The DISH
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Vol. 12 Issue 18…Dedicated to the Dialogue on Race…May 3, 2009
David Hackett Souter
"The
first lesson, simple as it is, is that whatever court we're in, whatever we are
doing, at the end of our task some human being is going to be affected. Some
human life is going to be changed by what we do. And, so, we had better use
every power of our minds and our hearts and our beings to get those rulings
right." David H. Souter
(1990)
Born September 17, 1939 in
In 1961, Souter graduated from
Harvard magna cum laude as a member of Phi Beta Kappa. A Rhodes Scholar, he
attended
After graduating from law school in 1966, Souter accepted a private practice
position with the firm of Orr & Reno in
In 1978, he was named an
Associate Justice of the Superior Court of New Hampshire. Souter was appointed
to the New Hampshire Supreme Court as an Associate Justice in 1983. On May 25,
1990, Souter became a Judge of the US Court of Appeals for the First Circuit.
Rudman, who had since been elected a senator, and former
Some Senate Democrats, including Ted Kennedy and John Kerry, opposed Souter's
nomination. Fearing his opposition to Roe v Wade, the National
Organization for Women held a rally outside the hearings to oppose his
selection. The NAACP urged its members to write letters to their senators
asking for Souter's defeat. Despite this opposition, Souter won a relatively
easy confirmation compared to other Republican nominees. Souter took his seat
on October 9, 1990, shortly after the Senate confirmed him by a vote of 90-9.
President Bush, Rudman and Sununu
later expressed "disappointment" about Souter's positions on the
Court. From 1990 to 1993, Souter tended to be conservative, although not as
conservative as Antonin Scalia, Clarence Thomas or William Rehnquist. The
symbolic turning point came in two 1992 cases, Planned Parenthood v. Casey,
in which Souter sided with the majority to reaffirm the essential holding in Roe
v. Wade, and Lee v. Weisman, in which Souter voted against
allowing prayer at a high school graduation ceremony.
Souter began aligning himself
more with Stephen Breyer and Ruth Bader Ginsburg on rulings. As of 1995, Souter
has sided on more occasions with the Court's most liberal justice, John Paul
Stevens, than either Breyer or Ginsburg. On the abortion issue, Souter began to
vote to override restrictions he believed in back in 1992. On death penalty
cases, worker rights cases, criminal rights cases, and other issues, Souter
began voting with the liberals in the court. So while appointed by a Republican
president and thus expected to be conservative, Souter is now considered part
of the liberal wing of the Court.
On Bush v. Gore in 2000, Souter voted and dissented along with the
three other justices, while the majority voted to end the recount, paving the
way for George W. Bush's electoral victory in
Souter currently ranks fourth in
seniority among the Court's associate justices. A lifelong bachelor, Souter
enjoys mountain climbing in
On May 1, 2009, Souter confirmed to the White House that he intends to retire
at the end of the Court's term in June, at the age of 69. (Sources: http://en.wikipedia.org, www.oyez.org/justices/david_h_souter
and http://usgovinfo.about.com)
Obama Administration Stands with Banks
By John Burl Smith
A case presently before the US
Supreme Court has the Obama administration defending discrimination against
blacks and Hispanics. Attempting to expose how big banks victimized blacks and
Hispanics during the subprime mortgage boom, former Attorney General of New
York Eliot Spitzer brought suit against major national banks, including
Citigroup, Bank of America, JPMorgan Chase, Wachovia and Wells Fargo in 2005.
Spitzer sought to investigate whether minorities were charged higher interest
rates on home mortgage loans, a practice that is prohibited under various state
and federal laws. Issuing subpoenas, Spitzer wanted access to bank books to
ascertain their criteria for lending money.
However, a federal district judge
ruled, "New York could not enforce state fair-lending laws against
national banks or their operating subsidiaries, issue subpoenas or bring
enforcement actions against them even if banks discriminated by charging blacks
and Hispanics high interest." The 2nd US Circuit Court of Appeals in
This ruling left consumers at the
mercy of the OCC and the consortium of banking companies, which sued to block
the investigation. They cited a 2004 OCC policy change that made it more
difficult for state authorities to enforce state laws against national banks.
