall had left the NAACP in 1961 to become an appeals-court judge (sitting on the U.S. Court of Appeals for the Second Circuit, where Sotomayor would serve several decades later); he had left that court in 1965 to become solicitor general under Lyndon B. Johnson, who nominated Marshall to the high court.
McClellan set the tone during the first minutes of testimony with questions about the "reign of lawlessness and chaos" sweeping the country, and Eastland demanded to know what Marshall intended to do about it. At one point Eastland inquired of Marshall, "Are you prejudiced against white people in the South?" Thurmond wanted to know whether the Constitution permitted shooting rioters on sight. He also subjected Marshall to a detailed cross-examination on slave codes, involuntary servitude, and other matters related to slavery. And he quoted an Ohio congressman who had observed in 1850 that "no sane man ever seriously proposed political equality to all, for the reason that it is impossible."
The committee had its friendly voices, too, including Kennedy. But the Southern senators were clearly not happy with the man Johnson had put before them. Those questioning Sotomayor could not have been more different. Democrat and Republican alike, they went out of their way to praise her qualifications and congratulate her on her personal journey. And they paid her the same deference they had previously paid GOP nominees John Roberts and Samuel Alito when they refused to address, in any substance, what they would do once confirmed.
But the Republican senators also made clear that they were bothered by the nominee's efforts on behalf of ethnic minorities; they wondered whether she had crossed a line. Richard Durbin, Democrat from Illinois, was moved to wonder aloud what that meant. With Roberts and Alito, said Durbin, "the questioning really came to this central point: 'Do you as a white male … have sensitivity to those unlike yourself—minorities, disadvantaged people?' … In this case, where we have a minority woman seeking a position on the Supreme Court, it seems the question is, 'Are you going to go too far on the side of minorities and not really use the law in a fair fashion?' "
In Sotomayor's case, many of the questions arose not just from her minority status but from her speeches and past membership on the board of an organization that actively promoted its vision of equality for Latinos. And the questions led some to speculate about how she might have fared had she actually litigated for the Puerto Rican Legal Defense and Education Fund instead of merely having sat on its board. Theodore Shaw, a past head of the NAACP-LDF who appeared as a witness in support of Sotomayor, believes that no one who runs such an organization could be confirmed in today's politically polarized environment—that a modern-day Thurgood Marshall, in other words, would never make it out of committee. It's hard to know whether Shaw is right; but it is sobering to think that, 42 years after Marshall's confirmation, and even as we celebrate a new American age, old questions about identity politics and same-group bias continue to dominate the debate.
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Ellis Cose, author, columnist and contributing editor (since 1993) for Newsweek magazine and former chairman of the editorial board and editorial page editor of the New York Daily News, began his journalism career as a weekly columnist for the Chicago Sun-Times—becoming, at the age of 19, the youngest editorial page columnist ever employed by a major Chicago daily. Cose, who is also an independent radio producer, is a popular campus lecturer and public speaker.
In addition to serving as a columnist, editor and national correspondent for the Chicago Sun-Times, Cose has been a contributor and press critic for Time magazine, president and chief executive officer of the Institute for Journalism Education, chief writer on management and workplace issues for USA Today (where he has also served as an occasional columnist and member of the board of contributors) and a member of the editorial board of the Detroit Free Press. He has also been a fellow at the Gannett Center for Media Studies at Columbia University, at the National Research Council/National Academy of Sciences, a senior fellow and director of energy policy studies at the Washington-based Joint Center for Political Studies, and a consultant to the Ford and Rockefeller Foundations.
Cose's Bone to Pick: On Forgiveness, Reconciliation, Reparation and Revenge, was published by Atria (a Simon and Schuster imprint) in April 2004. The book is a wide-ranging look at a number of societies—the United States, Ghana, South Africa, East Timor, and Peru among them—and their ways of coping with cruelty and pain. The Washington Post had this to say: "The complex questions surrounding 'forgiveness, reconciliation, reparation, and revenge' probably require a scholarship of jurisprudence, philosophy, psychology, history and literature. This is the kind of ambitious enterprise that the world's great religions deal with. But Cose meets the challenge, and Bone to Pick ranges over centuries of contested histories, across five continents, spinning individual tragedies in and out of collective traumas, seeking the nature of 'forgiveness, albeit as a proxy for a larger set of values.' … The truth may be a prized (and politicized) commodity in the quest for social justice, but as Cose observes, quoting Czech novelist Milan Kundera, 'The struggle of man against power is the struggle of memory against forgetting.' Bone to Pick is a timely reminder of that axiom and a useful addition to the canon of that struggle."
