THE STILL UNFULFILLED PROMISSORY NOTE
Guest Commentary, Seeta08
With America's citizenry becoming increasingly diverse, a predominantly white male judiciary at both the state and federal levels is a fundamental threat to judicial fairness in a democratic society, given the judiciary's lack of cultural knowledge and experience in a pluralistic society, and wholesale acceptance and belief that white male heterosexuality is the benchmark of normativity.
Earlier this year, immediately prior to my swearing-in ceremony to "practice law," notwithstanding my desire to appear anti-establishment-nonchalant-cool, and notwithstanding my distaste for jingoistic pledges or displeasure with references to deities in connection with State entities (further, I always thought loyalty and commitment was a two-way street -- where's my country's commitment and loyalty to me?), i welled-up with unexpected emotion and unshed tears while reciting the last refrain of the "pledge of allegiance":
"one nation
under god, indivisible,
with liberty
and justice for all."
<br/ ></p>
The weight of that still unfulfilled promissory note and the path of adversity I traveled to get to that moment washed over me as i reflected on where I came from (demerara, guyana), the moment i recited 'the pledge' with my father as we both became 'naturalized' citizens, and what it felt like as a child to be told that I could not have a library card unless I furnished proof of legal status by a xenophobic, racist white female librarian at my then local library.
Without any institutional support whatsoever, and after much perseverance and sacrifices made/still being made -- culturally, psychologically, and financially -- I had broken through the intentionally-placed artificial barriers to this edifice of social status and privilege strictly reserved for, and originally designed to prop up, the white power structure paradigm of white male heterosexual normativity -- that is, the edifice we call the legal profession and our "justice system."
uppity immigrant, queer brown woman dropkicks the door down...door to what exactly?
Now, this uppity immigrant, queer brown woman routinely advocates civil rights claims (employment discrimination, police brutality, unlawful detention, etc.) in front of predominantly white male judges, who, in turn, routinely dismiss many of the claims based on politics, personal biases, and a fundamental lack of understanding about the systemic racial discrimination that people of color face daily. many of them do so happily without hesitation and with a complete lack of decorum in the courtroom.
Theoretically, the law and the judiciary should provide an avenue of justice, not further oppression and victimization. but the law is merely a language which embodies a narrative that codifies a culture written by those in power. the monochromatic judiciary, informed by their own cultural norms and narrow worldview, merely interprets that language, produces/reinforces narratives through their privileged eyes about black, brown, and/or queer folk, and dictates what type of conduct (and by whom) is acceptable in this heterogeneous society.
Many of us have had discussions about our cognitive and cultural dissonance with the legal profession/the judiciary, and the inherent un-holistic, privileged, ethnocentric approach to both advocacy and adjudication; specifically, the built-in adversarial zero-sum game nature of mediating "justice," and the white power structure's white normative benchmark used in adjudicating and administering justice are not hallmarks of a system that heals. these characteristics are hallmarks of a system that continually oppresses. (note: I would be remiss if I neglected to point out that the Criminal Injustice Kos series (a series created by our very own soothsayer99, RadioGirl, and ThisIsMyTime) dedicated a piece to contemplating more sustainable, healing alternatives to our current 'justice system.')
Contemplating and implementing a more holistic, authentic justice system requires increasing access to socio-economic and educational opportunities, calling for more transparency in the judicial election/selection/appointment process, and developing support systems for people of color to enter the legal profession and eventually become sitting members of the bench.
America becoming a rainbow, but judiciary still homogeneous and monochrome allowing white male hetersexist normativity to rule the land
Even as the American citizenry and voting population become increasingly diverse (with "minorities" to become the collective "majority" in the next 25 to 30 years), the judiciary at both the state and federal levels is still predominantly white male. therein lies a fundamental problem and obstacle to holistic justice, socio-economic, political parity, and uniformly applied justice.
For the sake of clarity, the color and the culture of judiciary is not skin deep, since when we discuss authentic diversity, we mean cultural, intellectual, and sexual diversity. the white monochrome color of the judiciary is a visual representation of the current cultural hegemony (white male heterocentrist, judeo-christian, capitalistic patriarchy) that must be dismantled and transformed.
