ACSBlog

by Nicole Flatow

The “partisan intensity” surrounding the Senate confirmation process of judicial nominees “makes the judiciary look politicized when it is not” and “has to stop,” U.S. Supreme Court Justice Anthony Kennedy said during an address at the 2012 Ninth Circuit Judicial Conference in Maui.

The remarks are the latest in a string of calls to end Senate obstruction of judicial nominees from judges and legal leaders, including Chief Justice John Roberts and Justice Ruth Bader Ginsburg. Justice Kennedy also questioned the functioning of the Senate confirmation process during the 2010 Ninth Circuit conference, saying, “It's important for the public to understand that the excellence of the federal judiciary is at risk.” Two years later, Kennedy is expressing even greater alarm.

“The Constitution requires Senate confirmation,” Kennedy said this week. “The Senate is a political entity and will act in a political way and that’s quite proper. … On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process.”

By David H. Gans, Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This is a cross-post from CAC's Text & History Blog.

On Monday, Constitutional Accountability Center filed an amici curiae brief in the Supreme Court in Fisher v. University of Texas, urging the Court to reaffirm that the Fourteenth Amendment permits the sensitive use of race to foster equality in education and to uphold the University of Texas’ use of race as one factor in its holistic admissions policy. The brief is available here. Our brief, filed on behalf of CAC and six of the nation’s most prominent constitutional scholars – Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler – demonstrates that the text and history of the Fourteenth Amendment permit government to take race into account in certain circumstances in order to ensure equality of opportunity for all persons regardless of race.

For the last four decades, the fight over the constitutionality of race-conscious measures to foster equality has been reduced to a sound-bite – whether the Fourteenth Amendment is “color-blind” – with conservatives claiming the mantle of Justice Harlan’s dissent in Plessy v. Ferguson to argue that the Fourteenth Amendment prohibits virtually all use of race by the government. Progressives, all too often, have missed their most powerful rejoinder: the Fourteenth Amendment’s text and history. As our brief explains, not only does the Amendment’s text permit government to enact race-conscious policies to fulfill the Constitution’s promise of equality, but the Framers of the Amendment themselves enacted many such measures.

The Constitution is certainly color-blind to a certain extent. In writing the broadest textual guarantee of equality in our Constitution, the Framers of the Fourteenth Amendment very deliberately rejected limitations on the scope of the Equal Protection Clause, sweeping men and women of all races and classes into its coverage. As the text of the Equal Protection Clause makes clear, every person can invoke its universal guarantee of equality. It was precisely for this reason that Justice Harlan declared in Plessy that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But color-blind does not mean blind to reality.  Both in writing the text and in enacting race-conscious measures to foster equality, the Framers of the Fourteenth Amendment resoundingly rejected the notion that the government could not take race into account in order to ensure equality of opportunity for all persons regardless of race. Faced with the task of fulfilling President Lincoln’s promise of a “new birth of freedom” and integrating African Americans into the civic life of the nation, the Framers recognized that the Constitution could not be simplistically colorblind.