The history of national banking, which dates back to laws passed during the
Civil War-era when national banks were created, shows that a number of Supreme
Court rulings have bolstered the regulatory powers of the OCC regarding
national banks. "Each time the court made it easier for national banks to
elude state law, preempting again and again states' enforcement and
investigative machinery," according to Seth Waxman, who represented the national
banks. He said, "The OCC has
exclusive power to enforce discrimination laws against national banks, even
when a state law is being applied."
New York Solicitor General Barbara Underwood said, "State
anti-discrimination and consumer protection laws can be enforced against
national banks by the OCC and even private parties, but not by state attorneys
general." An amicus brief filed by 49 state attorney generals that supported
Again, the Obama administration is standing with big banks against poor people
who were robbed by those behind the subprime mortgage lending scam. The federal
government has refused to investigate what happened and how big banks preyed on
unsuspecting consumers. In this case the federal government went before the
Supreme Court to help block states from investigating these institutions in an
efforts to bring culprits to justice.
This is not an abstract argument or a battle over turf. American citizens have
been victimized by greed and unscrupulous business practices and the agencies
responsible for policing and regulating them were asleep at the switch. They
were unable or unwilling to do their job and now the federal government is in
court blocking efforts to address the problem. Even worse, Congress is standing
idly by while it happens. This is reprehensible!
It is clear the banking industry
has always discriminated against black people. They financed slavery,
bankrolled the sharecropping and tenant farm era of Jim Crow segregation, as
well as enforced redling during the 1960s and 70s which reinforced poverty in
black communities. They and Wall Street maintain a glass ceiling against blacks
and Hispanics while the federal government looks the other way. Last week in
announcing the Chrysler deal, President Obama made it clear he was standing
against hedge funds and with workers but when banks are involved he is always
on the other side, standing against blacks and Hispanics.
A Bye for Bybee?
Currently
a federal judge in the 9th Circuit Court of Appeals, Jay Bybee, was one of the
lawyers that crafted the opinions justifying the Bush administration torture
policy. From 2001 to 2003, Bybee headed the Office of Legal Counsel; he signed
off on a 2002 memo authorizing in clinical detail the enhanced interrogation
tactics that he and his deputy, John Yoo, perceived as perfectly legal. These
tactics, including waterboarding and sleep depravation, are considered torture
and violate national and international laws.
Bybee was confirmed by the Senate to the Ninth Circuit Court of Appeals in
March 2003. Now, some of the Democratic senators that supported his
confirmation, wish they had known about the torture memos recently released by
the Obama administration. According to Senate Judiciary Committee Chairman
Senator Patrick Leahy (D-VT), had those memos been a part of the public record,
Bybee would not have won confirmation. Indeed, his nomination would never have received
a vote.
Senator Leahy and other Democrats
are now calling for Bybee's impeachment. But, Republicans oppose any such
action, coming to Bybee's aid with justifications for the memos, including the
notion that one must consider the period in which they were written. After the
September 11 attack, there was considerable pressure and a need to protect the
country. Then, there is the excuse offered by Senator John McCain (R-AZ). The
former presidential candidate told FOX news, "These people gave their
honest opinion even if they were wrong. So now we're supposed to investigate
them and criminalize them because of their honest opinions? You know, if you went
after every lawyer in
Basically, Republicans want to give Bybee a bye, allowing him to continue to
preside on the Ninth Circuit where he can continue rendering erroneous
opinions.
Youth and the Post-Racial Myth (Excerpt)
By Henry A. Giroux
With the election of Barack
Obama, it has been argued that not only will the social state be renewed in the
spirit and legacy of the New Deal, but that the punishing racial state and its
vast complex of disciplinary institutions will, if not come to an end, at least
be significantly reformed. From this perspective, Obama's presidency not only
represents a post-racial victory, but also signals a new space of post-racial
harmony. In assessing the Obama victory, Time Magazine columnist Joe
Klein wrote, "It is a place where the primacy of racial identity - and
this includes the old Jesse Jackson version of black racial identity - has been
replaced by the celebration of pluralism, of cross-racial synergy."