This is evidenced in both the criminal and civil context. in the criminal context, black men are disproportionally charged with crimes, prosecuted, convicted and sentenced to longer prison terms than their white counterparts.
In the civil context, and in the employment discrimination context especially, race discrimination claims, which have increased over the past two decades, are routinely dismissed by a predominantly white male judiciary because the judges don't find the plaintiff's story "plausible." (note: plausibility is the legal standard for determining whether a plaintiff's claim can survive a defendant's motion to dismiss -- that is, the question is whether the plaintiff has enumerated sufficient facts to demonstrate he has a "plausible" claim).
Consider one particular example, where the 11th Circuit Court determined that a black-male plaintiff had not established a racially hostile work environment, pursuant to Title VII of the Civil Rights Act of 1964, even after he had been repeatedly called "boy" by his supervisor and coworkers, and his supervisor had referred to placing a noose around someone's neck. the Court held that the conduct was not severe and pervasive enough to rise to a level of hostile work environment. this case is not the exception, but the norm in the jurisprudence across the country. (I urge folks to read the decision, it is only seven pages long.)
Indeed, not only do these judges have unfettered discretion to make ad hoc determinations of whether people of color have plausible race discrimination claims or discretion to subject black men to disparate sentencing, but these judges have the prerogative to rely on their white male heterocentrist normative framework in their application and interpretation of the law. this is a complete dereliction of duty, abdication of responsibility, and disgrace of the office of the bench.
A 2009 study concludes:
"Our interpretation is that race affects a judge's ability to appreciate the perspective of a plaintiff of another race. Thus, White judges as a group are less able to identify and empathize with African American plaintiffs, making it inherently more difficult to find the plaintiffs' arguments plausible and credible. This interpretation helps explain why White judges deny African American plaintiffs' claims so often.
"In contrast, it appears that African American judges are more capable of transcending their own demography and do not let color influence their decision making. They can identify with African American plaintiffs, but also with plaintiffs of other races. At the same time, African American judges still discern between more or less credible claims, holding for plaintiffs only about half of the time."
state courts
While we don't need a study to tell us any of these things, the numbers are frightening. White male judges not only dominate the judiciary, but the number of black male judges at the state appellate level are actually decreasing.
According to the brennan center, white male judges are overrepresented on state appellate benches by a margin of two-to-one:
"Today, white males are overrepresented on state appellate benches by a margin of nearly two-to-one. Almost every other demographic group is underrepresented when compared to their share of the nation’s population. There is also evidence that the number of black male judges is actually decreasing. (One study found that there were proportionately fewer black male state appellate judges in 1999 than there were in 1985.) There are still fewer female judges than male, despite the fact that the majority of today’s law students are female, as are approximately half of all recent law degree recipients. This pattern is most prevalent in states’ highest courts, where women have historically been almost completely absent.
[...]
The problem is clear: even after years of women and minorities making strides in the legal profession, white men continue to hold a disproportionate share of judicial seats compared with their share of the general population. The question of why this pattern persists does not have an easy answer; the dynamic is created by the intersection of a number of complex factors."
Frankly, I maintain that we don't require a formalized "study" to uncover the monochromatic, monocultural nature of our judiciary. we experience the oppressive weight of the cultural hegemony every single day. but even while law school populations become more relatively diverse, the non-transparent judicial selection/appointment process is still governed by more white men with biases against disadvantaged groups and rigid beliefs that the jurisdiction of what is rational and logical belongs solely to white men.
federal courts
The numbers speak for themselves:
[source: The Myth of the Color Blind Judge (2009 report)]
[source: The Myth of the Color Blind Judge (2009 report)]
how's President Obama doing on this front?
As of mid-July 2010, the philly inquirer notes that "nearly half of Obama's 73 appointments to the federal bench have been women, 25 percent have been African American, 11 percent Asian American, and 10 percent Hispanic. About 30 percent of Obama's nominees were white males. By contrast, two-thirds of George W. Bush's nominees were white males."
