The calls of the Right for certain qualifications for any Supreme Court nominees fairly reek of racial code. On the surface, they seem to be fair arguments-- after all, who can argue with removal of emotion or a healthy consideration of the written law?-- but beneath that surface is a very insidious message of racist code.
Take Empathy. This weekend, John Yoo, probably the most empathetic personality in America as evidenced by his torture memos, framed empathy as the enemy of impartiality;
"Empathy has a proper place in other areas of life, such as medicine or charitable work. And the law does take account of a party's identity when necessary - in deciding whether someone has suffered racial or gender discrimination, for example. But judges should not apply these rules differently in individual cases because of the skin color, or sex, or religion of the plaintiff or defendant." (Philadelphia Inquirer, May 10, 2009)
But the Supreme Court is often called upon to rule on the basic 'fairness' of laws. Laws which have a disparate impact on different races, sex, or religions are regularly in some stage of review at various levels of the Judiciary.
Two major examples spring immediately to mind: Crack and the Death Penalty. These are two major issues which have come up time and time again as having a disparate impact on minorities; crack, because of the mandatory minimum sentences associated with it as compared to regular cocaine, and the fact that usage of the two variants has been well documented as falling more or less along racial lines, and the death penalty because of its being more frequently sought and applied against minority groups.
Quite simply, a claim that empathy has no place in the Judiciary, particularly at the Supreme Court, is ridiculous. It is exactly these sort of disparate impacts which the Judiciary is responsible for reconciling, and empathy/ understanding of the societal context of the cases before them is crucial to a Just decision.
And, naturally, the Rule of Law. Sen. Sessions, that great bastion of racial sensitivity, laid out the most damning of dog whistles ever in the Washington Post today.
"The nominee should demonstrate a commitment to the design of our Constitution, under which the people's elected representatives in Congress make the laws and judges interpret the laws as written and intended. It is a judge's consistent adherence to the written law -- serving as a neutral umpire, calling balls and strikes fairly, regardless of personal feelings -- that protects our property, our families and our very freedom."
This is, of course, the most blatant of dog whistles. Reference again my comments above on the issues of disparate impact. Any call for a strict adherence to the Rule of Law is of necessity a call to strike down the classic cases like Brown v. Board of Education, and to prevent anything more like them from happening. With our system of Checks and Balances, the Judiciary is obligated to form a Check on the Executive and Legislative Branches of the Government. If they are to merely "interpret the laws as written and intended", as Sen. Sessions states, Then how could they have decided a case like Brown v. Board of Education, where the law was both written and intended to keep Blacks and Whites separate?
I don't mind that there are different views on how to take the country forward, and what role the Judiciary should play in that-- that can be a very healthy debate. But, we can't-- and shouldn't-- have a debate based on disingenuous terms, where racially-motivated terms are couched as 'honest' positions. Sport analogies, for example, are a frequent choice for politicians. And where they argue, as Sen. Sessions and John Yoo both do, that Justices should serve as "a neutral umpire, calling balls and strikes fairly", one can easily postulate the counter-argument, that umpires and referees in many sports are frequently asked to go beyond merely calling balls and strikes, by having to question the intent of players when ruling on unfair play (e.g. Flagrant fouls in Basketball, or yellow/red cards for fouls in Soccer). Whether the Judiciary has or should have the same latitude in their decisions is certainly fair play for debate-- that is, after all, part of the Legislative Branch's check on the Judiciary.
But that sort of debate would have to take place in a world outside of where we currently are, where Senators are still invested in the "Southern Strategy", and still using their dog whistles to call to an unfortunate racist sub-element of the country.