Obama won the 2008 election because he was able to mobilize 95 percent of
African-Americans, two-thirds of all Latinos and a large proportion of young
people under the age of 30. At the same time, what is generally forgotten in
the exuberance of this assessment is that the majority of white Americans voted
for the John McCain-Sarah Palin ticket. While "post-racial" may mean
less overt racism, the idea that we have moved into a post-racial period in
American history is not merely premature - it is an act of willful denial and
ignorance. Paul Ortiz puts it well in his comments on the myth of
post-racialism:
The idea that we've moved to a
post-racial period in American social history is undermined by an avalanche of
recent events. Hurricane Katrina. The US Supreme Court's dismantling of Brown
vs. Board of Education and the resegregation of American schools. The Clash of
Civilizations thesis that promotes the idea of a War against Islam. The
backlash facing immigrant workers. A grotesque prison industrial complex.
[Moreover] ... [w]hile Americans were being robbed blind and primed for yet
another bailout of the banks and investment sectors, they were treated to new
evidence from Fox News and poverty experts that the great moral threats facing
the nation were greedy union workers, black single mothers, Latino gang bangers
and illegal immigrants.
Missing from the exuberant claims that Americans are now living in a
post-racial society is the historical legacy of a neoconservative revolution,
officially launched in 1980 with the election of Ronald Reagan, and its ensuing
racialist attacks on the welfare "Queens"; Bill Clinton's cheerful
compliance in signing bills that expanded the punishing industries; and George
W. Bush's "willingness to make punishment his preferred response to social
problems." In the last 30 years, we have witnessed the emergence of
policies that have amplified the power of the racial state and expanded its
mechanisms of punishment and mass incarceration, the consequences of which are
deeply racist - even as the state and its legal apparatuses insist on their own
race neutrality.
The politics of racism has hardly disappeared from the landscape of American
culture and the institutions that support it. Poor minority kids now find
themselves on a fast track extending from school to juvenile courts to prison.
And the number of poor and minority kids, now aptly called the "recession generation"
by Dr. Irwin Redlener, president of New York City's Children's Health fund, has
increased from 13 million before the economic meltdown to an expected 17
million by the end of the year. And who are these kids? These are the kids
marginalized by race and class, who are largely seen either as a drain on the
economy or stand in the way of market freedoms, free trade, consumerism and the
whitewashed fantasies of a cleansed, Disneyfied social order. These are kids
who, not only have to fend for themselves in the face of life's tragedies, but
are also supposed to do it without being seen by the dominant society.
Excommunicated from the sphere of human concern, they have been rendered
invisible, utterly disposable, and heir to that army of socially homeless that
allegedly no longer existed in colorblind
It is worth noting that half of
the nation's black male high-school dropouts will be incarcerated - moving,
often enough, from quasi-carceral lock-down high schools to the real "lock
down" thing - at some point in their lives. These dropouts are over
represented among the one in three African American males aged sixteen- to
twenty-years old who are under one form of supervision by the US criminal
justice system: parole, probation, jail, or prison.
As the toll in human suffering increases daily, Obama and his Wall Street advisers
bail out the banks and the rich just as crucial social services for children
are being cut back, unemployment is soaring into record numbers and more and
more youth of color are disappearing into an abysmal pit of poverty, despair
and hopelessness. Raised in a blood-drenched culture of violence mediated by an
economic Darwinism that harbors a rabid disdain for the common good, poor
minority kids appear to be completely off the radar of public concern and
government compassion. And Obama, for all of his soaring poetic imagery of
unity and justice, falls flat on his face by allowing his Secretary of
Education Arnie Duncan to offer up reform policies that amount to nothing more
than another version of Bush's No Child Left Behind with its anti-union ideology
and obsessive investment in measurement and accountability schemes that strips
any talk of educational reform of any viability while turning schools into
nothing more than testing factories - policies that disproportionately punish
brown and black youth. These racially exclusionary set of policies and
institutions have become especially cruel since the beginning of the
neoconservative revolution in the 1980s, and are not poised to disappear soon
under the presidency of Barack Obama - in fact, given the current economic
crisis, they may even get worse.
To read the entire essay, visit www.truthout.org/042709A.
On Reverse Discrimination
By Dot
Since the Supreme Court's
decision in Regents of the University of California v. Bakke (1978) in which
the Court held that the use of quotas in affirmative action programs was not
permissible, but that race could be used as one of the factors considered in
choosing a diverse student body in university admissions, there have been a
number of so-called reverse discrimination cases. According to the Court's
decision in Bakke, the University of California, Davis, medical school had, by
maintaining a 16% minority quota, discriminated against Allan Bakke, the white
applicant, who had a higher grade point average than some of the minority
candidates that were admitted. As a result of the Court's decision, Bakke was
admitted to medical school and affirmative action took a giant step backwards.