"Obama's rate of appointing women and people of color is higher than those of any of his predecessors during the first year of their terms."
[source: philly inquirer]
However, due to Republican'ts obstructionist tactics, the Senate has confirmed fewer nominees under President Obama than under the previous five administrations during their first year in office.
To quote Robinswing and others from Sistah Speak, nothing is more dangerous than a wounded animal, folks.
And we must maintain our ground and fight back stronger than ever before. judicial fairness demands it.
It's high time that we demand payment on that promissory note
"As a legal community and as a diverse society, we should not be blind to the color of judges."
[source: The Myth of the Color Blind Judge (2009 report)]
the fundamental truth is this: America is a country borne out of a the literal and cultural genocide of its aboriginal population, built on the backs of former black slaves and the currently disenfranchised, exploited prison labor of the inmate population (disproportionately comprised of black men), and comprised by a population of immigrants from different cultural, psychological, religious, educational, and political traditions. it is high time for America's legal structures to reflect the population they serve. after all, after winter, must come spring.
together we will dismantle and transform the system so that one day the promissory note of "liberty and justice for all" will be fulfilled.
Let's consider how we can make advocacy and adjudication more holistic, consider what we mean by holistic, how we can increase access for people of color to become members of the bench, and how we can make the judicial selection/election process more transparent and accountable. let's identify challenges, and how we can start to overcome those challenges.
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NEWS
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Everyone has surely heard of the Sherrod travesty. TheRoot: Shirley Sherrod, the Media and Conservative Fantasies
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The best thing that could come out of the injustice done to Shirley Sherrod is a warning to America of the explosive danger of allowing a volatile topic like race to be driven by proto-journalists with political agendas in a news ecosystem that has no quality filters or brakes.
In this new age of unregulated news and the relentless 24-hour news cycle, anyone with a camera (or video-editing software) becomes a source.
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One of the greatest civil rights leader. Mail & Guardian: Time for me to slow down, says Tutu
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who became a global figure for using his church pulpit to help bring down apartheid, said on Thursday he would retire from public duties later this year.
"The time has now come to slow down," Tutu said in Cape Town during a nationally televised news conference.
Tutu said he would step down in October when he turns 79 so that he "could sip tea in the afternoon" with his wife, enjoy more time with his family and spend time watching sport.
The congenial Tutu, who retired more than a decade ago from his post as the Anglican archbishop of Cape Town, has established a peace foundation, advised political leaders, served in a council of retired global statesmen and women, and had been an active public speaker.
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Black farmers are still having a hard time. The Grio: Black farmers are the real victims of USDA discrimination
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Agriculture Secretary Tom Vilsack was direct, forceful and blunt when he said that the USDA does not tolerate racial discrimination. This was Vilsack's widely circulated public explanation for firing Shirley Sherrod. There are two problems with this. One, the world now knows that Sherrod did not do or say anything to merit being branded a bigot and sacked. Vilsack and President Obama subsequently apologized to Sherrod and offered her her job back.
The second problem is more troubling. Vilsack should have been talking about the shameful and disgraceful treatment of black farmers by his agency, and the equally shameful and disgraceful treatment of the farmers by Congress. The day after Vilsack issued his lofty pronouncement about zero tolerance for racial discrimination, Gary Grant, President of the 20,000 member Black Farmer & Agriculturalists Association, flatly called Vilsack's statement "a complete lie." He had good reason. During the past quarter century, tens of thousands of black farmers have lost their land, homes, and livestock, due to the blatant refusal by the USDA to make or guarantee loans to them.
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Court cases are being decided an the American people are asleep at the wheel. TheRoot: What the U.S. Supreme Court Did to Us This Year
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Now that the Senate Judiciary Committee has voted along party lines to confirm Solicitor General Elena Kagan for a seat on the U.S. Supreme Court (and full approval by the Democratic-controlled Senate seems like a shoo-in), a new chapter in the court's history will begin.
