“Boldly Ahead Of His Time”: South Carolina Republicans Snub Desegregation Judge
Of all the names of American heroes you probably don’t know, Julius Waties Waring has to rank near the top of the list. Waring was a judge in South Carolina in the mid-20th century. He’s famous to those who know for many courageous stands, but he’s probably best known for writing in one opinion that “separate educational facilities are inherently unequal.” That was in 1951, three years before Brown v. Board of Education. In Charleston, South Carolina. Now that’s a set of stones, no?
Charleston these days is a gorgeous and ever more cosmopolitan city where, if you pick your spots carefully—the art galleries, certain restaurants—you can run into more Democrats than Republicans, maybe. But Chucktown has been molasses-slow to acknowledge the brave legacy of Waring. Finally this month, he got his due. A statue was dedicated outside the same federal courthouse building where he heard his cases.
Everyone of course came. Oh, wait. Everyone didn’t come. Some Democrats showed up, led by Eric Holder. But no local Republican of any note came.
According to the Charleston Post and Courier, Sen. Lindsey Graham had another event he’d planned “months before.” Rep. Mark Sanford, the Appalachian trail-hopping ex-governor who now represents the city in Congress, spent the day in Washington. (It was a Friday.) And the best excuse of all goes to Tim Scott, the junior senator after Graham, who is African-American. Scott had some meetings, and then “some personal things that needed attending.” He at least did send an aide.
If this seems like a small, so-what kind of thing to you, I submit two thoughts. First, you’re maybe not familiar enough with Waring’s career. He made it to the federal bench in 1942. He made, for a few years, no unusual rulings, although being on the bench did bring him face to face with his city and state’s official segregation in a way that simply being a prosperous attorney had not. He began by ending segregation in his courtroom. Somewhere in there he divorced his first wife, a Charleston girl, and took up with and married a Connecticut woman, who may have influenced his views. He issued an opinion holding that the state had to pay black teachers the same as it paid whites, and another ordering that the University of South Carolina law school admit black students, or that the state open a truly equal law school for African-Americans.
In 1948, Waring ended the state Democratic Party’s “white primary” and ruled that Charleston’s “Negroes” were entitled to “full participation in [Democratic] Party affairs.” The party had to let them enroll and vote, which they did, 35,000 strong, in that year’s primary elections. (Yes, as conservatives will gleefully note as if they’re scoring a point by mentioning 80-year-old and no longer relevant history, the Democratic Party was the racist party at the time.)
Then in 1951 came his famous dissent in Briggs v. Elliott, in which he wrote the sentence I quote above. Waring’s famous sentence came from his dissent—that is to say, by 2-1, the three-judge federal panel upheld South Carolina’s segregation. But the Supreme Court agreed to hear Briggs, which it then combined into Brown. When the high court ruled in Brown, the Charleston circuit court, of course, reversed itself. So Waring was boldly ahead of his time, and he provided the jurisprudential basis for Brown by being the first-ever federal judge to say, plainly and straightforwardly, that segregated schools were wrong and that “separate but unequal” was a practical impossibility and a pernicious lie.
So he was a huge figure. Charleston had rejected him in part because he rejected it. He retired shortly after his Briggs ruling and moved with his wife to New York City, of all lamentable places, obviously wanting to have nothing to do with Charleston, the South, or any of it. But now the city has finally decided to honor its own, so let’s not pretend no one down there understands the importance of what he did.
The second thought I submit is that while politicians do indeed have scheduling commitments that arise months in advance, they also cancel them regularly to go do something else. I’ve been on the business end of some of those cancellations myself. So Graham, Scott, and Sanford could have found a way to make it to Charleston if it really mattered to them.
I am not saying that the fact that they didn’t go makes them racists. That would be unfair in Graham’s and Sanford’s case, and kind of preposterous in Scott’s case. I am saying, however, that it seems as if they didn’t go because, well, no one they knew and cared about wanted them to go. For Graham, certainly, locked in a primary fight against Tea Partiers, but really for any South Carolina Republican no good could possibly come of attending a celebration of one of the state’s most important liberals.
The presence of Holder, Mr. Fast and Furious himself, only made things worse. Why, imagine. What with everyone having cameras on them these days, someone might have snapped a picture of one of the Republicans shaking Holder’s hand! So it’s not a reflection on the men—although it is that—so much as it is on the modern GOP, Palmetto State Branch. And it’s shameful.
Meanwhile, across our United States, schools are resegregating at a record clip, thanks to the Republican appointees who constitute a Supreme Court majority that believes trying to desegregate schools by edict is nearly as malevolent as the old practice of segregating them. The resegregation is happening faster, surprise surprise, down South than anywhere else. What they seem to need are more tributes to figures like Waring, and Republicans in particular are the people who need to attend them.
By: Michael Tomasky, The Daily Beast, April 21, 2014
“Dignity Is A Constitutional Principle”: Institutionalized Humiliation And The Constitutional Requirements Of Equal Protection
With gay marriage litigation moving forward at warp speed — federal judges have struck down five state bans on same-sex marriage since December — we may soon witness one of the worst shouting matches in Supreme Court history. Passions were already running high last June, when a divided court struck down federal, but not state, laws defining marriage exclusively as a relationship between a man and a woman. Justice Antonin Scalia denounced the majority opinion, which cited the demeaning and humiliating effects of the Defense of Marriage Act, as “legalistic argle-bargle” lacking any basis in our constitutional tradition. Writing for the five justices in the majority, Justice Anthony M. Kennedy countered that the assault on human dignity should be decisive in condemning the statute as unconstitutional.