Every affirmative action decision rendered, whether in hiring, promotions,
contracting or college admissions, in which a black receives or is perceived to
have gained an advantage over a white person becomes grounds for filing a
reverse discrimination lawsuit. The plaintiffs in this kind of litigation, like
Bakke, enjoy above average courtroom success. When it comes to affirmation
action, the courts' have delivered a profound message; it will maintain the
status quo for white people.
Thus, while disadvantaging blacks
was a historical social norm, accepted, expected and enforced by laws and
tradition, doing anything to disadvantage a white person to make amends is
illegal. Basically, affirmative action is dead, even though the social ill it
was created to address is alive and well. The courts, white society, in
general, and even some colored people act as though we have achieved nirvana
and become a truly "color-blind society."
Nothing could be further from the
truth. Just take a look at the racial disparities that exits in a whole host of
areas, including in higher paying jobs. Even educated blacks with college
degrees do not enjoy pay parity, far from it. According to the most recent
Census Bureau data, educated blacks earn about 78 percent of the salary of their
white counterparts.
With affirmation action dead,
there is nothing in place to address past and ongoing racial discrimination.
Moreover, when blacks seek redress of racial discrimination in court, their
cases are thrown out on judicial technicalities or the ruling issued is not in
their favor. Meanwhile, the situation is just the opposite for reverse
discrimination cases.
People's Press Conference
By Terence Courtney
On Wednesday May 6, 2009 a
coalition of Atlanta ADAPT, Atlanta Transit Riders Union, People First (Atlanta
& Georgia), DisAbility Link, Concerned Transit Rider's for Equal Access,
and Atlanta Jobs with Justice are having a People's Press Conference to educate
communities in Metro Atlanta regarding the cuts in service, fare increases and
the State of Georgia's refusal to do anything to help MARTA serve the needs of
Georgians.
We are demanding that Gov. Sonny
Purdue and state legislators rethink their position and pass the save MARTA
legislation and provide state funding for operations. The state has used GRTA
(Georgia Regional Transit Authority) to drain funds from MARTA to provide bus
service to counties surrounding
We, the residents of
Disgruntled feels: Diminished! As
discussions and the controversy over torture memos rage, it becomes
increasingly apparent that nothing will be done to those responsible for
implementing the illegal
Disgruntled
wants to know: In workplaces and homes across
Disgruntled
says: In what appears to be another assault against black children,
Lithonia's Mall at Stonecrest has imposed a weekend curfew that bars
unaccompanied teenagers from the mall on Fridays and Saturdays after 4 PM.
According to press reports, at least two
Mailbox: E-Mails, Faxes and
Telephone Calls
Email sunrisera@yahoo.com ...We're equal ..Recently,
the Obama administration made the decision to not attend the conference on
racism, Durban II. Our first "black" (sic) president must have felt
the disappoint of black and non white people in the
Email www.legitgov.org/...Spanish judge starts
Guantanamo torture probe --Judge: Guantanamo a legal "limbo" and as
such falls under universal jurisdiction, allowing him to investigate what went
on in the base 30 Apr 2009 A Spanish judge has started a criminal investigation
into suspected torture of detainees in the base at Guantanamo and said he would
target both US military personnel and those who issued their orders. Judge
Baltasar Garzon, who once tried to extradite former Chilean dictator Augusto
Pinochet, said he based his case on testimony in his court by four former
Email www.truthout.org
...Waterboarding the Rule of Law...By: Steve Weissman..Asked what he thought of
Western civilization, the nonviolent Mahatma Gandhi famously replied, "I
think it would be a good idea." Unless millions of Americans now demand
better, we can say the same of "the rule of law." What a good idea it
would have been, but - like the tooth fairy - it will not exist, not when
competing priorities get in the way. The balancing - and trimming - is well on
its way. Should a special prosecutor hold Bush, Cheney, Rice and Rumsfeld
accountable for violating the law against torture when they specifically
authorized waterboarding, sleep deprivation, stress positions and sexual
humiliation of detainees? ... Should Congress or a truth commission investigate
torture and other war crimes so they will never happen again? ...Should
Congress impeach former Deputy Attorney General Jay Bybee, now a federal
appeals court judge, for giving his superiors the legal arguments they wanted
to justify the torture they had already decided upon?...