Kagan will join a court whose conservative majority has aggressively taken and decided cases that are transforming the constitutional landscape in ways that will have far-reaching effects. Some Supreme Court analysts have rated the court's actions in the just-concluded term as unremarkable. But for average Americans and for minority communities, the 2009-2010 term of the court is a significant one.
The court's review of several cases involving the Sixth Amendment is especially important. The Sixth Amendment includes, among other guarantees, the right to effective assistance of counsel, the right to a jury made up of a fair cross-section of the community and the right to an impartial tribunal. When the court decides nearly half a dozen cases involving this constitutional amendment in a single term, it can hardly be described as unremarkable.
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This is some really good news, and not just for Africa. The Grio: Gel breakthrough changes face of Africa AIDS fight
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JOHANNESBURG (AP) -- South African research that helped produce a promising anti-AIDS gel will change the nature of the fight against the disease, the head of the university that pioneered the research said Tuesday.
Malegapuru Makgoba, vice chancellor at the University of KwaZulu-Natal on South Africa's east coast, described the project that created the vaginal gel as a "milestone" for impoverished women, policymakers and scientists in combatting the disease that has plagued the African continent for three decades.
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Voices and Soul
by Justice Putnam
Black Kos Poetry Editor
For those of the Black Community who have been incarcerated, Due Process was really a Dual Process; and Equal Protection was really Unequal. It is an old tale, as old as America, sadly; and one that seems to be unchanged now or in the future. Etheridge Knight spent eight years in Indiana State Prison. He chronicled his time there; and later, after his release in 1968, became an important part of the Black Arts Movement. Though many of his poems speak of redemption, many more also speak of hope lost; and of the mind-numbing passage of time, locked in a warren of oppressive authority.
Hard Rock Returns To Prison From The Hospital For The Criminal Insane
Hard Rock/ was/ "known not to take no shit
From nobody," and he had the scars to prove it:
Split purple lips, lumbed ears, welts above
His yellow eyes, and one long scar that cut
Across his temple and plowed through a thick
Canopy of kinky hair.
The WORD/ was/ that Hard Rock wasn't a mean nigger
Anymore, that the doctors had bored a hole in his head,
Cut out part of his brain, and shot electricity
Through the rest. When they brought Hard Rock back,
Handcuffed and chained, he was turned loose,
Like a freshly gelded stallion, to try his new status.
and we all waited and watched, like a herd of sheep,
To see if the WORD was true.
As we waited we wrapped ourselves in the cloak
Of his exploits: "Man, the last time, it took eight
Screws to put him in the Hole." "Yeah, remember when he
Smacked the captain with his dinner tray?" "he set
The record for time in the Hole-67 straight days!"
"Ol Hard Rock! man, that's one crazy nigger."
And then the jewel of a myth that Hard Rock had once bit
A screw on the thumb and poisoned him with syphilitic spit.
The testing came to see if Hard Rock was really tame.
A hillbilly called him a black son of a bitch
And didn't lose his teeth, a screw who knew Hard Rock
>From before shook him down and barked in his face
And Hard Rock did nothing. Just grinned and look silly.
His empty eyes like knot holes in a fence.
And even after we discovered that it took Hard Rock
Exactly 3 minutes to tell you his name,
we told ourselves that he had just wised up,
Was being cool; but we could not fool ourselves for long.
And we turned away, our eyes on the ground. Crushed.
He had been our Destroyer, the doer of things
We dreamed of doing but could not bring ourselves to do.
The fears of years like a biting whip,
Had cut deep bloody grooves
Across our backs.
-- Etheridge Knight
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send some brown sugar and love to the Black Kos family at NN '10!
And speaking of reflecting the population, let's all send some love to the Black Kos family at NN '10 as we await to hear and learn more about their observations and experiences.
Happy friday, my loves! i'll try to be in and out today, but my schedule may not accommodate (tengo que trabajar para ganar algo de dinero para pagar mis vacaciones la semana que viene!).
Discuss among yourselves. pull up a chair and have some brown sugar. ;-)
Hate it or love it the underdogs' on top
And I'm gon' shine, homey until my heart stop