In making this “dignitarian” move, Justice Kennedy relied principally on his two earlier pathbreaking opinions supporting gay rights, in 1996 and 2003. He did not link his guiding philosophy to the broader principles hammered out during the civil rights revolution of the 1960s. Yet that constitutional legacy would strongly support any future Supreme Court decision extending Justice Kennedy’s reasoning to state statutes discriminating against gay marriage. Indeed, the court should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution — and thereby demonstrate that it is Justice Scalia, not Justice Kennedy, who is blinding himself to the main line of constitutional development.
Consider the great speeches made 50 years ago today as the Senate began its decisive debate on the Civil Rights Act of 1964. The bill’s floor managers were the Democrat Hubert H. Humphrey and the Republican Thomas H. Kuchel. As they surveyed the scene on March 30, 1964, it was far from clear that they had the 67 votes required to break a filibuster led by Southern senators. So they were determined to make their case to the larger public and mobilize popular support for a sustained effort to win a cloture vote.
As The Washington Post reported at the time, the two floor leaders dominated the first day’s proceedings with elaborate presentations that set the stage “for a serious no-nonsense debate” on the fundamental issues. Humphrey began with a remarkable three-and-a-half-hour speech that introduced the central theme of humiliation by comparing two travel guidebooks: one for families with dogs, the other for blacks. “In Augusta, Ga., for example,” Humphrey noted, “there are five hotels and motels that will take dogs, and only one where a Negro can go with confidence.” He argued that if whites “were to experience the humiliation and insult which awaits Negro Americans in thousands and thousands of such places, we, too, would be quick to protest.” Kuchel followed up with a second major presentation, emphasizing the “urgency” of ending the “humiliating forms of discrimination” confronting blacks.
On other occasions, Humphrey repeatedly linked this anti-humiliation principle to the larger aim of securing “freedom from indignity” for blacks and other groups. This link was further reinforced by President Lyndon B. Johnson. “We cannot deny to a group of our own people,” he argued, “the essential elements of human dignity which a majority of our citizens claim for ourselves.” In making their case to the American people, these leaders succeeded in pressuring Senate fence-sitters to close down the filibuster, on June 10, after it had monopolized the floor for more than two months.
But they failed in their larger aim. Their elaborate speeches were also addressed to future generations, articulating fundamental principles that Americans should consider in defining the terms of constitutional equality. Yet as Justice Scalia’s denunciation of Justice Kennedy’s opinion illustrates, America’s lawyers and judges are in danger of consigning these views of Congress and the president to legal oblivion. They seem to suppose that the only civil rights opinions worth studying are those of the Warren and Burger courts — even though the judicial initiatives of those courts would have gone nowhere without the mobilized support of the political branches and the American people.
This is a mistake. To be sure, the judges of the civil rights era also emphasized the link between institutionalized humiliation and the constitutional requirements of equal protection. Most famously, Brown v. Board of Education declared school segregation unconstitutional precisely because it stigmatized blacks, generating “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Yet once we recognize that Congress and the president broadened and deepened the nation’s commitment to Brown’s anti-humiliation principle, we can gain a larger perspective on contemporary civil rights struggles.
This point applies not only to gay marriage but also to sexual harassment. When the courts condemn “harassment” on the job or in schools, they are using a different word to describe the very same dynamics of institutionalized humiliation repudiated by the framers of the Civil Rights Act.
This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States?
Fifty years ago, our parents and grandparents faced the same question when confronting the humiliations imposed on blacks. As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”
By: Bruce Ackerman, Professor of Law and Political Science, Yale University; Opinion Writer, The New York Times, March 29, 2014
“Diversity Is A Faddish Theory”: According To Clarence Thomas, Affirmative Action Is Just Like Segregation
Today, the Supreme Court sent the University of Texas’ affirmative action program back for a lower court for review by a vote of 7-1.
Justice Clarence Thomas concurred in that decision but also wrote a scathing concurring opinion saying he would have rejected Texas’ affirmative action program outright as unconstitutional.
In the opinion, which no other justice joined, Thomas called the idea that racial diversity at colleges improves education a “faddish theory.”
“As should be obvious,” wrote Thomas, “there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity.”
Thomas repeatedly compared arguments for affirmative action in college admissions today to arguments for segregation in the 1950s and before. Here’s Thomas:
It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society… The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks…
There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.
He went on to associate his view with the arguments made by the plaintiffs in Brown v. Board of Education, the 1955 decission that prohibited racial segregation in public schools:
My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”… The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.
Thomas also wrote that universities’ arguments about promoting diversity are canards and their real goal with affirmative action is to help black and Hispanic students—but that they’re not actually helping.
He wrote that “discrimination is never benign” and “the University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”
Thomas made two arguments that affirmative action hurts black and Hispanic students: It leads to them being admitted to schools where they have, on average, significantly lower SAT scores than white and Asian students; and it creates an impression (both internal and external) that their admissions are not based on merit.
Given the high bar that Thomas places for allowing any public policy that discriminates based on race, this policy analysis wouldn’t matter for the constitutionality of the Texas program.
By: Josh Barro, Business Insider, June 24, 2013
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