Cose's The Envy of the World, an in-depth essay on the state of black men in America, was published by Washington Square Press (an imprint of Simon and Schuster) in 2002 and has appeared on several best-seller lists, including the Essence magazine list, where it was number one. Newsweek featured the book on its cover and National Public Radio produced a special a program based on it. Kirkus Reviews called The Envy of the World, "A slender volume with a substantial and significant message." The Washington Post described it as "lucid, eloquent and deeply personal book." The Chicago Tribune called its author "a gifted, rhapsodic essayist." "Cose charts both an urgently argued history of black masculinity and a moving and nuanced snapshot of where it is now," declared Publishers' Weekly. The paperback edition was published in January 2003.
In May 2004 the Rockefeller Foundation issued Beyond Brown v. Board: The Final Battle for Excellence in American Education—a major report authored by Cose on the legacy of the historic Brown v. Board of Education school desegregation decision and the current challenges facing American educators. The report was the basis of a Newsweek cover feature and for a David Broder column and other stories in the national press. In November 2006, the Institute for Justice and Journalism at USC's Annenberg School published Cose's Killing Affirmative Action: Would ending it really result in a better, more perfect Union? That report, featured in several newspaper and in Newsweek magazine, examined California's 10-year experience living with Proposition 209, the measure that ended affirmative action in the public sector in California.
Cose's best-selling The Rage of a Privileged Class, a book-length essay on race in America, was published by HarperCollins in January 1994. It was featured as a Newsweek cover story and described by The New York Times Book Review as a "disciplined, graceful exposition of a neglected aspect of the subject of race in America." His A Man's World (published by HarperCollins in June 1995), was featured in a front page review in The New York Times Book Review. The Washington Post called it "a valuable, cogent and well-written contribution to an enormously complex subject."
Color-Blind: Seeing Beyond Race in a Race-Obsessed World (published in January 1997 and also excerpted in Newsweek) explored America's continuing obsession with race. The New York Times Book Review called it "a book this country desperately needs, one with genuine healing potential," and included Color-Blind among its best book of the year recommendations for 1997. Cose edited an essay collection entitled The Darden Dilemma published by HarperCollins in March 1997. His debut novel, The Best Defense, was published by HarperCollins in September 1998 ("a formidable first novel...crisp, fast-paced and engaging. In a genre glutted with lightweight fare, The Best Defense reaches higher"— The Seattle Times).
Cose is also the author of A Nation of Strangers, a history of American immigration, published by William Morrow and Co. in 1992 and of The Press, published by Morrow in 1989. He is the author of Energy and the Urban Crisis (1979) and the editor of Energy and Equity: Some Social Concerns (1978), both published by the Joint Center for Political Studies. He also wrote The Rebirth of Community Power, published by Westview Press: 1983.
At the Institute for Journalism Education (at the University of California, Berkeley), Cose designed and directed a widely quoted study on journalism careers published by IJE: The Quiet Crisis: Minority Journalists and Newsroom Opportunity (1985). He also instituted and served as inaugural director of IJE's Management Training Center at Northwestern University.
In his capacity as president of Ellis Cose, Inc. Cose has produced, written and hosted the pilot for a multimedia documentary series: "Against the Odds." The radio project (which has received funding from the Ford Foundation and will be distributed by Public Radio International) profiles individuals who have overcome tremendous adversity. It aspires to provide continuing and better coverage—in public radio but also on the web and in other media, including print—of people and communities often relegated to the margins of society. It also aims to stimulate thinking on how they, and their respective societies, can overcome that marginalization. The pilot focuses on a young man from a refugee camp in northern Kenya who, studying by the light of a rechargeable lamp, managed to get himself into Princeton University.
Cose has appeared on The Today Show, Nightline, Dateline, ABC Evening News, Good Morning America, the PBS "Time to Choose" election special, Charlie Rose, CNN's Talk Back Live, and a variety of other nationally televised and local programs. He has been interviewed for British, Brazilian and Canadian television. He is also a judge for the New York Public Library Helen Bernstein Book Award for Excellence in Journalism. Cose has received fellowships or individual grants from the Ford Foundation, The Andrew Mellon Foundation, the Rockefeller Foundation, the Aspen Institute for Humanistic Studies, and numerous journalism awards—including the University of Missouri medal for career excellence and distinguished service in journalism, two Clarion awards, and four National Association of Black Journalists first place awards. He was also named the 2002 winner of the New York Association of Black Journalists' lifetime achievement award, winner of the 2003 award for best magazine feature from the National Association of Black Journalists as well as the winner of two New York Association of Black Journalists' first place 2003 awards for commentary and magazine features. In 2004 Cose was named the first recipient of the newly inaugurated annual Vision Award from the Maynard Institute for Journalism Education. In 2006 he won a Unity award for commentary and also shared in a first place award from the Society of Professional Journalists.
A Chicago native, Cose holds a master's degree in Science, Technology and Public Policy from George Washington University. He is married to Lee Llambelis, former legal director for the Puerto Rican Legal Defense and Education Fund and current director of intergovernmental relations for the Attorney General of New York. He has a daughter, Elisa Maria.
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