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April 16th, 2010

Identity Jurisprudence

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Written by Nathan Tucker

As the media continues to speculate over who President Obama will appoint to replace Justice John Paul Stevens on the Supreme Court, one thing is abundantly clear—their obsession with identity politics.  Liberal constituencies have put together their wish list of “firsts” for the nominee:  the first black female justice, the first gay justice, or the first Native American justice among other possible firsts.

The Obama White House has shown that the identity of its nominees is almost as important as their ideology.  According to Brookings Institution’s Russell Wheeler, Obama’s nominees have “included proportionately fewer white men, slightly more Hispanics, substantially more African-Americans and Asian-Americans, and more sitting judges” than his predecessor did.

But President Bush was not immune to engaging in affirmative action for the judiciary.  Bush, bowing to the intense pressure to nominate a female to replace the retiring Justice Sandra Day O’Connor, the first woman to sit on the Supreme Court, nominated Harriet Miers, a nomination which went from bad to worse and which was later withdrawn.

Underlying this obsession with identity politics, however, is the insidious and prejudiced belief that all people of a specific gender or race think alike and would rule on cases in the same way.  Rather than looking solely at the merit of a particular nominee, proponents of affirmative action for the federal bench would categorize nominees by their gender and race and thereby presume to know how they would vote on particular cases.

Women are presumed to vote to uphold Roe v. Wade, blacks are assumed to support the liberal civil rights agenda (including affirmative action), and a wise Latina woman, “in the richness of her experiences[,] would more often than not reach a better conclusion than a white male.”  Given this, I suppose the ideal “master race” for a justice would be a transgender of mixed racial-minority background.  And last, but not least, white men are presumed to be narrow-minded Neanderthals who are for big business and big government against the little guy.

But not only do identity politics categorize nominees by gender and race in violation of equal protection, it transforms the law itself from blind, neutral justice to a matter of genetics.  Though while those who indulge in identity politics do so in the name of diversity, they too often speak only in terms of race or gender—rather than one’s economic, social, and educational background—as the reason they would bring a diverse perspective to the table.

The logical conclusion of a racial/gender wish lists for judicial nominees is that one’s genetic makeup predestines one’s ideology.  But as Justice Antonin Scalia noted in an interview on CNBC shortly after O’Connor’s retirement, “as far as the product of the court is concerned, [a female replacement] makes no difference at all.  I don’t think there’s…a female legal answer to a question and a male legal answer to the same question.  That’s just silly.”

The law should mean the same thing, regardless of the gender or race of the particular judge before which the case is heard.  If it doesn’t, then the law can be manipulated by simply court-packing the federal bench with gender or racial clones who all think a particular way.

The logical consequences of identity politics lead to only two options—apartheid or genocide.  For if our morals, values, and ideology are preordained by our genetics, we must either live under an apartheid system, whereby each would live with their own kind in separate communities according to their own rules, or the law is then reduced to racial and gender warfare in which the winner takes all.

Identity politics is nothing more than blatant group-based discrimination, and it is only by refusing to play this game that we can fulfill Dr. Martin Luther King’s dream of “a nation where [we] will not be judged by the color of [our] skin but by [our] character.”

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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